Today, disgraced former CBC broadcaster Jian Ghomeshi was acquitted on four counts of sexual assault and one count of overcoming resistance by choking. Because this happened only this morning, we don’t yet have the perspective on this that time will afford us. But the immediacy of the response to this case—mostly one of public outrage—on Twitter and elsewhere bears out certain truths of the case. The acquittal comes at a very interesting discursive center, at the intersection of the law with an almost entirely positive cultural shift toward the support of sexual survivors, perhaps most succinctly encapsulated (in the last couple hours, anyway) by the trending hashtag #IBelieveWomen.
To many people in the general public, this verdict comes as an unpleasant shock. To those who followed the trial and watched it unfold, it was more like the unpleasant arrival of what anyone ought to have known was coming. Those who were ignorant or dismissive of the facts of law got blindsided by this acquittal like a freight train. The rest of us were like good old Nell Fenwick from the Dudley Do-Right cartoons: we knew very well the train was coming, but—to use a chillingly appropriate metaphor—our hands were tied.
It’s not by accident that I make reference here to Dudley Do-Right, one of the most beloved depictions of Canadian justice, and also one of the most egregiously sexist and outmoded portrayals of nonconsensual BDSM. In the immediate wake of the acquittal, most Canadians commenting on the issue seem to understand that the victims/witnesses in Ghomeshi’s trial have now been wronged twice: once by wicked Snidely Whiplash-wannabe Jian Ghomeshi, and once by the forces of justice—the police and the Crown—who have dropped the ball so completely in this case that the caricature above of a Mountie riding his horse backwards right past the scene of sexualized violence, tipping his hat cordially, makes this 55-year-old cartoon image look like a surprisingly apt political cartoon that was made just this morning.
Indeed, Ghomeshi’s victims should be believed, particularly by us the public. An acquittal, in some ways, obligates us to understand that Jian Ghomeshi did not assault these women, yet basic public decency demands that we continue to believe that these women were assaulted by Jian Ghomeshi. This is one of the great paradoxes of justice in our society, a difficult tangle to resolve at the nexus where cultural justice and common law collide. And yet it is a paradox whose resolution is built into it: an acquittal means something very specific to Ghomeshi and him alone: it is not the court’s way of advising us to stop believing these women, and I’m relieved to see the public, on the whole, is in no mood to do that. But I’m less relieved to see that they’re being galvanized by a straw-man, based on a false understanding of what happened and why in the case of R v Ghomeshi.
Reading in full judge William B. Horkins’s decision in the case, a number of things become clear. The sound-bite with the most shock value, and the one that will no doubt get the most airplay in the general press, is the judge’s unfortunate mention of “the equally dangerous assumption that sexual assault complainants are always truthful.” Over the last hour, a bad case of Twitter Telephone Game has resulted in a grossly misquoted version of this quote trending. The two most common variants:
1.”We must fight against the stereotype that all sexual assault complaints are truthful.”
2.”We need to fight the stereotype that all sexual assault complaints are truthful.”
Both of these are pretty offensive; taken out of proper context and dumped into the Twitterverse, they become even moreso. The judge’s “we,” a word he never used, oversteps the authority and the bounds of the Court, and turns (against his will) an administrator of justice into a pundit for public morality. Who is this we? The imagined Twitter-judge is telling the online public how to feel, in a misquote clearly inclined to make us feel the opposite. Indeed, if any judge said this, we should be suspicious of that judge’s motives and overreach. If Justice Horkins had said this, it might sow the seeds for a Crown appeal of the acquittal (I don’t know for certain; I’m not a yet a for-real lawyer). But of course he didn’t, because no sitting judge in a high-profile trial would be so unprofessional as to break the fourth wall and speak to the Twitterverse in his decision.
The actual quote, in context, for anyone who’s interested, was this, from ¶135 of his decision:
“the courts must be very cautious in assessing the evidence of complainants in sexual assault and abuse cases. Courts must guard against applying false stereotypes concerning the expected conduct of complainants. I have a firm understanding that the reasonableness of reactive human behaviour in the dynamics of a relationship can be variable and unpredictable. However, the twists and turns of the complainants’ evidence in this trial, illustrate the need to be vigilant in avoiding the equally dangerous false assumption that sexual assault complainants are always truthful. Each individual and each unique factual scenario must be assessed according to their own particular circumstances.”—R v Ghomeshi (2016) at para 135, Horkins J
As a rationale for the verdict, which is all this text is intended or obligated to be, the principles seem far more fair, and far less prejudicial against victims, than the outrage-friendly variant soundbite that’s trending. Who indeed can argue that false assumptions shouldn’t be avoided? Who can argue that individuals shouldn’t be evaluated according to their own circumstances?
People can suggest that I’m arguing semantics; my response is that semantics are important. The false version of the text—the one being circulated to drum up disgust for the decision and antipathy toward the judge—is a piece of misogynistic social preaching. The true version of the text—the one actually rendered in the decision, and the one on which any effort by the Crown to appeal would be measured—is a sober explanation of the principles of judging each case on the basis of its own facts. It is a description of the judicial obligation to get the facts right, rendered here as a preface to the judge’s admission that, given the huge factual inconsistencies in the testimony, “getting the facts right” is something he’s unable to do, hence the acquittal.
The ease with which the judge’s words have instantly been misquoted to serve the purpose of public outrage has a lot to say about why the court of public opinion must forever remain separate from the actual administration of justice. Likewise, when people are worried that the cultural takeaway from this verdict will be “don’t report sexual assault, because no one will believe you,” that is a valid worry, but only because people are completely misunderstanding the decision and the principles on which it was based. For instance, Erin Ellis, a lawyer with Jellinek Law in Toronto, has observed to Global News:
“I have some fear that the verdict and the way the trial turned out that it will help reinforce the myth that many sexual assaults are made up or fabricated. That is not the case. very, very few allegations of sexual assaults are made up.”
This is a truism. Very few allegations are false. But Ellis’s very valid fear is the fear that people are going to get the wrong idea. What the judge said, in essence, is “we should not assume allegations to be true.” This is nowhere near what people are hearing, which is “we should therefore assume allegations to be false.” Nowhere does he suggest this, and the people who are hearing it are not hearing the words of the Court: they’re hearing the omnipresent words of rape culture. It’s this culture, not the court, that has to be changed if we want our true allegations to result in real convictions of abusers. It’s the failure of our culture, not our court, that led to Ghomeshi’s acquittal. And in some ways, even the very important, very good cultural shift toward #IBelieveWomen has played a significant role in Ghomeshi’s escape from conviction.
Let me explain:
There is a tension between our inviolable principle “innocent until proven guilty”—that is, believing the accused by default—and our equally inviolable principle of #IBelieveWomen or #IBelieveSurvivors—that is, believing the accuser by default. Failing to do either of these will at some point result in innocent people being wronged; and so we try to do both, even when an extremely binary understanding of criminal law as a matter of innocent/guilty suggests to us that logically, only one or the other can be telling the truth. The cultural change behind the hashtag #IBelieveSurvivors is a really important one: it recognizes that because so few allegations are false, believing survivors on the whole will result in fewer innocents wronged. The age-old utilitarianism of John Stuart Mill, Jeremy Bentham and all the rest, suggests that this is ethical best-practice. Even Mr. Spock contends that “the needs of the many outweigh the needs of the few.” And although Spock is no legal authority, and Star Trek exerts no pressure on common law, it does exert a pressure on culture, and through culture our public morality.
Now, a cultural shift toward giving victimized women the benefit of the doubt is in pretty much any case a universally good thing. I stand behind #IBelieveWomen, but more importantly in this age of fast-food philosophy, I stand behind the entire larger cultural shift toward giving women in general and sexual assault victims in particular greater support, greater credibility, greater sympathy, more power to protect themselves, greater agency over their own bodies, and more clearly defined rights based on consent. These principles are universally good and everybody should support them. That’s easy enough to say.
But given the extremely rigorous demands of criminal law, what the Ghomeshi trial shows us that there is a huge problem in how these principles were implemented. By observing them to the exclusion of rigor, by sympathizing to the exclusion of due diligence in the handling of facts, and by proceeding with sympathetic ignorance rather than an absolute devotion to that old legal chestnut of “the truth, the whole truth, and nothing but the truth,” the police and prosecutors in Ghomeshi’s case performed a great disservice for his accusers. After a long, long history of police who “don’t believe” accusers and prosecutors who treat them almost as harshly as they treat the defendant, the gentleness with which they approached, comforted, and most importantly believed Ghomeshi’s accusers was refreshing. Throughout the early stages of this case, their support for the victims was a welcome change from the sometimes adversarial attitudes authority figures show those who have been victimized. To those who have long cried for gentler treatment of survivors, this was a welcome change of climate from the usual suspicion and perceived hostility of investigators. But now, in the end, we can see why many police and prosecutors are disinclined to treat survivors with such gentleness. In doing so here, the Crown’s compassionate trust of Ghomeshi’s accusers—not just its only witnesses, but its sole source of evidence—has resulted quite ironically in an acquittal that could have been avoided, perhaps easily, with an uncompromising, severe, and perhaps unkinder devotion to the establishment of truth.
Rape culture and the law differ (thank God!) on their perception of fact. If you are raped on a Tuesday, the law thankfully does not give a shit whether or not you had wild consensual kinky sex with your rapist on Wednesday, Thursday, and Friday. Consent to later sexy times does not, in real grownup court, affect what happened earlier. Under Canadian law, Game of Thrones favourite Khal Drogo could still be tried for sexual assault, even if his Khaleesi goes on to fall in love and have tons of consensual sex, and give birth to any number of twisted dragon babies, etc. etc… what happens after the nonconsent is utterly immaterial, and the careful wording of Judge Horkins’s decision establishes that he would have been willing to recognize that. In effect, he could have been (and should have been) trusted with the truth.
It is only in the court of opinion, which is contaminated far more by rape culture and misogyny, that women who admitted they had an ongoing thing with their abuser would lose credibility. We all like to think we’re not the people who would judge these women, but we can also admit that these women would be judged for it. We can go as far as to say it’s “generally understood,” even if we don’t agree with it, that we live in a society where women’s credibility as victims of sexual assault is still undermined by what they wear, where they go, how much they drink, whom they sleep with. The cultural assumption that only conservatively virtuous women are raped is still prevalent, and it is absolutely the chief pressure on these women to shape their testimonies in the way they did. [Cis]men like me and other people of privilege cannot intuitively understand what it’s like to be under that kind of pressure. Of course they omitted “shameful” details. Of course they didn’t speak up about the facts of their ongoing relationship with Ghomeshi. Everything they’ve ever been taught about the world they live in screams that if they admit such shameful things, if they come across as “slutty,” if they haven’t behaved exactly the way that rape culture tells them they should, then no one will believe them.
But this judge—almost any judge—would have.
What people don’t understand about judges is that they are specialized administrators who perform a very specific service. Their handling of material facts is not at all like the lay public’s handling of material facts. Most have a personal politics, and some are even influenced by personal politics. But our criminal courts are not nearly as overwhelmingly partisan as, say, the Supreme Court of the United States, which will invariably vote 4-4 on most divisive court issues unless Obama manages somehow to appoint a liberal #5 in spite of the House and Senate. Here, in this climate, we have judges who do not sway with the good or bad opinions of the Twitterverse: if you date your rapist on Wednesday and Thursday, he still raped you on Tuesday. That is what the law says, and that is what any judge doing his or her job will invariably find.
But if you omit the things that happened on Wednesday, and claim under oath that you just couldn’t remember what happened that far back, then you are in a tight spot when an aggressive and competent defense shark exploits that weakness to assert that Tuesday is farther back still, and your recollection of Tuesday must be suspect if you can’t remember Wednesday. When cultural shame and pressure compels you to say things about Thursday that are then proven to be lies under oath by the Defense, in a surprising bombshell reveal that completely blindsides your allies on the side of the prosecution, it introduces doubt to your claims about Tuesday. Not a lot of doubt, but enough to meet the test for acquittal.
And why was the prosecution blindsided? Why didn’t the police and the Crown know any of this was coming? Because they were trying to do what we lay folk on the outside are always telling them they should do: Believe these victims. Take their words at face value. Don’t grill them. Don’t victimize them twice by challenging their testimony. You are supposed to be on their side. It’s not your job to aggressively cross-examine them; that’s the Defense’s job.
Well, the Defense did that job, and now Ghomeshi walks free. A prosecution effort that had pushed for the facts—while simultaneously understanding the complex cultural reasons why the survivors might be unlikely to volunteer them straightforwardly—and a Crown that had counselled its only witnesses to proceed in an absolutely candid manner that reinforced rather than undercut their own credibility, would have almost certainly secured a better outcome for those women. Or, at the very least, a worse outcome for Ghomeshi.
Given what these women have already been through, I understand, respect, even appreciate the Crown’s treatment of them. It comes from a place of gentleness and respect. It comes from a desire to treat them compassionately, and perhaps from an ashamed imperative to do better and be better than the Crown has been to sexual assault victims in the past. It comes from a desire to implement the important imperative of #IBelieveSurvivors, to give them the safe space that is denied to them in a society whose rape-culture baggage still condemns them. But a criminal trial is nobody’s safe space: it’s a battleground, an arena into which you step when you are ready to engage the person who wronged you in a battle of truth. It is an arena in which (thank God!) the illogical, misquoting, mob-mentality, rape-culture judgment of the lay world cannot and must not interfere. But the culture we live in imposed two mutually exclusive jobs on these women, both of which they could not do, and neither of which should have been their responsibility: our culture asks them to convict a man whose actions we find appalling, while simultaneously protecting themselves from indictment at the hands of the same sex-fearing, Puritan public morality that will continue to ensure Ghomeshi will never work in this town again, even with an acquittal.
The court of public opinion is harsh, unforgiving, and usually unreasonable. Ghomeshi was acquitted; it doesn’t matter, because we who see Facebook links to news coverage of Ghomeshi, and comment without even reading the articles, are absolutely certain we know better than the judge. Moreover, because we are angry at Ghomeshi, or worse, at the idea of him, no doubt the public is going to hold these women responsible for “letting him get away,” as if it was somehow their responsibility as victims to close the deal (here’s the thing: it wasn’t). Unlike grownup court, public opinion is swayed by rape culture. These women are going to get blamed for lying. They’re going to get slut-shamed. They have been victimized by Ghomeshi, and screwed over again by a well-meaning prosecution that did not prepare them for the beating they took in court because it listened too hard to the uninformed public assumption that being gently supportive, rather than rigorously clinical, was their mandate. That turned out to be a well-meaning disservice. Because of that blunder, the case has gone the way it’s gone; and now in the public eye, these women will be victimized a third time. Given the obvious progression, it’s understandable why two of Ghomeshi’s complainants were prudent and wise to keep their name out of the press—and it’s doubly courageous that Lucy DeCoutere has proudly made her name known.
In spite of the disappointments of this trial, she has every reason to be proud. She has every reason to hold her head high, and Ghomeshi’s acquittal should in no way diminish her courage as a survivor.
It is established that she was not credible on the stand, and that certainly contributed to Ghomeshi walking free. But that does not give us the right or the mandate to dismiss her as a liar: it should instead give us reason to take a long, hard look at the reasons she gave the testimony she did. What cultural pressures influenced her to be truthful about some facts, and fail to disclose others? It’s easy to sit back in our positions of privilege and say, “she should have just told the truth.” Or, “she should have ‘come clean’ to police.” But even in saying she should have “come clean,” we are implicitly deeming her to be unclean, and that’s the problem. It’s all well and good to say people should tell the whole truth—and sure, that would have solved a lot of problems, including very probably putting Jian Ghomeshi in a cell for a long period of time. But we are not going to get that, no matter how judgmentally and condescendingly we demand it, until we sort out the problems of our culture and make our society a place where the truth is a thing that is safe and easy to tell.
What kind of society have we arrived at, in which victims do not feel safe to tell the truth? This trial, in many ways, was about the importance of telling the truth. Unfortunately, there is an irreconcilable paradox here: not between Ghomeshi’s legal right to presumed innocence and his accusers’ legal and moral right to be believed, but rather between a court of law that demands absolute truth from women, and a court of sexphobic, victim-blaming public morality that demands evasiveness, concealment, and “saving face.” We do not live in a world where the testimonies that would have convicted Ghomeshi in a court of law were the ones these women were able to give. And that is the real problem here—not that the judge was wrong, not that the witnesses lied, not even that the police and prosecution could have saved the case by knowing and preparing their witnesses a lot better.
No, we are the problem. We, the court of public opinion. We, the people on the Internet who rush to judgment and air it harshly. We, who are angry and demand justice and don’t care what that means or whom it hurts. We, who demand that women stand up to their accusers, but then judge and shame them so completely for their own actions that we pressure them to lie on the stand, and then blame them for the lies into which we as a culture have shamed them. We who blame them when the testimony falls apart and he gets off. It was we who let him get away. It was we who made this world where sexual assault still happens with minimal consequence. It may be the court that acquits alleged sex offenders; but it’s the culture, after all, that breeds them. And before we criticize the courts in our undirected anger, maybe we should see to that.
Is there a simple moral to this story? Perhaps only that morality is seldom simple. The cultural change that has led us to #WeBelieveSurvivors is a good thing, but given how disastrously it was adopted by the Crown here, it’s a high-minded idea that suffers some serious growing pains when put into practice. We have come a long way, but we are not there yet. If #WeBelieveSurvivors, then why are they so frequently doubted? Like the phantom “we” that misquoters have put into the judge’s mouth, who is the we here? Society? Western Culture? Any survivor who was ever not believed will tell you our beloved hashtag is a lie. Women are still regularly slut-shamed, questioned, doubted, and then forced to live up to our low expectations. In the real world, distinct from both the courts and the Twitterverse, victims so frequently lack the unilateral support we so easily claim to give them from the safety of our laptops. We say #WeBelieveSurvivors, but as a unified culture, no, we really don’t. When we say they have unconditional support from the public, we are lying to them, and they know it, and we ought to know it too. It’s hard to judge anyone for lying when the comforting platitudes we dispense about our support reflect a social reality that does not yet exist—a social reality we, as a culture, have failed to bring about for them.
There will be, no doubt, an amount of fist-shaking outrage at the courts, an amount of buck-passing fury over Ghomeshi’s acquittal that blames the judge, the Crown, the Defense, the victims—everyone, oddly, except Jian Ghomeshi, who, it should be better remembered, is the guest of honour at this rage-party and our whole reason for throwing it in the first place. That a bunch of livid Tweeters are claiming misogyny against the victims while at the same time spouting a frothing misogyny toward Ghomeshi’s brilliant lawyer, Marie Henein, pretty much characterizes the level of debate going on right now. Hopefully with time and perspective, that will change. But the courts are (rightly) immune to mob outrage and the protests of lay folk; and if we really want things to change, it’s ultimately the culture, not the courts, that generated this travesty, and so it’s to the prejudice and assumptions of the people around us that we commenting laypeople should turn our attention.
A culture is nothing but what Charles Taylor called a “social imaginary”—a big group of people who share a common set of beliefs, and allow those beliefs to create a common practice—and we who are members of that culture, with a hundred good friends and five hundred networked acquaintances across the country, have an immense collective power to transform our common belief and common practice for the better. If testimonies could be purely shaped by the truth, and not by what the arbiters of a hateful, judgmental, unsupportive, and sexist culture deem “acceptable conduct,” our courts would work the way we want them to. That, more than anything, is where we have real power to influence the outcomes of legal contests and the administration of justice. And if we want to keep telling survivors they’re under some kind of obligation to prosecute their abusers (they’re not), then we are absolutely obligated to keep working culturally toward a world in which that course of action is easier and safer for them to take. We can point fingers all we like on this sad day—but once we’ve each deployed that one accusing finger, we should own up to our own responsibilities, and figure out what to do with the rest of our hands. Washing them of this whole business, as 90% of the outraged Twitterverse will do when the hashtags stop trending, is not a response that will give us the world we want.
This, I think, will be my first and last commentary on the Jian Ghomeshi trial and its outcome. As far as lay opinions go, it’s all I’ve got at this time; I’d need more legal expertise, and more precise knowledge of the whole makeup of the case, to say more. If it’s at all unclear from the complexities I’ve laid out here, I absolutely and unequivocally support Ghomeshi’s accusers 100%; I understand the problems of their testimonies as a natural consequence of the impossible conditions we’ve put them in as a society; and whatever technicalities and legitimate principles have contributed to the hand of justice falling as it did in this case, I only wish we could have served them a little better.