Nathan Denette/CP photo
Sexual assault charges against Jian Ghomeshi resulted in an outpouring of truth-telling and increased awareness of violence against women - or at least it did for a while.
But if the past sexual and other histories of Ghomeshi's accusers in the upcoming pre-trial, which continues May 12, are used in cross-examination to discredit them, all of that will be undone.
And don't think for a second that discrediting his accusers won't be part of Ghomeshi's legal strategy. It is accepted practice to do so, and any defence lawyer worth the money knows exactly how to do it.
In a talk later quoted in Lawyers Weekly, How To Whack The Complainant Hard, celebrity lawyer Michael Edelson said: "…the preliminary inquiry is the ideal place in a sexual assault trial to try and win it all. You've got to attack the complainant with all you've got so that he or she will say, 'I'm not coming back in front of 12 good citizens to repeat this bullshit story that I've just told the judge.'"
Lawyers advertising their legal prowess on sexual assault cases online promise "vigorous and skilful cross-examination to expose the holes in the prosecution's sexual assault case."
The belief that women lie about sexual assault continues to inform our legal system. It's difficult to call that belief and other assumptions about sexually assaulted women "rape myths" any more. The myth is that they're myths at all, as opposed to assumptions we grow up with from film and TV and in mainstream and social media.
You know the ones I mean - that women are lying, that they did not resist, that they failed to report the crime right away or at all.
Such assumptions are magnified if the woman who has been sexually assaulted is disabled, trans, racialized, colonized or engaged in sex work; if she drank or took other substances, dressed "provocatively" or had sex with the accused before - or with anyone at all, for that matter.
The law appears to prevent any of a woman's history being entered as evidence in a sexual assault trial. But we forget to read the fine print. It's up to the judge whether to allow such character assassination to take place or not.
The law says lawyers have an ethical obligation not to engage in cross-examination about a woman's history, and that obligation does not infringe on the full rights of the accused. And yet we don't require judges, the Crown and defence attorneys at trial to uphold that principle. Because of this failure - and a conviction rate of less than 1 per cent in sexual assault cases - 90 per cent of women don't report sexual assault.
We cannot, must not, stand idly by while the circus that will be the Ghomeshi trial subjects the women who reported being assaulted by him to such treatment. Their character and histories will be reported every day in every way in the weeks ahead. Nor should we condemn their decisions not to go public with their names to protect themselves.
The cultural shift and systemic change required to transform what is happening to women in sexual assault trials could be partially realized by simply addressing the rape assumptions in law school curricula. And in all the other professions dealing with the crime: medicine, the humanities, social work and criminology, for instance. And let's not forget sports, police studies, engineering, film and TV production and social media.
In addition, sexually assaulted women must have their own legal representation in a court of law. It's a no-brainer, and happens in many other countries.
I had my own lawyer during the trial of the man who raped me. As a result, instead of sitting cloistered on a bench in the hallway while my rape trial proceeded without me, my lawyer argued for and won my right to remain in the courtroom and hear the entire evidence.
Information I heard there allowed me to successfully sue the Toronto police force for negligence and gender discrimination in their investigation of my rape.
During that civil trial, I experienced the sort of attacks and interrogation the women testifying against Ghomeshi will likely undergo.
This is how they do it. During the discovery portion of a sexual assault trial, the woman involved is required, under oath, to give up her OHIP and social insurance numbers. If she has seen a therapist, those records must be submitted.
Discovery allows defence lawyers to ask any number of invasive and personal questions: if she has been sexually assaulted before, if she was abused as a child, if she is or was mentally unwell or in conflict with the law. All of that information about her is turned over to the accused and his defence lawyer. They then mine it for evidence to use against her in cross-examination at trial.
In most cases, a so-called expert witness is hired by the defence to interview and conduct psychiatric tests on the woman. The expert then produces an assessment of her, using his professional bible, the Diagnostic And Statisticians Manual, or DSM 5. And believe me, he's going to come up with a diagnosis that damns her to hell. It's what he's paid to do, and it's not that hard, since they're trained to find the worst in anyone.
During my civil trial against the police, my diagnosis was pretty much the same as Karla Homolka's. The judge did not object or protect me. No one did.
Some of the things that women in sexual assault trials are cross-examined on are unbelievable, but we don't hear about them. And that seems to be okay with everyone.
Just last month, the vaginal tissue of Cindy Gladue, a young Indigenous woman, was entered as evidence at the trial of the accused in Edmonton. That she allegedly consented to the acts that ended her life, the rape beliefs about her and who she was, allowed her accused murderer to go free. (The Alberta Crown has appealed the verdict.)
What more do we need to show that the legal system is an undignified, unjust and unsafe place for sexually assaulted women?
What else don't we know about sexual assault trials and police investigations of this crime?
Why should we continue to support a legal system that uses and generates a sexist and racist rape mythology in defence of men who commit these crimes?
What about focusing on their past histories? But I forgot. There are laws to prevent that sort of inquiry.
Jane Doe is an author, lecturer and activist. Her book The Story Of Jane Doe (Second Story Press) will be reissued this fall.