QotD: “Canada urged to rethink approach to sexual assault after Ghomeshi acquittal”

The acquittal of former radio star Jian Ghomeshi has prompted fresh calls for a sweeping overhaul of the way Canada deals with allegations of sexual violence.

In a ruling on Thursday, Judge William Horkins found Ghomeshi, 48, not guilty of four counts of sexual assault and one count of choking, arguing that prosecutors had failed to establish Ghomeshi’s guilt beyond a reasonable doubt.

But the verdict prompted widespread outrage among women’s rights activists who said the case underlined the country’s chronic underreporting of sexual assaults and low conviction rates.

Much of the anger has focused on the defence team’s strategy of undermining the testimony of the complainants by questioning their recall of traumatic events, and some campaigners have called for the creation of special sexual violence courts, with judges and prosecutors who have been trained in areas such as intimate abuse and trauma.

Speaking to the Guardian, the first complainant in the high-profile case called for sweeping reforms. “The whole system needs to be changed,” she said. “It can’t just be one person on the stand with a seasoned lawyer throwing darts at them.”

The woman – whose identity continues to be protected by a publication ban – said Thursday’s decision left her livid.

Some 15 months ago, she walked into a police station with allegations that Ghomeshi had – without warning – pulled her hair and punched her in the head. The act hurtled the mother of two into what she calls the toughest experience of her life.

The list of what she wished she had known from the outset is long, ranging from how her police statement would be used in court to the toll testifying would take on her nerves. “People tell you to just tell your story and that if you don’t remember, just say ‘I don’t know’. It’s not anything like that.”

As the trial came to an end, the woman launched a website that she hopes will become a resource to counter the gaping lack of information available for survivors navigating the court system. Just one day after its launch, the website had already received some 5,000 visits.

The site is her antidote to the many who worry that the high-profile trial – and Thursday’s verdict – will discourage others from coming forward with their own stories.

“I still think – as horrible as the system is – more people have to come forward. If everyone stays quiet, it is never going to change,” she said.

In Thursday’s decision, Judge Horkins stressed the need to prove the allegations beyond a reasonable doubt.

“Even if you believe the accused is probably guilty or likely guilty, that is not sufficient,” he said. “In those circumstances you must give the benefit of the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt.”

But figures from Statistics Canada suggest that for every 1,000 sexual assaults that happen in the country, only 33 are ever reported and just three result in convictions, said David Butt, a criminal lawyer who often works with sexual assault complainants. “I call that a statistically validated 99.7% failure rate.”

In any other sector, a similar figure would elicit calls for an overhaul. “And yet we persistently cling to the myth that for sexual assault cases we’re somehow delivering justice,” said Butt.

In the coming weeks, Butt will argue the necessity for reform to the Canadian Bar Association, highlighting alternative options for sexual assault complainants such as civil lawsuits, where the burden of proof is lower than the criminal justice system, or restorative justice.

Hours after Thursday’s verdict, another woman described an encounter with the former radio star which she said left her feeling “dirty & sad”.

Actress Zoe Kazan said she met Ghomeshi in 2013 when she was interviewed by the Canadian Broadcasting Corporation radio host. “Before we went on air, he told me I was ‘just his type’. Funny, sexy, just the right amount of damage,” she wrote on Twitter on Thursday.

[…]

In 2014 more than 20 women and one man came forward with allegations they had been slapped, punched, bitten, choked or smothered by the man who was once one of the CBC’s brightest stars.

Ghomeshi denied the accusations, and pleaded not guilty to four charges of sexual assault and another of choking to overcome resistance.

He now faces a second trial in June, stemming from allegations that he touched the buttocks of a former CBC employee and told her: “I want to hate-fuck you.”

His lawyers responded to Thursday’s verdict with a statement that said Ghomeshi had been rightly acquitted.

“Notwithstanding the unprecedented scrutiny and pressure, the case was determined on the evidence heard in a court of law. In our system of justice, that is what must happen in every case regardless of who is accused or what crime is alleged. That is precisely what occurred in this case,” read the statement from Henein Hutchison LLP.

It added: “This has been a very long, exhausting and devastating 16 months for Mr Ghomeshi. He will take time with his family and close friends to reflect and move forward from what can only be described as a profoundly difficult period in his life.”

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3 responses

  1. The case against Jian Ghomeshi didn’t really begin to crack until the emails turned up.

    On the opening day of the trial in Toronto, the former radio presenter’s lawyer, Marie Henein, peppered the first of three complainants with questions. How long did the police interview last? Did she realize that she was wrong about the color of the defendant’s car?

    The questions showed some holes in the witness’s memory as she recalled events from more than a decade ago. But it was not the ruthless cross-examinations for which the steely defense lawyer has become notorious.

    That came on day two. The witness had testified that Ghomeshi yanked her hair and punched her three times in the side of the head – a traumatizing event that caused her new pain whenever she heard Ghomeshi’s voice.

    With a cool demeanor, Henein displayed blown-up copies of emails the woman sent Ghomeshi after the alleged assault. “Good to see you again!” read the first email. “Your show is still great.” Another email contained a photo of the woman in a bathing suit.

    “Your truth keeps changing,” Henein said.

    On Thursday, to the roars of protesters outside the Old City Hall courthouse, Judge William Horkins agreed. In a scorching 25-page verdict, Horkins acquitted the former CBC host of four counts of sexual assault and one count related to an accusation of choking.

    It was not an outcome many could have predicted even a few months ago. And it might not have happened without Henein, whom one former client described as “my shark”.

    The accusations against Ghomeshi first emerged in fall 2014, shocking the country as eventually more than 20 women and one man came forward to say he had slapped, punched, bit, choked, groped or smothered them. But in the courtroom at Old City Hall, any certainties about the case quickly dissipated.

    Henein’s trial strategy relied on the witnesses’ failure to divulge all the details of their relationships with Ghomeshi to police from the start, and on scrutinizing small inconsistencies in their stories.

    It was not unusual for Henein to dwell for a half an hour on a single detail that had shifted as women spoke to police, the media and at trial: did Ghomeshi choke you with one hand or two? Did he yank you by your hair extensions, or were you not wearing hair extensions at all?

    Whether those lapses occurred on purpose or due to the normal failures of memory, they permitted Henein to paint the women as unreliable on the specifics. The verdict revealed that those inconsistencies combined to poison the women’s central accusations.

    Delivering his judgment on Thursday, Horkins said the witnesses’ accusations were “tainted by outright deception”.

    Henein never put Ghomeshi on the stand, and she never, through her questioning, presented an alternative explanation for the events described by his accusers. (Before the trial, Ghomeshi claimed publicly that the encounters, while rough, were consensual.)

    To many, the effect was that the trial of Jian Ghomeshi became a test of his accusers.

    But her strategy was a risky one, said Luc LeClair, a Toronto lawyer who has defended several high-profile criminal suspects. Without Ghomeshi’s explanation to offer, Henein’s hands were tied when it came to confronting the women’s core testimony.

    “She must have decided that he simply couldn’t testify,” LeClair said. “And with that decision, she had no other version of events to put forward. How are you going to confront the witness about their central narrative?”

    “She doesn’t directly say whether it happened or it didn’t happen, because she can’t,” he continued. “So what she did, in a very masterful and forceful way, was attack everything around it, and hope there’s not enough left the judge sees as credible.”

    Henein’s defense was also aided by flubs on the part the prosecution. The Crown’s witnesses were firm in their testimony and appeared ready for Henein’s notoriously aggressive mode of cross-examination. But when Henein began to lay out emails, letters, and photo evidence that she said contradicted their testimony, the women and Crown prosecutors seemed equally thrown.

    She startled the first witness with an email the woman sent to Ghomeshi containing a photo of her in a bikini. The email, sent months after Ghomeshi allegedly punched her and yanked her hair, appeared to contradict the woman’s testimony that after Ghomeshi assaulted her, she was too traumatized to even hear his voice.

    The second witness to testify was Lucy DeCouture, an actor who claimed Ghomeshi choked and slapped her. Henein confronted DeCoutere – who waived the publication ban on naming witnesses – with a photo showing the two of them “cuddling” in a park the day after the alleged assault. In a moment of high drama, Henein asked DeCoutere to read a handwritten letter she wrote to Ghomeshi following their encounter. The letter read: “I love your hands.”

    Henein treated each new submission like a bombshell, sometimes ending a day of testimony on a cliffhanger. “Do you want to take a moment and tell the truth of the real conversation that was going on?” she asked DeCoutere on her first day of testimony. “Not the one you’ve been reporting to the media, not the one in the press releases.”

    DeCoutere gave a puzzled response, and Henein asked for court to be adjourned for the day.

    Pressed to explain their lapses, the witnesses replied that they had forgotten the letters, the flowers, the emails. As the trial wore on, two of the women gave prosecutors new information. DeCoutere told the Crown that she sent Ghomeshi flowers after the alleged attack. A third witness, who claimed that Ghomeshi squeezed her throat, told prosecutors that after the attack, she had a consensual sexual encounter with Ghomeshi at her house. During her testimony, she acknowledged that Henein’s discovery of the other witnesses’ emails had compelled her to check her own account.

    Finally, Henein used communications between DeCoutere and a friend to suggest a vendetta against Ghomeshi. On Thursday, Horkins said the 5,000 messages between the two showed an “extreme dedication to bringing down Ghomeshi”.

    The admissions raised questions about the depth of the prosecutors’ preparation. The crown is prohibited from coaching the witness to the point of ironclad testimony, but it still has some ability to prepare them for tough questions about the evidence.

    Observers wondered why Callaghan’s team or the women’s attorneys did not comb over the witnesses’ communication with Ghomeshi with the same ferocity as Henein. The best explanation may be that anything the Crown finds, it must disclose to the defense. In DeCoutere’s case, she told police she could not find old communications because she no longer had access to that email account.

    Victims’ advocates scrutinized the proceedings as a key test of a judicial system they see as stacked against women reporting abuse and sexual violence. Numerous appellate court decisions have limited judges’ ability to intervene in particularly brutal cross-examinations. And the defense bar, some legal experts argue, has a history in assault trials of trying to imply women’s sexual histories.

    Critics of Henein’s style have not been able to point to anything she said as unethical. They have voiced concerns, however, that the way her cross-examination unfolded could deter victims of sexual violence from coming forward in the future.

    High-profile losses for prosecutors can contribute to broad factors that discourage people experiencing sexual assault from working with law enforcement, said Verona Singer, the head of victim services for the Halifax regional police. Without commenting on the details of what took place at trial, she said: “I think there are many victims who will look at this outcome and say, ‘This is what we expected. The criminal justice system is not a good place for victims to go.’”

    But the attorney for DeCoutere, Gillian Hnatiw, said it was unfair to lay much blame at Henein’s feet.

    “The witnesses were treated, quite frankly, in keeping with how the Canadian criminal justice system permits them to be treated,” Hnatiw said. Henein’s duty was to take fullest advantage of that permissiveness. “It’s a system set up to determine criminal responsibility beyond a reasonable doubt. It advantages the accused in every way, as it is constitutionally required to do.”

    Hnatiw acknowledged that it was frustrating to see Henein create reasonable doubt over behavior that is normal for abuse victims, such as continuing to have a relationship with their assailant or waiting a long period of time to make a report. But Henein wouldn’t have been able to portray those behaviors as suspicious if the society around her didn’t embrace those same biases, Hnatiw said.

    “Reasonable doubt is based on the perspective of whoever is the finder of fact,” Hnatiw said. “They’re always bringing their own personal experiences and biases and perspectives to the ‘reasonable’ standard. And that’s where I think we have to work hard to educate people and push them to align what they think is reasonable.”

    http://www.theguardian.com/world/2016/mar/24/jian-ghomeshi-trial-why-prosecution-fell-apart

  2. NDP MP, Charlie Angus has made a Facebook post about the Jian Ghomeshi trial. Its now gone viral with over 32,000 likes and 13,000 shares.

    This is what he has to say:

    I have known Jian Ghomeshi casually for 25 plus years. What did I learn from the trial?

    1) That a woman who remembers being beaten is not considered credible because she didn’t know the make of his car.

    2) That famous people can afford lawyers known as “Hannibal Lecter” for their ability to take sexual assault witnesses apart.

    3) That Jian won’t bother to refute any of the charges because as some law expert says: “There are many reasons why an accused elects not to call evidence. One of them is that the complainants have been destroyed in cross-examination.”

    4) That Jian flourished as a predator in what should have been the safest organization in the country and that the legal system continues to fail women and

    5) that nobody close to Jian even pretends he is innocent, and somehow this isn’t an issue – the women are.

    Charlie Angus wrote this during the Ghomeshi trial before the verdict was announced.

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