Why the Jian Ghomeshi trial may change nothing for sexual assault survivors
The case prompted a helpful public conversation, but nothing has changed in how courts deal with the crime.
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There were promising signs in the days after the allegations about Jian Ghomeshi were published — and more so after charges were laid.
The stories that emerged on #beenrapedneverreported prompted conversations, on and offline, about what changes were needed so women would not feel afraid, failed, betrayed or ignored by the justice system. The police chief at the time, Bill Blair, appealed for victims to come forward so police could investigate “as quickly and compassionately as possible.” The provincial government launched a framework to tackle sexual violence and harassment and announced additional funding for sexual assault centres — though demand still exceeds the services provided.
The trial, beginning Monday with unprecedented media and public attention, will offer an unusual opportunity to scrutinize a system in which sexual assault victims must effectively accept that they will be put on trial in a bid to hold their attacker accountable in a criminal court.
Whether the notoriety of this case might encourage more women to come forward to report sexual assaults, or even deter such assaults, depends on how the trial unfolds. But there is little optimism among observers.
The way criminal trials are run has not changed since the public outcry a year ago, says Amanda Dale, executive director of the Barbra Schlifer legal clinic, which serves women who have experienced violence.
“The threshold is guilt beyond a reasonable doubt, and the only way to establish that doubt, in the minds (of defence lawyers), is to attack the credibility of the witness,” Dale says.
“Despite the skill of a defence lawyer like Marie Henein… I can’t see how, in the context of the publicity that exists around these particular charges, that she can discharge her duty as a zealous advocate for her client without repeating many of the same problems that led to public handwringing that we’ve seen over the last year.”
That said, she adds, there is always a possibility.
“Henein, out of any top criminal lawyer, is perhaps most likely to be able to craft a more creative approach to this. It will be interesting to see if she can draw a line between a rigorous defence and a misogynist defence.”
Meanwhile, she says, inside and outside the courtroom, myths linger around false accusations, around women regretting sex and being vengeful.
“There has been progression and evolution in our thinking about sexual assault. But I have to say that people have been saying for 30 years that we are undergoing social revolution — or, now is the moment, this is the case that will shift public attitudes about sexual assault,” says UBC law professor Janine Benedet.
“While we may be discarding some of the old myths and stereotypes — like a woman who had sex outside of marriage is less credible — I’m not sure we haven’t replaced them with more myths that are more steeped in sexual mores of the time.”
For example, Alberta judge Robin Camp faces an inquiry after being roundly criticized for his comments in a sexual assault case where he asked the complainant, for example: “Why couldn’t you just keep your knees together?”
But there are now cases where arguing, “Well, some women like rough sex” is accepted to counteract allegations where women do have physical evidence of an assault such as bruises or injuries. The case of Cindy Gladue, an aboriginal sex worker who bled to death in a hotel bathtub in Edmonton after an encounter with an Ontario trucker — who was acquitted — is one extreme example.
Jane Doe, the woman whose rape case in 1986 and ensuing lawsuit led to changes in the way police approach sexual assault cases, swings between the cynical view that this trial won’t be any different from the hundreds of high-profile trials that have gone before and the hope that the public scrutiny it brings could prompt political action.
Much of that, she says, will depend on how the trial is reported and the kinds of commentary it sparks.
“In some ways, these women have the best opportunity that we have seen in a long time for a self-conscious, more reflective approach, by certainly the state side of the case,” says Dale. “How the Crown put this together, how the police worked on putting this together… (the complainants’) experience of the system has probably been exceptionally good.”
The question then would be: Will it be the same for the case in the courtroom next door?
“Is the sex worker who was assaulted in an alley going to get the same treatment? Is anyone who is not in the public eye going to get the same treatment? That’s a broader systemic change we still need to engage in.”
Outside the courtroom, particularly on social media, women’s rights advocate and educator Julie Lalonde sees the potential for conversations to happen about how we address allegations of sexual assault or harassment beyond criminal proceedings and verdicts.
Those conversations are needed, she says, because she would be “flabbergasted” if Ghomeshi is convicted.
“I have no faith in the justice system. So for me, the focus is less on a criminal trial and more on community accountability.”
In Ghomeshi’s case, Lalonde says, it seems the court of public opinion will not be swayed by not-guilty verdicts – people are instead choosing to believe the many women who have come forward. Much of what he has been accused of is not even being addressed in the trial.
“You don’t have to be convicted of a crime for people to believe you are not worthy of a pedestal,” Lalonde says. “Justice for women doesn’t begin and end in a courtroom.”