Former CBC broadcaster Jian Ghomeshi and his lawyer Marie Henein arrive at a Toronto court this week. Ghomeshi has pleaded not guilty to four counts of sexual assault and one count of overcoming resistance by choking.
Photograph by: Nathan Denette , THE CANADIAN PRESS
For just a moment it looked like change was in the air.
In 2014, when former broadcaster Jian Ghomeshi first fell so spectacularly from grace — a sudden and very public dismissal from CBC, and a stunning number of women who levelled accusations of sexual assault and gross behaviour — the backlash against the women was swift. Then Twitter began to rumble.
The hashtags #BeenRapedNeverReported and #IbelieveLucy (actress Lucy DeCoutere outed herself as a Ghomeshi complainant) emerged as countless people shared powerful stories of their own unreported sexual assaults. The outpouring of support was dubbed “the Ghomeshi effect.”
The hashtags seemed like something more than social media, something brave and liberating and necessary. Women were coming forward, unafraid.
Cut to 2016: Ghomeshi is in court, has pleaded not guilty to four counts of sexual assault and one count of overcoming resistance by choking, and his very capable defence attorney Marie Henein turns the tables.
Cut to questions about hair extensions, bikini shots and mash notes. Cut to “I love your hands.” Cut to a defence strategy that focused on the behaviour of the complainants with such laser intensity, that it looks like it will flip the script on the meaning of “the Ghomeshi effect.”
The groundswell of belief and trust, the sense of safety that #BeenRapedNeverReported represented, is gone.
Hilla Kerner, a spokeswoman for Vancouver Rape Relief and Women’s Shelter, said that the Ghomeshi defence strategy will have a devastating effect on victims.
“We hear from women we work with whose cases will be in court sometime in the near future that they are dreading this process.”
Kerner said just yesterday one woman who will be testifying in court later this year, expressed “fear and dread.”
“It will deter the few women who do go forward and put their faith in the criminal justice system from using the system to hold men accountable,” she said.
The number of reported sexual assaults is low. According to Statistics Canada, for every 1,000 sexual assaults only 33 are reported, 12 result in charges, six go to trial and three lead to conviction.
“In Canada we have an adversarial system premised on the idea that the best way to test whether evidence is true or not is through the cross-examination of witnesses. Witnesses will give oral testimony under oath and the only way to really test its credibility is to cross-examine, and to try to probe for inconsistencies, confusion, lies, whatever it might be,” said Janine Benedet, professor of law at UBC and co-director of the Centre for Feminist Legal Studies.
But what happens in court is only one small part of a wider problem around how sexual assault cases are handled long before the possibility of trial.
“For me, the most serious problem is even getting women through the doors of a courtroom to have their case heard,” said Benedet. Many decisions happen behind the scenes.
“There is a real attrition. Women don’t report. When they do report, another batch is screened out by the police as unfounded, the Crown screens out another batch as not likely to result in a conviction. Then we get to court and more of them are screened out through this process of minute cross-examination of the complainant’s history and the unwillingness to convict where we don’t have corroborative evidence (such as witnesses or DNA).”
Even when there is DNA, the long history of discrimination, social myths and stereotypes about women continues to influence perceptions of credibility and judicial outcomes.
“There is a suspicion of women who report sexual assault in a way that there isn’t for women who report other kinds of crimes,” said Benedet.
Although discriminatory assumptions about women — such as their sexual history, failure to scream or cry out, or implied consent through failure to fight back — have all been eliminated from rules of evidence through law reform, there is a persistent and ugly hangover.
In 2014 Canadian Federal Court judge Robin Camp made international headlines when he asked a sexual assault complainant why she “didn’t just keep her knees together” to prevent penetration, and suggested that “sex and pain sometimes go together — that’s not necessarily a bad thing,”
Michael Mines, a Vancouver-based criminal defence lawyer who has represented clients in sexual assault cases said he hopes the Ghomeshi case will not dissuade victims from using the criminal justice system.
“If it has a chilling effect, that’s really unfortunate,” he said. “I hope it doesn’t.”
From the perspective of a defence lawyer, Mines had a different take on the decisions by Marie Henein, Ghomeshi’s lawyer, to closely examine her witnesses and to keep her client off the stand.
“She owes a duty to defend her client. It seems to me, from what I understand, that’s what she did. Vigorous cross-examination is part of what happens.”
The criminal trial process is structured on a presumption of innocence, and conviction is based on a requirement of proof beyond a reasonable doubt.
Every ‘whack’ felt
Although it is defence counsel’s duty to defend their client, Benedet said she was surprised that Henein was able to “whack” the witnesses by dragging out undisclosed information. (“Whacking” is legal slang for a method of attacking a sexual assault complainant’s story in order to undermine their credibility while they are testifying.)
It’s not unusual for women who have been sexually assaulted by an acquaintance or a date to have some continuing contact, even social, friendly or affectionate contact, with the person who committed the offence, said Benedet.
But, because the Crown didn’t anticipate or bring that information out first, the witnesses were vulnerable to Henein’s cross-examination, she said.
Although the verdict in the Ghomeshi case won’t be in until March 24, publicity has ensured that every “whack” delivered has been felt.
“I worry that the attention on Ghomeshi will be very damaging because in many ways it isn’t a very typical sexual assault case: his profile, his pre-emptive Facebook defence, the amount of media and social media discussion prior to the case,” said Benedet.
The vast majority of sexual assaults that take place involve women who are poor, Aboriginal or very young, and, with or without a hashtag, most of their stories will never be heard in a court of law.