The Jian Ghomeshi Trial: Theatre of the absurd is more like it

It’s a mystery that Crown prosecutors don’t regularly call on experts to testify about the reams of ­research on why sexually assaulted women stay in relationships or erase them from memory

I want to be friends with actor and Canadian Air Force Captain Lucy DeCoutere. So did the third complainant who testified three days after DeCoutere did against Jian Ghomeshi at his sexual assault trial this week.  

DeCoutere was the second woman to bear witness against the former CBC Radio host during what was certainly the most anticipated part so far of the widely covered celebrity trial. 

DeCoutere delivered her testimony with dignity and intelligence, with wit and a brave heart. She had courtroom observers at hello. 

But, when Ghomeshi defence lawyer Marie Henein introduced flirty photos, emails and a six-page handwritten “love letter” DeCoutere sent Ghomeshi in the days and months immediately following her assault – DeCoutere swore she had no memory of sending them – her credibility was damaged, at least in the eyes of the law.  

In an email the defence used to conclude that DeCouture accused Ghomeshi to enhance her career opportunities, DeCoutere described the investigation into allegations against him, the media attention that followed and her preparation for court as “great theatre.” Theatre of the absurd is more like it. Or mystery theatre, perhaps. 

It’s absurd, for instance, that the KGB statement – which is legal and police parlance for the videotaped interview sexually assaulted women give to investigating officers – is not in fact a reference to Soviet secret police. It refers to a precedent-setting 1993 Supreme Court action in which three witnesses changed their testimony against an accused murderer at trial, resulting in an acquittal. The defendants’ initials in that case are KGB. Since then, KGB statements are taken under oathlike conditions and have become central pieces of evidence in criminal cases from which witnesses cannot deter.  

It feels ludicrous that the police and Crown fail to make full disclosure to the woman in a sexual assault trial that the accused and his defence lawyer will have full access to her KGB statement and can use it to discredit her at trial. 

It’s entirely irresponsible to assume that any of us, sexually assaulted or not, has total memory recall. The very experience of being interviewed by police officers is intimidating and harrowing and can cause a woman to forget details when questioned from prepared scripts designed to assess her character and truthfulness, especially in the immediate aftermath of a traumatic sexual assault. Or, as in the Ghomeshi trial, 13 years later. 

In my 1998 civil suit against the Toronto police, in which I successfully sued them for negligence and Charter violations in their investigation of my sexual assault (Jane Doe v Board of Commissioners of Police for the Municipality of Metropolitan Toronto), we introduced witnesses expert in the area of sexual assault. 

They presented evidence about the complexities of that crime, its history, its systemic and discriminatory nature, and the harm it causes to women who experience it. 

They testified as to the prevalence of the crime and its gendered nature and why women don’t report their sexual assaults. You need only read the judge’s decision to understand the value and effectiveness of such expert testimony. Among other things, the judge found that the reason for the shoddy investigation was that the police did not take the crime of sexual assault seriously. 

She wrote that police were aware of long-standing systemic problems in the way that they investigate rape, yet no genuine efforts had been made to correct them. Rape myths and sexist stereotypes about women impeded their investigations.

Why it’s not standard practice for Crown prosecutors to call expert testimony in all sexual assault trials remains a mystery. 

In Ghomeshi’s trial, for instance, expert testimony could have referenced the reams of legal and academic research, court decisions and publications that explain why women who’ve experienced sexual violence from someone they know or have just met would internalize the crime, stay in or pursue the relationship, or erase it from their memory. 

The baffling reality is that law students are not informed of how to understand and use that information as evidence, and that police sexual-assault-investigation training locates police officers as the experts.

On February 8, the third woman to testify against Ghomeshi (her identity is protected by a publication ban, unlike that of DeCoutere, who decided to go public) took the stand. 

In her cross-examination, Henein again used emails, texts, Facebook posts, the woman’s friendship with DeCoutere and an intimate sexual act (a hand job she gave Ghomeshi after her claim of sexual assault) to suggest collusion among witnesses and cast doubt on her truthfulness. 

As she did with the prior witnesses, Henein suggested that a self-serving agenda motivated the media interviews the woman gave and the hiring of a lawyer and publicist to advise her pre-trial. 

There now seems little doubt that the defence will win its case, but it’s critical to note that Henein did not question any of the three women in any detail about the veracity of the sexual assaults they claim. Not once. 

Win or lose, the damage has been done. The message the Ghomeshi case has sent to other sexually assaulted women is that if you report, no one will defend you in court – and you will be judged on what you did before and after you were assaulted, even if we believe you. It’s the law. 

As NOW went to press Wednesday, Henein was expected to rest her case without calling any witnesses or Ghomeshi to testify in his own defence. Or will she? In a surprise move contested by the defence, the judge gave the Crown permission to read into the court record a statement by a friend of DeCoutere’s corroborating her evidence. In it, the friend says DeCoutere told her the details of Ghomeshi’s attack 10 years ago.


Jane Doe is a sexual assault author, educator and activist. Watch for her ongoing coverage of the Ghomeshi trial for NOW Magazine online and in print. | @nowtoronto

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