Last month saw a wave of anger appear as Jian Ghomeshi was acquitted of sexual assault and choking charges. After Ghomeshi’s lawyer, Marie Henein, aggressively cross-examined the women who brought forward the complaints, the judge overseeing the hearing determined that the complainants’ accounts were not believable and cast doubts onto their credibility.
Unsurprisingly, there was a furious reaction among women and allies who have grown tired of a legal system that puts victims of sexual assault on trial and fails to punish the vast majority of perpetrators of sexual assault.
According to Holly Johnson’s article “Limits of a Criminal Justice Response,” out of every 1000 case of sexual assault only 33 are reported, 29 recorded as a crime, 12 result in charges, 6 of which are prosecuted, and only 3 end up with a conviction.
There are a variety of reasons why these numbers are so staggeringly low. Many women who are assaulted choose to avoid the “justice” system completely. Going forward to the police often results in their own sexual pasts or conduct being put on trial. If a complaint actually results in prosecution, a victim will often face public backlash of people doubting their story and then have to confront defense lawyers willing to attack them as they testify before the courts.
Whacking the witness
In many ways, the Ghomeshi trial revealed some of the worst aspects of “acceptable” criminal defense practice. In sexual assault cases, defence council often resort to the practice of “whacking the witness,” a practice that law professor David Tanovich describes as follows:
Whacking the complainant includes humiliating or prolonged cross-examination that “seek[s] to put the complainant on trial rather than the accused”; specious applications to obtain the complainant’s records; and the invoking and exploiting of stereotypical assumptions about women and consent, including assumptions about communication, dress, revenge, marriage, prior sexual history, therapy, lack of resistance and delayed disclosure
While legislation has sought to curb the practice, the Ghomeshi hearing revealed that it is still a widely used and accepted practice. In her cross-examination of the three complainants, Henein went into extensive questioning about their recollection of events that were only tangentially related to the actual assault. Henein used the victim’s failure to be fully forthcoming about post-assault communication with Ghomeshi to suggest ulterior reasons for their account of the assaults. While Ghomeshi exercised his right to not testify, the defense was able to turn the entire case into a trial about the motives of the complainants in bringing their accusation forward.
The end result was not surprising. The criminal justice system has a high bar of “beyond a reasonable doubt” to convict and when a trial turns into examining the minutia of recollection of the accusers it is very difficult to convict.
However, when Justice Horkin’s made his decision he did not stop there but went to great lengths to further stigmatize those who bring forward sexual assault accusations, labelling the complainants as “deceptive” and “manipulative” and warning against the “dangerous false assumption that all sexual assault complainants are always truthful,” as if that is the most pressing problem facing sexual assault in the justice system.
In many ways the Ghomeshi trial showed everything that is wrong with our criminal justice system’s handling of sexual assault. It showed a prosecution that was not up to the task for the trial and who obviously failed to prepare its key witnesses. It showed defence bar culture that sees it appropriate to eviscerate witnesses through “whacking techniques.” And in the result, it showed why so many victims of sexual assault chose to not come forward, afraid of being humiliated, blamed and accused of deception and manipulation.
Whether Ghomeshi will get justice in the future or not, things need to change in our criminal justice system. There needs to be greater openness in accepting that complainants’ stories are messy, scarred by the trauma of sexual assault. Their testimonies are never going to be crystal clear accounts of what happened, and just because they aren’t does not mean they lack legitimacy or credibility.
There needs to be self-reflection among those who practice criminal defense. The principle of not letting someone’s freedom away without the state proving its case beyond a reasonable doubt is an important one, but does this require cross-examination techniques that aim to destroy the complainants? And judges need to be cognizant that decisions that vilify victims discourage reporting.
Beyond this, projects such as the one launched by Linda Redgrave, one of Ghomeshi’s victims, will try to provide a safe space for victims of sexual assault to come forward. Additionally, the Ontario government has agreed to pay for legal advice for victims, which will hopefully give complainants a better sense of what they are going up against and leave them more prepared.
Further reading: Jon Krakauer’s “Missoula: Rape and the Justice System in a College Town” is a brilliant recount of the American justice system’s own failings with sexual assault that echo all the things we saw in Ghomeshi.