Trial of former CBC Radio host exemplifies systemic issues in our justice system

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Warning: This opinion piece contains some profanity and sexual content.

Kathryn Borel charged down the steps of the Old City Hall court in downtown Toronto on May 11 to greet the mass of reporters and their cameras. Her hands held the statement that she read, voice strong and deliberate, into the microphones that waited for her. In roughly four minutes, she delivered a scorching indictment of Jian Ghomeshi and the institutions that protected him.

“Every day over the course of a three-year period, Mr. Ghomeshi made it clear to me that he could do what he wanted to me and my body,” Borel said. “This includes the one charge he just apologized for, when he came up behind me while I was standing near my desk, put his hands on my hips and rammed his pelvis against my backside over and over, simulating sexual intercourse.”

In October 2014, Canadaland’s Jesse Brown collaborated with the Toronto Star to break the story that CBC Radio host Ghomeshi had allegedly attacked and harassed numerous women. Borel was among them, at the time an anonymous source. In the days that followed, a chorus of accusers came forward with accounts of non-consensual choking, slapping, punching and verbal abuse.

Ghomeshi was to face his second sexual assault trial on June 6. Unlike his first, there was only one charge to contend with and only one complainant — Borel, a former CBC producer. The charge was withdrawn on May 11. In its place, Ghomeshi signed a peace bond and apologized to Borel. In the statement Ghomeshi read to her, he recognized that he had engaged in “conduct in the workplace that was sexually inappropriate.”

He will have no criminal record.

“In a perfect world, people who commit sexual assault would be convicted for their crimes,” Borel told the media May 11. “When it was presented to me that the defence would be offering us an apology, I was prepared to forego the trial. It seemed like the clearest path to the truth. A trial would have maintained his lie.”

For many of us who followed Ghomeshi’s trial months before, it is disturbingly reasonable that Borel would conclude the apology was her best option. Because when women come forward with allegations of sexual assault, the legal system delivers woefully low conviction rates, and often savages the credibility and reputation of those accusers brave enough to speak.

Ghomeshi’s trial demonstrated this for us, again and again.

The proceedings commenced on Feb. 1. Ghomeshi faced four counts of sexual assault and one count of overcoming resistance by choking against three complainants. He was acquitted of all charges on March 24.In better days, Jian Ghomeshi was a well known radio host for the CBC. Photo courtesy of Brenda Lee, Creative Commons

Acquittal Not Surprising

The ruling did not come as a surprise; there had been inconsistencies in the witness’s statements, post-incident contact that undermined testimony, and seemingly damning correspondence between the claimants and the accused.

Before the trial began, the scandal that sparked countrywide discussion about rape culture represented a power shift from the perpetrators of sexual violence to its survivors. In the end it would fail to challenge the status quo, instead emphasizing the judicial weaknesses that perpetuate victim blaming, gender stereotyping and the low reporting rates of sexual assault. And those once hoping the trial would flip the script were wounded by it instead.

It reminded us that it remains easier to believe multiple women are vindictive, conspiratorial liars, rather than thinking one man was capable of abusing them.

It reminded us that the coping strategies of survivors are often misunderstood and misconstrued, subjected to our judgment and derision.

It reminded us that the silence of the accused renders them nearly invulnerable to conviction.

It reminded us of the statistics that suggest survivors of sexual assault are overwhelmingly likely to keep to the shadows, afraid of what awaits them on the stand.

And now, it reminds us why a slippery, carefully worded apology is a favourable alternative to risking a chance at justice through the system.

Memory Lapse Costs Accusers

During the trial, Ghomeshi’s lawyer Marie Henein relentlessly challenged the three witnesses’ ability to recall minute details blurred by trauma, or by time — the alleged assaults occurred in 2002 and 2003. The strategy of the defence was designed to shred credibility and create reasonable doubt.

The first witness’s believability was dented after she couldn’t remember if she was wearing hair extensions and the make of Ghomeshi’s car. A further blow was the email the witness said she remembered writing, but not sending, with an enclosed photo of the complainant in a bikini. The correspondence occurred after Ghomeshi allegedly assaulted her twice — jerking her hair violently in his vehicle and “dragging” her to the floor in his home before “punching her repeatedly” in the head.

The second witness, actress and Canadian Air Force Captain Lucy DeCoutere, testified that Ghomeshi “choked and slapped her” after a date in 2003. On the stand, she was reminded by the defence of an email and a letter she sent to Ghomeshi. The email read: “You kicked my ass last night, and that makes me want to f**k your brains out.” The last line of the scrawled letter said: “I love your hands.” DeCoutere said she didn’t remember sending the correspondence.

The third witness alleged Ghomeshi bit and choked her on a park bench. She was accused of “playing chicken,” revealing a later sexual encounter with him only when she realized she could be questioned about it. She said she simply had not understood that it was significant until she saw a news story that reported the other witnesses were grilled about their subsequent behaviour.

“In hindsight, I wish that I had told them everything,” she told CBC’s The Fifth Estate. “[But] I still don’t think it’s relevant … just because I gave him a hand-job doesn’t mean he didn’t do these things to me, and that’s the bottom line.”

DeCoutere echoed these words. She told The Guardian after the trial that she was not aware the focus would be shifted away from her assault and onto her own behaviour afterwards.

“If anybody — the police, the Crown — had told me about what post-incident contact is or why it matters, that would have gone a long way,” DeCoutere said in the interview. “It might not have helped me remember everything, but … now I know that when it comes to a victim’s testimony, what happened after the assault is just as important as what happened before — at least as far as the court is concerned.”

Kathryn Borel courageously shared her response after Ghomeshi was acquitted of charges at Old City Hall, Toronto. Photo Courtesy of dlagorio, Creative CommonsIn Justice William B. Horkins’ ruling, he assessed the “inconsistencies” of witness statements and their “questionable behaviour” after the alleged assaults to be “outright deception.”

For Justice Horkins to weigh these inconsistencies is entirely valid; to imply they exist because the women are deceitful, and not conceivably mistaken or underprepared, is a disturbing leap. His statements disregard the complexities of victimization, playing instead to dangerous and gendered stereotypes that suggest women are eager to ruin men through falsified claims of sexual violence. It showed that rape culture exists and lives even in the house that justice built.

Creating Normalcy from Trauma

The backlash the women faced, and the loaded wording of the verdict, demonstrated the great absence of dialogue surrounding the behaviour of sexual assault survivors. Specialists told the National Post that attempting to find normalcy in violence — sometimes by pursuing and remaining familiar with their assailants—is actually characteristic of those left trying to make sense of what happened.

“It happens all the time,” Claudette Boulanger said during an interview with the National Post.

A Toronto Rape Crisis Centre staffer who has been “counselling… survivors of sexual assault for 20 years,” Boulanger said the victims go through a tumultuous process.

“We numb it out, or we pretend it didn’t happen, or we say nothing about it because we fear we won’t be believed… A lot of times we want it to go away, we want to normalize it.”

“Everything Henein asked me came back to one big question: why did I keep in touch with Jian?” DeCoutere said. “The answer is that it was my way of processing what happened to me, of neutralizing a volatile situation he created.”

Ariana Barer, who works with the Women Against Violence Against Women Rape Crisis Centre, also spoke to the National Post. She said that analyzing the behaviour of the witnesses — and using it to distinguish credible victims from illegitimate ones — directs our attention away from the crime itself.

“We shouldn’t keep focusing on individual women and what they did or didn’t do,” Barer said. “They are not responsible for the sexualized violence committed against them … attention should be on the perpetrator and why they felt entitled to enact that violence.”

Yet focusing on the perpetrator is made impossible by a tenet of our justice system: the right of the accused not to take the stand. As a result, sexual assault trials are frequently evidenced by only the word of a witness against the silence of the defendant. The emphasis inevitably falls on the complainant’s conduct and memories — easily dismantled by our notions of a perfect victim, or their inability to remember an email sent, or the make of a car.

“The issue is, in trials like this, one of fairness,” the CBC’s Peter Mansbridge said to Henein in an interview after the trial. “The position of the accused is not challenged at all, if they choose not to go on the stand.”

Henein defended the system, citing the presumption of innocence and the burden of proof.

“What people have to understand … is how easy it is to have the weight of the state, and the police force, and the extraordinary resources that they have when a finger of blame is pointed at you,” Henein replied. “And so … we say, you have to prove the case. And that is true of any case; there is nothing special about the type of crime.”Years before Peter Mansbridge would interview Ghomeshi’s lawyer, Marie Henein, Ghomeshi would interview Mansbridge (2010). Photo courtesy of Brenda Lee, Creative Commons

Statistics of Convictions Alarming

Henein’s reasoning is thoughtful and nearly convincing, except that there is something special about this type of crime: according to a 2012 study conducted by University of Ottawa scholar Holly Johnson, reported sexual assaults see a conviction rate of less than 10 per cent in Canada. When we consider studies cited by Johnson that estimate the number sexual assaults in Canada each year — reported and unreported — climbs above an estimated 460,000, that 10 per cent dwindles to an appalling 0.3 per cent.

The presumption of innocence is integral to the justice system and should not be dismissed, but the numbers suggest we are failing victims of sexual assault.

Rationality dictates that there are flaws in a system that permits perpetrators their violence with near impunity, and we should search for places to reform. If the accused were required to testify in sexual assault trials, it would allow an opportunity to weigh both sides, without favouring one outcome over another. As Justice Horkins admitted in his ruling, the testimony of a witness alone makes a conviction problematic.

Evidence is Key

“One of the challenges for the prosecution in this case is that the allegations against Mr. Ghomeshi are supported by nothing in addition to the complainant’s word,” he said. “There is no other evidence to look to determine the truth. There is no tangible evidence. There is no DNA. There is no ‘smoking gun.’”

That’s a chilling statement for past, present and future survivors of sexual assault, because so often their word is all our justice system will permit them. It becomes difficult to imagine that victims won’t look to this trial and feel discouraged, remaining silent, absorbed into the estimated 90 per cent of unreported sex crimes in Canada.

“It’s not fair that someone gets assaulted, and has to go to court and get assaulted again,” the first witness told Chatelaine of her experience on the stand.

“To just go on the stand, and be attacked,” the third witness told the CBC. “It’s a lose-lose for me.”

“In the aftermath of this verdict, I don’t feel anything at all,” DeCoutere told The Guardian. “All I know is that the trial has been immeasurably more traumatic than what Jian did to me.”

The takeaway of the Ghomeshi trial is that to report sexual assault is to risk re-victimization in court, and the statistics suggest that our judicial process is inadvertently protecting predators while baring its teeth at their victims. For survivors of sexual assault hoping to pursue a conviction, the case sent a clear message: dare to speak, and you will be the one on trial.

“There are 20 other women who have come forward to the media and made serious allegations about [Ghomeshi’s] violent behaviour,” Borel said outside the Toronto courthouse. “He hasn’t taken the stand on any charge. All he has said about his other accusers is that they’re all lying and that he’s not guilty. And remember: that’s what he said about me.”

Thumbnail graphic courtesy of Isabelle Jackson.

hkost@cjournal.ca

The editor responsible for this article is Deanna Tucker, dtucker@cjournal.ca