Now that the trial portion has ended and the women who have accused Jian Ghomeshi of sexual assault have been found guilty of not behaving the way sexually assaulted women should, we await the judge’s decision on the matter, scheduled for March 24.
In the interest of full disclosure, I should tell you that my observations of the trial are biased: I know that the legal system doesn’t work for women who report sexual assault.
I believe the three women involved, and I believe the other women who came forward to accuse Ghomeshi but whose cases didn’t get to court. I also believe the three women who approached me during the eight-day trial to tell me about their own encounters with Ghomeshi.
The court case, and all the media attention it received, was not the first sexual assault rodeo I’ve been to. I support sexually assaulted women regularly at their trials, at their request, and most often after they have abandoned hope about the outcome.
I’ve been across the country to interview sexually assaulted women about the systemic nature of the crime, like its contested and revictimizing language, the efficacy of the publication ban and rape kit, police warnings, and the infantilizing and demonizing of sexually assaulted women socially, in court and by the “helping” professions, including some of the feminist ones.
Ghomeshi defence lawyer Marie Henein was legal counsel to the Feminist Coalition I formed in 2012 to seek intervenor status at the Supreme Court of Canada in support of the full decriminalization of sex work and the human and labour rights of sex workers. She was feminist, brilliant and pro bono. I admired her greatly, and her shoes and I am in her debt.
But I cannot countenance the moral code by which she and other defence lawyers in rape cases believe that it’s acceptable to support the full rights of the accused while ignoring the rights, dignity and humanity of women who testify against them – even though our law allows it.
I’ve had the privilege to meet and correspond with internationally celebrated former Supreme Court justice Claire L’Heureux-Dubé, who would, I believe, censure Henein for referencing her feminist work miles out of context in support of Ghomeshi during closing arguments last week.
L’Heureux-Dubé’s judgments have upheld the testimony of sexually assaulted women and debunked the rape myths that Henein chose to perpetuate in her defence of Ghomeshi. These are the sorts of contradictions and dualities that criminal law sanctions.
But let one woman contradict or fail to recall her initial account of her sexual assault, let her forget or hide something she knows will harm her, and all legal hell flames up around her.
Ghomeshi’s accusers were portrayed as colluding, career-focused liars. The defence and the Crown prosecutor ignored the actions of the accused, reinforcing the paradigm that sexual assault is about the woman’s behaviour, not the alleged perpetrator’s. The outcome? Even the Toronto police admit the conviction rate is “abysmally low,” and Statistics Canada confirms that fact.
The Ghomeshi trial is far from a one-off. In a courtroom one floor up at Old City Hall, another trial was playing out that made Ghomeshi’s seem a degree less odious by comparison – only there was just one reporter covering that case.
During the cross-examination of complainant Mandi Gray, defence lawyer Lisa Bristow attacked the York PhD student and activist with every rape myth in the book and trotted out a few of her own.
Bristow remarked during her questioning that Gray “seemed like a dead fish in bed,” read out her phone number in open court and accused her of winking at and sticking her tongue out at the accused, Mustafa Ururyar, while on the stand. She also accused Gray of lying to get revenge, drinking too much, publicly groping Ururyar’s groin and texting him for hot sex.
Gray was pilloried for not reporting right away, delaying the collection of her sexual assault evidence kit, using the assault to further her academic career, not fighting back, remaining in bed with the man who assaulted her and being a political activist. The Crown prosecutor rose only once to object.
When Bristow asked the judge to caution courtroom observers, whom she called “the peanut gallery,” against gasping in disbelief at what we were hearing, he obliged.
Gray’s cross-examination has been held over until April 11 and two more dates in May after it was revealed that the investigating officer had failed to submit his notes and was on vacation.
Last summer Gray launched a precedent-setting complaint with the Ontario Human Rights Commission alleging that York University had been negligent by not responding to her sexual assault.
A Human Rights Commission tribunal is not a criminal court. The treatment it affords women who have been sexually assaulted remains to be seen. But what is significant about it is that it can order change while a criminal court cannot.
Aboriginal women tell us that while restorative justice traditions work well in many circumstances, they are not effective in addressing crimes of sexual violence.
So where are women to go from here? There is talk of establishing a sexual assault court as a solution.
But the laws governing the crime remain the same, and who will educate practising defence lawyers, Crown lawyers and judges about not “whacking the complainant”?
Law students on some campuses are being excused from criminal law classes that address sexual assault, since the contents might “trigger” them. Sympathetic law professors have suggested such content be removed from law school curricula. In effect, lawyers would then learn about the crime in court, over the bodies of sexually assaulted women.
Despite its much-heralded aim of providing a less gruelling experience for women abused by their partners, Toronto’s Domestic Violence Court, known as K Court, is an option women and their abusers must mutually agree to use. Given the conflict inherent in crimes of domestic violence, many do not.
Recently, Toronto police have been instructed to divert sexual assault cases to K Court at the complainant’s request. but although Mandi Gray is certain that hers was not a domestic violence offence (she had been dating Ururyar for two weeks) and she strongly protested the designation, her trial was sent there. Some speculate that the reason for such diversions is that K Court is underused. One concern of women who work in the area of sexual assault is that the crime itself can further disappear in K Court and be conflated with other crimes of violence against women.
Perhaps it’s time we praised women for having the courage not to report their sexual assaults, especially if they are racialized, colonized, disabled or sex workers.
The overwhelming majority of sexually assaulted women stay away from our legal system, citing fear of the police investigation and the court process. I believe it’s also because they’re not stupid.
And can we please abandon the guilt-inducing mantra that they can save other women if they report their assaults? That is not the job of assaulted women. Their job is to take care of themselves and make informed decisions about what she is going to do next. Which should include affordable access to a lawyer of her own who is granted standing in court and can function fully during her trial – if she decides to report.
Instead of relying on legal reform and watered-down legislation as panaceas, maybe sexually assaulted women and those who support them need to identify the ground zero we find ourselves at and create a little mayhem of our own, on our streets, in our courts and media, at work and in our homes. Nothing else is working.
A woman I am supporting will testify against the man accused of sexually assaulting her on Thursday (February 18). As this article goes to press, the Crown has not yet met with her to prepare her for trial and cross-examination. In many cases, that meeting takes place the day of the trial, as little as 15 minutes before it begins.
Jane Doe is a sexual assault author, educator and activist. Read her ongoing coverage of the Ghomeshi trial for NOW Magazine online and in print.
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