To the surprise of exactly no one with criminal law experience, Jian Ghomeshi was acquitted on all sexual assault charges. The media and supporters of survivors erupted with reaction.
This case is an unmitigated disaster for sexual assault survivors, who should be our first priority. It doesn’t help anything to sugar-coat what happened here. By sugar-coat, I mean portray this case as another example of a misogynistic system that victimized women.
The judge didn’t think the complainants were lying because it turned out they'd continued to pursue Jian Ghomeshi romantically, or harboured a sexual attraction to him. He thought they were lying because they deliberately suppressed or concealed important information from the media, authorities, the Crown, and from the court itself, even when giving statements under oath.
Mr. Justice Horkins found that "The evidence of each complainant suffered not just from inconsistencies and questionable behaviour, but was tainted by outright deception."
Having watched this trial closely and read the transcripts, there is no other rational conclusion to draw. Everyone should read the court ruling here.
An example of muddying the waters is to suggest that the acquittals came because the witnesses weren’t perfect, that their memories were fuzzy about things like the make or model of a car.
That would badly misrepresent what happened here. The problem wasn’t that the witnesses were imperfect, but that they made things up. Under oath. In a criminal trial where conviction could potentially lead to up to 14 years in prison.
Example: the first witness, L.R., said that when she first connected with Ghomeshi, she felt “safe” because he drove a yellow VW bug convertible—like in a Disney movie. Only problem was that Ghomeshi didn’t get that car until later. At the time of the incident he apparently drove a GTI.
The trouble here isn’t that L.R. was fuzzy about the make and model of car Ghomeshi drove, but that her entire scenario of feeling safe because she was in a Disney car was clearly invented.
L.R. then denied telling police about an aspect of the hair-pulling incident, and continued that denial even when the court played the video of her making the statement.
Further, she adamantly claimed under oath that after Ghomeshi attacked her, she wanted and had nothing more to do with him. She insisted on this. She was even repelled and traumatized to the point of never watching or listening to his shows again, or even the new host of Q.
Yet after repeated denials of any further contact under cross-examination, it turned out that she had sent him two emails expressly referencing her enjoyment watching TV shows where he appeared, and attached a photo of herself in a bikini. When trapped into admitting she’d sent emails she’d denied just moments earlier, L.R. then said it was actually a plan to lure him into contacting her so she could confront him.
Really?
On Thursday, in an interview with Chatelaine, L.R. blames police for inadequately interviewing and preparing her. The Toronto Police Service denies her claims. Standard procedure for sexual assault reports, which appears to have been followed based on trial evidence, is that a sexual assault complainant's full interview is recorded and conducted under oath, and she is informed of the procedure.
The other witnesses were no better. This case was peppered with clangers and thuds. The judge had no choice in the end. It was open-and-shut about witnesses who deliberately misled the court, then played possum about it.
Folks, I can’t begin to describe how badly this case went off the rails. For all the hell that survivors do endure, they do not, in my experience, repeatedly shoot themselves in the foot like this. It is ok for a witness to be imperfect, to have a fuzzy memory, to get a car make and model wrong.
It’s entirely possible that for all the drama, the claims about Ghomeshi are true. By his own admission he has violent sexual tastes. His own judgment seems sufficiently impaired that a video tape he presented to CBC management as exoneration shocked them into dismissing him immediately.
But the testimony against him at trial was an unmitigated disaster.
It was so bad that of the very senior BC prosecutors and criminal lawyers I consulted over this trial, all with decades of experience, every single one thought the Crown had an ethical obligation to support an acquittal or flat-out stay the charges. These lawyers, most of them women and all of them feminist, are profoundly troubled by the inadequacy of the Ghomeshi case.
It does no good to circle the wagons around the Ghomeshi complainants. These were not naive and inexperienced young people, but mature adults who need to step up and own this.
In their own hearts and minds there is probably some explanation, but whatever that might be, the survivor support movement is undermined today. Blindly supporting discredited witnesses doesn’t help.
Survivors have been hurt and the movement supporting them is badly damaged by the Ghomeshi trial.
Things will probably get worse from here.
Survivors will be incredibly intimidated by today’s ruling and the inflamed rhetoric surrounding it. It is always hell to come forward and report. Compounding the problem, media could go into the deep-freeze, and refuse to report on claims by complainants unwilling to brave a toxic criminal trial.
Yet none of the Ghomeshi issues, which are apparently sound enough to have resulted in his dismissal from the CBC, would have come to light without the investigative reporting of Toronto Star reporter Kevin Donovan and Jesse Brown.
Would the editor of the Star make the call to publish a similar story tomorrow? These questions matter.
The Boston Globe’s landmark exposé of the Catholic church’s sexual abuse and cover-up depicted in the Oscar-winning film Spotlight demonstrates the vital importance of gutsy reporting, especially for vulnerable survivors who have no other voice.
Courage in journalism is always rare and it always counts.
It will be tougher today.
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