Thursday, March 31, 2016

The sad day

Jian Ghomeshi has been found innocent in his sexual assault trial.  It is a wretched outcome because there is no doubt that he is guilty of assaulting a large number of women.  When 20+ people come forward to insist that a powerful, influential, wealthy man attacked them there is no reasonable position that clings to doubt.

However, there are two component to guilt - truth, and law.  Jian is guilty from a truth standpoint, no question.  Unfortunately the reason he was acquitted from a law standpoint is that the women testifying against him had problems with their testimony.  There were not just small inconsistencies, but large outright falsehoods that were brought to light.  When you assemble their stories Jian's guilt is still completely clear, but in a trial when a witness brings out false information all the rest of their statements are no longer seen as reliable.

I understand why this is.  Imagine for example Jian were accused of murder and all evidence pointed to him.  Further imagine that a friend of his called Bob was providing Jian with an alibi, assuring everyone that he and Jian went to minigolf, dinner, and a movie that evening.  Now imagine the prosecution proved conclusively that Bob wasn't at the movie theatre nor the mini golf park that night.  We would quite reasonably conclude that Bob's testimony was extremely unreliable, and would likely ignore it in our deliberations, even if the murder took place during dinnertime.

We have to consider these things when we consider witness testimony.  The law has to look at witness statements and decide how much weight to assign them because various accounts nearly always conflict.

However, that doesn't mean that we should just throw up our hands and move on.  The question I want to know is why so much of the women's falsified testimony existed in the first place.  Part of the issue was the women not telling the truth about their contact with Jian afterwards, and that shouldn't even be part of the process at all.  If a woman comes forward to complain about an assault what happened the next day or week is *immaterial*.  The police shouldn't be asking, the lawyers in court shouldn't be allowed to ask, nobody should be able to push for that information.  It isn't part of the case, and for good reason, because making it part of the case is just going to generate exactly the false negative we saw in Jian's trial.

To me this miscarriage of justice should be a signal that we are asking the wrong questions.  We still have to insist that people tell the truth in legal proceedings if they are to be believed - removing that restriction is a disastrous mess.  However, we can stop asking assault victims all kinds of questions that aren't related to the assault, especially when those questions are of the type that people are going to want to lie about.  Of course women who contacted Jian later aren't going to want to admit that they did so.  Them doing so isn't an admission that the assault didn't happen, because we know for a fact that many abused people take time to get out of abusive situations for many reasons, but people will still judge them harshly for it.

When a woman is assaulted we should not look for reasons that it is her fault.  Short skirts, flirty behaviour, going home with a man, these are all often cited as reasons that she deserved what she got, and that is shit that needs to stop.  If we are asking women to relate all kinds of terribly embarrassing details about their sex lives and expecting perfect honesty we are going to get this same situation over again, entirely predictably.  Not only that, but we are going to convince women that they should never come forward because they will be put in the position of answering such questions.

We should not be putting hurt, vulnerable people in a position where they feel tremendous pressure to lie and then disregard their other statements based on those predictable lies.  Changing that is a thing that needs to happen, and it is slowly happening, but unfortunately not quickly enough for Jian to get the conviction he so richly deserves.


  1. Ugh yeah. I literally don't know what to do with this shit, because of course the legal standards for guilt need to be at least resembling what they already are. But it's actually even more complicated than what you're allowing for here; it's entirely possible (and even likely) that the witnesses weren't lying about the timeline with respect to contacting Ghomeshi, because experiences of trauma, and especially dealing with manipulative abusers can seriously impact a person's ability to clearly remember events, *especially* the timelines and order in which they happened.

    When I was in early stages of processing the shit with my own abuser, I knew that I hadn't cut off contact with him immediately after breaking up, but I *was* absolutely shocked to realize we'd stayed in nearly /daily/ email communication for more than six months after I broke up with him. I have no explanation for why I did that, and it wasn't(/isn't?) how I remembered it, but it's definitely what went down.

    The last time my dad went off the rails, for instance, when I decided it was my last straw, I very deliberately made sure to immediately tell the story of what has happened to literally anyone who would listen to me, because I know from past experience that if I didn't I wouldn't be able to remember it properly a week later - this is precisely what happened with the conversation where he kicked me out of the house; I know the generalities of what we were talking about but I have no idea how we got there or what I said that actually made him utter what he thought was an empty bluff/threat that I called him on.

    Soooo, I guess long-winded, but your point is the most important one I've seen made here - if these women had been expected to talk less about the surrounding events to their assaults, it certainly would have helped. Still, though, when talking about the actual traumatic event, it is weirdly unfair to expect anyone to have a very clear and straight-forward idea of exactly what happened that they can consistently recall. The fact that memories around these things are fucked up is pracrically evidence that they actually happened, so I'm not sure how we are to deal with that.

    1. Yeah, we definitely should expect inconsistencies, and the judge specifically said that such things were totally normal and not a reason to discount testimony. People in abusive situations are in really bad headspaces so both their choices and memories are going to seem bizarre or out of place when examined under a microscope at a later time.

      From what I have read though in this particular case the judge actually found that the witnesses deliberately colluded to hide information and lie to the court and police. It sounded egregious in terms of stretching their credibility. So yeah, obviously they were abused, but legally once things were the way they were I don't know that the judge could do anything else. It sounded to me far less like an evil judge and far more like a failure of the system.

      Which is bad, but I think that recognizing just how it went bad is key to making it better in future.

  2. Can fault be found in the legal advice, or lack thereof, for the accusers? It seems like they should have been informed that truth is critical.

    I read that one of the challenges is that the accusers don't get legal advice like the defence does. The Prosecutors do their thing, but since they don't represent the accused (they represent the crown), the accusers don't get the help they need.

  3. I don't understand how a conviction could occur; even if there statements did not have inconsistencies. The courts considers each crime separately; if he had committed a particular crime 20 times already, it is no easier to prove the 21st crime.

    In terms of evidence, charges were only supported by the statements of one witness/victim regarding what happened years ago. I believe sexual assault normally happens in private places; so other witnesses will be rare.

    When there are a multitude of complaints; there is much less doubt about there being a problem than if there was only one complaint. Though we also want to provide to opportunity for people to overcome a bad past; and not become assumed guilty because of past actions.

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  4. I think you are dead wrong. The system did not force this verdict and the judge made his verdict because of terrible assumptions that he ought to know are wrong. Lying about substantive things? Like this:

    [28] The day following her police interview, L.R. sent a follow up email to the police to explain that she remembered very clearly that she was wearing clip-on hair extensions during the hair pulling incident in the car. In cross-examination, L.R. testified that at some point she reversed this "clear" memory and is now adamant that she was not wearing clip-on hair extensions during the incident.
    [29] L.R. frequently communicated with police by email and phone. She met and spoke with Crown counsel. She did nothing to correct the misinformation she provided to the police about the hair extensions. Equally as concerning as the reversals on this point, was her claim that she had, in fact, disclosed this reversed memory to the Crown. When pressed in cross-examination, she conceded that this was not true.

    This was literally about whether she could remember whether she was earing hair extensions while being sexually assaulted. I know there were other things to, but any reasonable judge would simply write: "There was some talk about whether she was wearing hair extensions. Whether or not she was is not relevant to the charge." If you tried to use this defense against non-sexual assault, you'd be laughed out of court.

    Your comparison to the murder alibi isn't a fair one. The idea of throwing out someones testimony because of an inconsistency is foolish. The inconsistency should be in some way relevant to the claim they are making. Proving someone was not with someone else between 6:00 and 9:00 is relevant to their claim they were together between 5:00 and 9:00. Whether or not someone was wearing hair extensions is not relevant to whether they were assaulted, and getting your hair pulled hurts whether you have them or not.

    I read Vienneau and David's responses above and see exactly what I've been saying about this case. In sexual assault cases, people think it is the responsibility of the victim to prove they were assaulted. While people posting on a blog can be forgiven for this mistake, a judge can't. It is the prosecutor's job to prove the charges, the women aren't on the hook. They don't have discovery rules. If they didn't want to share information about email with the cops they weren't obligated to, and Ghomeshi doesn't get a pass on assaulting them because they didn't.

    For one of the women I could see someone mournfully concluding that the description of events was just too variable. I could forgive someone for thinking other parts of the evidence was a suspect. But for the choking charge? He wrote a paragraph about how he couldn't understand her not thinking some surrounding events were relevant to that - but you can't even consent to being choked in Canada. They were irrelevant as a matter of law and he knows that.

    The ruling is a shit show, when the judge has to choose between applying the actual law and demanding lurid details he chooses the latter.

  5. There are some things that are leaving me very unsure here. If as you say the only real issues are memories surrounding the wearing of hair extensions or not, and the revealing of that or not to various people, then the ruling is a disaster. But when I read about this people consistently said that the women colluded to deceive the court and police, in addition to having many inconsistencies, reversals, and admitted lies in their testimony.

    The hair extensions fiasco certainly explains the descriptions of lies, inconsistencies, and reversals, but colluding to lie to the court? That is bad news, and definitely suggests that the court can't just take testimony at face value, especially when there is literally zero other evidence.

    So where is the truth of the matter? I am willing to be convinced on this, but the reports I am getting from news sources (written by legal experts, in some cases) tell a completely different story than you are telling, as though they are not seeing the same facts you are at all.

  6. I read about half the ruling and got too frustrated to read the other half. The possible collusion thing is just as much of a farce. I won't quote the whole thing, but it's sections 107 to 110. The judge's concern with collusion is that two of the witnesses discussed their experiences and the trial, and agreed that they wanted to bring Ghomeshi down. Here's a sentence: "While this anger and this animus may simply reflect the legitimate feelings of victims of abuse, it also raises the need for the
    Court to proceed with caution."

    So yeah, it makes sense for two women who have been assaulted by the same man to share anger at that man, but *also* them doing so is evidence that they are colluding and that their testimony can't be taken seriously. There is a question about the order of events - whether SD discussed her plan to come forward with Lucy DeCoutere before coming to the police, which is a little more plausible, but saying, "Look, there is no evidence that this was some sort of conspiracy, but... what if it was?" That's bullshit. That's not a reasonable doubt. If the only plausible alternate explanation someone could provide to a crime was that the victim was struck by lightning, we wouldn't call that reasonable doubt. About 50 people are struck, by lightning in Canada a year, how many have multiple women conspire to raise sexual assault charges against them? And, what, these women knew to say things that would make the conspiracy obvious in private conversations, but said they were going to "take him down" in emails the defense could get their hands on? It makes no sense.

    I know legal experts have said this is right. But Ghomeshi's lawyer, in an interview with CBC, said that if you accuse someone you need to have proof. Like I said, shifting the job of prosecuting from the Crown to the victim, because that's what we do in sexual assault cases. Peter Mansbridge, who also knows how criminal law works, didn't say, "Wait a minute, Ms. Henein, but it isn't the accuser who has to prove the charge, is it?" That's what lawyers do, that's what judges do, that's what legal experts do.

    And honestly, who do you trust to read a ruling properly, a bevvy of legal experts, or me?

  7. I mean, look at this:

    [136]Each complainant in this case engaged in conduct regarding Mr.
    Ghomeshi, after the fact, which seems out of harmony with the assaultive behaviour ascribed to him. In many instances, their conduct and comments were even inconsistent with the level of animus exhibited by each of them, both at the time and then years later. In a case that is entirely dependent on the reliability of their evidence standing alone, these are factors that cause me considerable difficulty when asked to accept their evidence at full value.

    Like, that is an absurd piece of misogyny and a stunning lack of understanding of how people who have been sexually assaulted behave. He's not just saying it counts against their credibility that they kissed Ghomeshi/had sex with Ghomeshi after the assault, he's saying he doesn't think they should be *angry* at Ghomeshi. From what I understand he's actually a good judge, but judges apparently just turn their brains off when sexual assault is on the line. The ruling is full of crap like this, if you read it, it just jumps off the page.

  8. Thanks for posting about this Sky. An important topic:)

    What I've heard from Jesse Brown (CANADALAND show.. he broke the Ghomeshi story) is the same as Sthenno wrote - that the 'conspiring' was talking about their experiences and case beforehand.

    During the CBC interview, Ghomeshi's Lawyer Marie Henein says of the Canadian legal system "It's a system I believe in. I value very much and I think we should all be proud of". Really? We should be proud of a system where (probably) 80% of victims of sexual assault don't even feel comfortable going to that system for a chance at justice?

    On another note, I'm uncomfortable with the use of the term "the women" when talking about false testimony. It feel right to me to lump all three assault survivors in together as "the women" as if any action taken by one paints the others with the same brush. Sky, you're clearly on the right side here but I've, unfortunately, seen the assault victims dismissed as "the women" on less enlightened forums (like the mainstream Canadian news). I think that we have to be careful treating all of Ghomeshi's victims as one singular group because it becomes easier for the misogynistic assholes out there to say "See! That one lady lied so 'the women' are liers". Am I making sense here?

  9. If the only thing conspiring means is discussion of their experiences, then the reporting I saw was quite wrong. I suspect to really understand it to my satisfaction I would need to read all the transcripts and material myself.

    While I agree that talking about women as a monolithic entity can be a problem, I didn't see the names of the three women who testified against Ghomeshi in the trial anywhere, none of the media specified their actions individually, the court referred to them as a group, and I don't know that they want to be identified. In this case it isn't remotely practical for me to separate them out and I suspect most of the media is in the same boat. Of course they should still be very careful not to paint all women with the same brush, and to be clear that they refer to these specific three.

    Henein is being interviewed as if she can be neutral at all, but she can't be as she still represents Ghomeshi. She currently has a professional mandate to protect his legal interests, so everything she says has to be read as forwarding that agenda and only that agenda. It leads to her saying all kinds of garbage, but currently her job (and it is an important one) is to get Ghomeshi off on his upcoming charges no matter what it takes. As such I don't think we can differentiate between Henein being a bad person, and Henein trying to get an innocent verdict for her client in a political climate where being a bad person is helpful propaganda. I wish the political climate weren't in such a state, but it is.