The bleak lessons of the Ghomeshi trial

The case was an invaluable education in sexual assault reporting and how near-impossible it is to be a credible witness.

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When Justice William B. Horkins, the judge in the Jian Ghomeshi sexual assault trial, delivered his lengthy verdict in Toronto on Thursday, one message came across loud and clear: For sexual assault survivors in Canada, the justice system is broken. Horkins’ conclusions — that the three witnesses’ stories were false and incomplete, that their post-incident behaviour seemed “odd” and that their claims to have struggled to navigate the system were disingenuous — highlighted the very problems that discourage survivors from reporting and make the pursuit of justice feel like a lose-lose proposition.  

“The allegations against Mr. Ghomeshi are supported by nothing in addition to the complainant’s words,” the judge explained in his ruling. The sworn testimony of the complainants, he wrote, is the only evidence “to be measured against a very exacting standard of proof.” In this case, to be sure, the evidence did not measure up: There were shifting accounts, omissions, memory lapses, confusion and concealed animosity directed at the accused. And yet, we know this doesn’t mean that violence did not occur. It only proves that the witnesses did a terrible job of crafting and maintaining an airtight legal offense. They failed to document meticulously, to master the ins and outs of the reporting process and, above all, to keep their emotions and behaviour in check at every step.

For many of us, this high-profile trial was the first time we’d witnessed sexual assault proceedings unfold with such immediacy and intimate detail — due, in large part, to the reporters who live-tweeted the testimony from the courtroom (including Chatelaine senior writer Sarah Boesveld). From the outset, legal experts predicted that the credibility and moral character of the complainants would be scrutinized — because they always are. They expected that Lucy DeCoutere would be accused of wanting attention, that the complainants’ post-incident behaviour would be deemed suspicious and that their ability to recall, with precision, seemingly insignificant details from years ago would determine whether the case stood or fell. But to see all of those boxes ticked off, one by one — these predictions come to life in the courtroom as though they’d been scripted — erased any shred of mystery around how exactly the system fails sexual assault complainants. It also handily explained why an outrageous proportion of incidents go unreported and, ultimately, unpunished in Canada (an estimated 97 percent).


Exclusive: Lucy DeCoutere on the Ghomeshi disaster


More than anything, the Ghomeshi trial has been a massive public education, and the lessons are bleak. There seems to be only one viable course of action for a sexual assault witness to have a hope of meeting the incredible burden of evidence placed on her in court. To map it out, that course of action looks something like this:

• Immediately after an assault, suppress your emotions and record everything, down to the most minute detail of what happened. Be mindful of the technical differences between words like “shove” and “pull.” Preserve all physical evidence, whether you intend to use it or not. You can figure that part out later.

• Think rationally. Before you breathe a word to anybody — police, family, friends and especially the media — seek legal counsel to ensure that you understand exactly when you can speak, to whom and what language you should use. You may not choose to report the assault today, or tomorrow or even 10 years from now. But one day, you might. And you can’t afford any incongruities.

• You may feel confused. To be safe, avoid contacting your abuser under any circumstances, regardless of how desperately you want to appease, understand, rewrite history or “normalize” the situation. Do not appear to want to associate with a monster.

• Above all, stick to the facts. Should you choose to report, beyond your official, professionally vetted police statement, say nothing. Do nothing. 

• Should you find yourself in court, steel yourself. It’s not going to be pretty.

The one good thing to come of the Ghomeshi trial is that it’s prompted countless public and private conversations about sexual violence. In this case, the judge found there wasn’t enough evidence for a conviction, but we learned some things. We learned just how gruelling the reporting process is for sexual assault witnesses and how extraordinarily hard convictions are to come by. We learned how desperately we need sexual assault survivors to continue to come forward and tell their stories despite the fact that we offer them very little support or protection. We learned that this is terribly, unforgivably unfair, and we need to fix it.


Related:
Exclusive: Lucy DeCoutere on the Ghomeshi disaster
Witness 1: What I wish I’d known before testifying in the Ghomeshi trial
Ghomeshi trial: Everything wrong with sexual assault law
In their words: Protestors on the Ghomeshi trial
Not guilty: Jian Ghomeshi acquitted of all charges