The Ghomeshi Precedent

This article originally appeared in our APRIL edition. Since then, Ghomeshi signed a peace bond in relation to the other charges concerning other women, and no further trials will be taking place.

by Roshini Nair

A disaster. If you are an advocate for sexual assault survivors, that’s been the predominant way of describing the Jian Ghomeshi trial. Ghomeshi, a former CBC radio host, was on trial for the sexual assault of three different women and on March 24, 2016. He was acquitted of all charges.

For context, the three women were part of a group of women who had come forward levelling allegations of sexual misconduct against Ghomeshi after he was fired from the CBC in October. The firing crystallized the rumors which had swirled for years in the Toronto media scene about Ghomeshi’s “shady” character, ones that made journalism programs hesitate to send female students to intern on his show. By the end of November 2015, the police had enough evidence to formally charge Ghomeshi.

Women’s groups and feminists applauded the bravery of the women coming forward, some after years of silence. They chided the fact that it took so long for anyone to do anything, but geared up for the trial. Ghomeshi—along with Bill Cosby, Woody Allen, or R. Kelly—fit that familiar narrative: a charismatic, powerful man who preyed on vulnerable women and got away with it. His trial was the opportunity to change that narrative, to make sure Ghomeshi didn’t get away with it.

But it turned out drastically different. With talented defense attorney Marie Henein on his side, Ghomeshi emerged free. So what went wrong?

“in a criminal case, a judge can only convict if he is absolutely sure of the accused’s guilt.”

In the judgment, Justice Horkins wrote a scathing assessment of the credibility and reliability of the women who accused Ghomeshi of sexual assault, referring to their post-assault behaviour as “odd”. He explained that in a criminal case, a judge can only convict if he is absolutely sure of the accused’s guilt. The womens’ stories were flawed, details appearing and disappearing and withholding certain facts that later came to light.

Advocates said that the women were traumatized, and didn’t remember minute details of an event that happened over a decade ago. The defense eviscerated their testimony with details, like proving the type of car one witness remembered Ghomeshi driving was only bought a year later. But it was other bigger details – like contacting Ghomeshi after the alleged abuse, sending emails and flowers, and then not disclosing any of this to the Crown – which sent the judge over the proverbial edge. About one witness he said: “She ultimately acknowledged that she left out things because she felt it didn’t fit “the pattern”…She was prepared to tell half the truth for as long as she thought she might get away with it.”

“people usually don’t stop what they’re doing and immediately call up their lawyer and ask them how to proceed.”

That “pattern” comment is interesting, because despite the relatively progressive nature of Canadian sexual assault laws, the application of these laws is still imperfect. The women in the Ghomeshi trial changed their stories to conform to a certain pattern of understandable, “acceptable” behaviour. They were responding to the idea that there is a way society expects a victim of sexual assault to behave: like cutting off all contact, immediately acknowledging the assault and calling out the assailant, maybe reporting the incident to the police right away. But real life is more complicated than that, especially intimate partnerships where these kinds of incidents of sexual violence take place. In these cases, people usually don’t stop what they’re doing and immediately call up their lawyer and ask them how to proceed. It’s a grey and confusing, sometimes unbelievable situation to be in and the dynamics of a relationship are much more subjective and mixed.

And while the judge’s reaction to this was a curt “tell the truth, the whole truth and nothing but the truth”, it is hard to know if it really is that simple. Would the court – a supposed bastion of objectivity and fairness – be able to fully understand an abusive relationship, as messy and complex and subjective as it is? It remains unclear, and unfortunately after this trial, sexual assault survivors might find it even more difficult to trust their stories with the legal system.