Ghomeshi protestors

Everyone's talking about the outcome of the Jian Ghomeshi trial after he was acquitted of all charges against him last Thursday, so let's get straight to the point. 

This was, and still is, a huge blow for survivors all over the country who'd tuned in, hoping they'd see justice on such a public stage with such a well-recognized name.

But it's not a surprising development.

An important fact of this case to keep in mind is that Ghomeshi did not testify during his trial — the judgement was entirely based on the credibility of the witnesses.

"Each charge presented against Mr. Ghomeshi is based entirely on the evidence of the complainant," read the verdict. "Given the nature of the allegations this is not unusual or surprising; however it is significant because, as a result, the judgment of this Court depends entirely on an assessment of the credibility and the reliability of each complainant as a witness."

The credibility of these witnesses hinged several times on the fact that the sequencing of events was out of order or inaccurate. Issues raised in the hearing included the fact that the first complainant, L.R., was unable to recall the exact sequencing of events; the second accuser, Lucy DeCoutere, had a continued relationship with Ghomeshi; and the third, S.D., misrepresented her relationship with Ghomeshi.

In December 2014, Time Magazine released an article describing how trauma survivors remember the event. The article suggests that selective focus and a lessened ability to encode memories in accurate progression is common because the amygdala and hippocampus take over the fear response. This leads to attention being focused on "otherwise meaningless details".

"What gets attention tends to be fragmentary sensations, not the many different elements of the unfolding assault. And what gets attention is what is most likely to get encoded into memory.... Fear also impairs [the hippocampus'] ability to encode time sequencing information, like whether the perpetrator ripped off a shirt before or after saying 'you want this.' "

Bringing DeCoutere's relationship with Ghomeshi after the assault not only allows for Justice Horkins to evaluate the motive behind her correspondence as he sees fit, but reemphasizes the narrative of a 'good victim'. A good victim of assault fights back. A good victim cuts off ties with their abuser. A good victim reports what occurred immediately.

By extension, a bad victim – one who does not fit this narrative – is seen to be lying.

My intention on writing this column had been to pick the evidence apart piece by piece and show where the judge erred in understanding the position of victims of assault. But the reality is the survivors' explanations of their behaviour unfortunately justifies reasonable doubt. 

Instead, the column I can write is one that urges us to change the way sexual assault trials proceed to reflect the situation of survivors. The current burden of proof model allows for inconsistencies in sequencing of events – a well documented response to trauma – to be used as damning evidence against survivors.

It's not enough to say that this will change the discussion we have on sexual assault cases. We've said that time and time again – after Kesha, after Cosby, to name a few notable cases in recent memory. We say this will change the discussion like it's a natural, acceptable price for the victims of sexual assault to pay.

And now, it's on the survivors to respond rationally. To make a very real and debilitating sense of exhaustion, sadness and hopelessness palatable to a larger society that so far doesn't seem to care.

Every sexual assault trial emerges as a discussion on the credibility of survivors in a way that's not mirrored in assault cases or murder cases.

I'm not saying that we need to automatically believe everyone who reports sexual violence as fact. But I think to say we have a system where belief is the starting point is false and ridiculous. According to a report released by Statistics Canada in 2014, 95 per cent of sexual assaults were not reported to the police in 2014.

Can we blame them?

And finally, Justice William Horkins' quote that has been making the rounds:

"Courts must guard against applying false stereotypes concerning the expected conduct of complainants. I have a firm understanding that the reasonableness of reactive human behaviour in the dynamics of a relationship can be variable and unpredictable. However, the twists and turns of the complainants’ evidence in this trial, illustrate the need to be vigilant in avoiding the equally dangerous false assumption that sexual assault complainants are always truthful. Each individual and each unique factual scenario must be assessed according to their own particular circumstances."

We have set up a system where survivors are penalized for withholding information due to the very real fear that their assault will be viewed as less valid contingent on their actions, as reinforced by public discourse and trials like this one alike.

Until we set up a system that recognizes this, we need to understand that survivors feel the need to tread the line between painting the full picture of their assault and the picture where they're most likely to get a conviction, as that often is the best road they can take for the justice they deserve.

If you or someone you know is in need of immediate counselling, the Sexual Assault Centre London has a 24-hour crisis and support line at 519-438-2272.

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Katie is the Print Managing Editor for volume 110 of The Gazette. Previously, she was a news editor for volumes 109 and 108 of The Gazette and a staff writer for volume 107.

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