Weekend Reads Ghomeshi trial: Everything wrong with sexual assault law

19:52  07 december  2016
19:52  07 december  2016 Source:   Chatelaine

Guilty verdict still possible in future Jian Ghomeshi cases, lawyer says

  Guilty verdict still possible in future Jian Ghomeshi cases, lawyer says Jian Ghomeshi was found not guilty of sexually assaulting three women last week, but the disgraced radio host’s legal woes are far from over.

Brenda Cossman, a law professor at the University of Toronto, says the trial will discourage victims from coming forward.

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Jian Ghomeshi was acquitted on Thursday on all four charges of sexual assault and one charge of choking. Having followed the trial, the acquittal isn’t surprising. One by one, each of the three complainants had their credibility — as it is defined in these kinds of cases — decimated on the stand. Defence counsel showed on-going contact with the accused, inconsistencies with police statements and collaboration between the witnesses. Each day, the trial seemed like more of a train wreck, as the Crown’s case collapsed, inexplicably broadsided by one revelation after another by defence counsel.

Statement from Kathryn Borel on Jian Ghomeshi

  Statement from Kathryn Borel on Jian Ghomeshi Statement from Kathryn Borel on Jian GhomeshiHi everyone. Thank you for coming out and listening. My name is Kathryn Borel. In December of 2014, I pressed sexual assault charges against Jian Ghomeshi. As you know, Mr. Ghomeshi initially denied all the charges that were brought against him. But today, as you just heard, Jian Ghomeshi admitted wrongdoing and apologized to me.

Carissima Mathen is associate professor of law at the University of Ottawa and a former constitutional litigator. The decision, by Ontario Justice William Horkins, to acquit former CBC host Jian Ghomeshi of sexual assault has spawned equal parts outrage and approval. It would be a mistake to view the trial as emblematic of everything that remains wrong with sexual assault and the criminal justice system.

Ghomeshi trial : Everything wrong with sexual assault law . The trial was literally a performance in everything that is wrong with sexual assault law , or more specifically, the way our sexual assault law ’s are applied. The Criminal Code provisions on sexual assault are actually pretty good — there is an expansive definition of consent or more specifically its absence, and the Supreme Court of Canada has insisted that consent be positive and on-going.

But that does not make the acquittal any less disturbing. The trial was literally a performance in everything that is wrong with sexual assault law, or more specifically, the way our sexual assault law’s are applied. The Criminal Code provisions on sexual assault are actually pretty good — there is an expansive definition of consent or more specifically its absence, and the Supreme Court of Canada has insisted that consent be positive and on-going. But the social norms through which these laws are applied still leave a lot to desired.

Sexual assault allegations revolve almost entirely around the credibility of the complainant. As the judge said in the Ghomeshi case, “There is no tangible evidence. There is no DNA. There is no ‘smoking gun.’ There is only the sworn evidence of each complainant.” That’s the thing about sexual assault cases — there is almost never a smoking gun. There is only the testimony of the complainant. And sure, credibility is important in all criminal cases. But there is something unique about how the credibility of complainants works — or doesn’t work — in sexual assault trials.

Association of Alberta Sexual Assault Services reaches out to survivors in wake of Ghomeshi verdict

  Association of Alberta Sexual Assault Services reaches out to survivors in wake of Ghomeshi verdict The acquittal of former CBC broadcaster Jian Ghomeshi has sparked a powerful conversation about sexual assault, and Alberta advocates believe it will act as a necessary catalyst for change. Ghomeshi, 48, was acquitted last week on four counts of sexual assault and one count of overcoming resistance by choking involving three women. The heavily publicized trial […]The acquittal of former CBC broadcaster Jian Ghomeshi has sparked a powerful conversation about sexual assault, and Alberta advocates believe it will act as a necessary catalyst for change.

Ghomeshi trial : Everything wrong with sexual assault law . Brenda Cossman, a law professor at the University of Toronto, says the trial will discourage victims from coming forward. In their words: Protestors on the Ghomeshi trial . On the morning Jian Ghomeshi ’s verdict was handed down, a protest in support of sexual assault survivors was organized by a local rape crisis centre outside the Toronto courthouse. Here’s why they showed up.

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. The Canadian law is completely. lost as far as fair. if you can afford. a very expensive lawyer it appears you can get away with murder. I spent most of my86 years in England I thought Canada had adopted the British system, how wrong you have got it.

The underlying suspicion has long been that women lie about sexual assault. They consented to the sex, but they subsequently regret it. They were embarrassed/dumped/hurt/deceived — you can pretty much fill in the blank – and then turn around the falsely accuse men of sexual assault.

The suspicion is only heightened if the complainants don’t behave in ways that society considers befitting of a sexual assault victim. There are lots of complicated reasons that victims of sexual assault have on-going relationships with their abuser. But, if they do, they are at risk of no longer looking like victims. As the judge concluded in the Ghomeshi case: “Each complainant in this case engaged in conduct regarding Mr. Ghomeshi, after the fact, which seems out of harmony with the assaultive behaviour ascribed to him.”

And if they don’t remember the details perfectly, if there are inconsistencies in their statements, or if they fail to disclose all of the ugly details because they are trying to present as good victims, well, now their credibility is even further destroyed.

'Not proven:' Perhaps Canadian courts needed third option for the Ghomeshi verdict

  'Not proven:' Perhaps Canadian courts needed third option for the Ghomeshi verdict The courts need another option.

Related: Exclusive: Lucy DeCoutere on the Ghomeshi disaster The bleak lessons of the Ghomeshi trial In their own words: Protestors on the Ghomeshi verdict Ghomeshi trial : Everything that’s wrong with sexual assault law Not guilty: Jian Ghomeshi acquitted of all charges. shares.

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Given how sexual assault trials go, given the centrality of the credibility of the complainants, given the prevailing norms about appropriate gendered behaviour, there is nothing at all surprising that the trial resulted in an acquittal. And that – the fact it is not surprising – is the most upsetting thing of all.

What happens to other victims of sexual assault — past, present and future — out there? Will they be emboldened to come forward? I really can’t see why they would. I can’t see why a woman with less than perfect facts would report sexual assault, and put herself on trial. Frankly, I cannot even imagine what perfect facts look like. Stranger rape in a dark alley, I guess. But, complicated, messy, intimate-partner sexual assault?  Not so much.

Brenda Cossman is a Professor of Law and Director of the Bonham Centre for Sexual Diversity Studies at the University of Toronto.

A defence lawyer’s take on Jian Ghomeshi’s acquittal and the #believewomen movement .
National Post Radio's Matt Gurney spoke to defence lawyer Kathryn Wells about Jian Ghomeshi's trial, the ruling and the anger it has evoked .Q: When we were talking last week, you and I were both on the same page that we did not expect to see a conviction here. Mr. Ghomeshi was acquitted on all charges. And when the judge was reading his ruling, it was pretty clear really quickly which way he was leaning.A: Absolutely. What I would say to the general public is, read the entirety of the decision. This is a judge who’s been around a long time.

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