Thursday, March 24, 2016

Some thoughts about how we failed, and what we can learn, from the Ghomeshi trial

For me, the outcome of the Ghomeshi case was disappointing, but not unexpected. In my view, the justice system, in its broadest sense, failed. In analyzing what went wrong, we must look far beyond the courtroom. There were, to be sure, inconsistencies in the testimony of the witnesses. Some may have been errors, others likely deliberate shading of the truth. Details were omitted. In those circumstances, it is understandable that the judge found he could not rely on their evidence alone to find guilt beyond a reasonable doubt. Since there was no other evidence, an acquittal was appropriate.
There is a sad irony in this case: we've made some progress in sexual assault cases. It is no longer proper to question a complainant about what she was wearing, or about her sexual history. We've written into law protections for complainants against the former practice of digging into medical files, psychiatric records, and former relationships. These practices were based on so-called "rape myths": the prejudicial assumptions that a woman's character, sexual history, etc could tell us whether the alleged assault was likely to have occurred. Or, more bluntly, whether she is lying about being assaulted, or was asking for it, or is somehow to blame because of her manner of dress, choice of place or companions. In the Ghomeshi case, however, all of these myths became a part of the unspoken narrative. They could be introduced only because the witnesses had given inconsistent statements to the media, the police, and the court. So many things that would have been inadmissible became admissible, ostensibly for the limited purpose of attacking the witnesses' credibility. But once those rape myth bells have been rung, they can't be unrung. The evidence is in, and any conscious or unconscious bias a judge or jury might have is put into play. Thus the irony: evidence that would not have been admitted, because it's abusive and not probative, became admissible because the complainants did not disclose it, because they feared abuse and did not think it was probative.
I lay some of the blame at the feet of the Crown. To me, it appeared that the witnesses had not been properly prepared for the trial. They did not seem to know what to expect. They should have been told that every interaction they ever had with Ghomeshi could be relevant, that the defense would likely have every email ever sent, every photo, every letter. They should have been provided with those things, been asked to review them, to refresh their memories, so that they could think about the entire context before the high pressure situation of a cross-examination.
At the heart of the broader failure, though, lies this question: why did the witnesses not tell the whole truth? What prejudices do we have as a society that makes a person fear telling the whole truth about abuse within a relationship? Why did they feel that they couldn't tell some parts of the story? Partly to avoid embarrassment. Partly because they worried that those details would make it less likely that they'd be believed about the assaults. But it is unfair to say that those are failings of the women alone. They are failings in all of us. It is the preconceived notions of those of us who have never been in that situation that creates the fear of embarrassment, and the fear of not being believed. If we want justice to work in cases of sexual assault, we must work as a society towards creating an atmosphere where the victims will feel supported, not embarrassed. Where they'll be met with understanding, not derision, when they explain that even after the assault, they went back to their abuser, that they didn't immediately go to the police, or that they wrote friendly, even flirty emails or letters to their abuser after the assaults. Only when we are prepared to listen without judgment, will they be prepared to tell the truth, the whole truth, and nothing but the truth.