the saga of Jian Ghomeshi

[Jenny]

I thought several posters said he was clearly guilty, and it was a miscarriage of justice that he wasn't convicted when everyone knows he's actually guilty. And the reason he wasn't found guilty was due to victim-blaming rather than the witnesses lying in their testimony.

Many believe he is guilty, many times over.

For some, the miscarriage of justice isn't that he wasn't that he wasn't convicted based on this trial - I think most get that the prosecution did not successfully prove his guilt in legal terms. This miscarriage of justice is that a person with a history of sexual abuse and violence, plus sexual harassment, is currently a free man. I think it goes deeper than that too - the general miscarriage of justice that results from sexual and physical abuse being difficult to prove in court and the process being so difficult for victims. The worry of many, including me, is that this is a setback for other victims of violence who might now be less inclined to come forward, because why go through all that if there's little chance the accused will be convicted?

Some have taken issue with some of what the judge said in his ruling - not that he's necessarily wrong, but in what he chose to highlight and the words he used. I think most agree that the judge did what he had to do in his ruling though, and the general feeling in the media coverage I've read, the discussion around town, a poll that was published a few days ago, is that the prosecution screwed up.

I think it's also important to consider why the victims changed certain details of their stories, and why no one brought forward the additional evidence before the defense team did. In the former, there are many reasons why details of a story can change, especially in a traumatic situation and over time. For the evidence "withheld," I don't think it's clear how that happened - did the women lie, or did they just not tell anyone? Did the police decide to leave some evidence out because it didn't support their case? Did the prosecution advise them to withhold, or did they think it wasn't relevant? Did their own lawyers advise them to hold the info?

 

[algonquin]

My brother-in-law is a lawyer and we had a long conversation about the verdict while washing the Easter dinner dishes. My BIL said is that Justice Horkins is a judge's judge. Being skating fans, you will know what he means.

 

[Artemis@BC]

Just curious: has your BIL had dealings with Horkins? Or is he just basing that assessment on how Horkins ruled and what he said in his ruling?

 

[rjblue]

Their behaviour afterwards? You mean that they thanked him for the sex, said they wanted to fukc him again, sent him pictures of themselves and then sent each other thousands of messages about how to corroborate their evidence?

If it was you on trial, would you want to be convicted on the testimony of witnesses whose credibility was so much in doubt?

That is why these guys get away with this kind of crime, and probably don't understand their behavior.

When you are a victim of assault from someone you know, your actions are often irrational. It can take months to process that it wasn't about you or something you did, it was assault/rape.

I know either first hand, or second hand from my sister and daughter that for instance, young girls who are raped by their boyfriend as their first time almost never break up with him.

It makes it almost impossible to criminally convict men like Gian, but I think it is a good thing when women come forward and warn about them, and fine that they are guilty in the court of public opinion.

 

[algonquin]

Just curious: has your BIL had dealings with Horkins? Or is he just basing that assessment on how Horkins ruled and what he said in his ruling?

I did not think to ask that. My BIL did work for a family law firm in downtown Toronto, so perhaps he dealt with Horkins or knows him by reputation.

 

[Japanfan]

I'm not understanding why people think Ghomeshi is guilty, and why victim blaming is going on. It's been shown pretty conclusively the women in question lied. That's not victim blaming.

What I question is the fairness and integrity of the process/investigation by which that conclusion was reached. Sexual assault victims are commonly (and unfortunately) treated like they are the ones on trial. Lawyers can and do trip them up completely on the stand and confuse them. And a confused victim, especially one suffering from trauma, can easily start questioning her own experience. Under pressure, the facts and memories in her head can get muddled. Such prosecution can cause the victim to look unreliable, dishonest, or scheming - which is how a lot of sexual assault victims appear after a trial.

I haven't found any articles that look at the case from this perspective, but I think it is an important one to consider given that this case fits a general pattern of sexual assault cases. Some years ago I worked on an analysis of the adjudication of sexual assault trials in Canada, and the author presented an excellent argument demonstrating that biases against women in these trials were actually rooted in the Charter of Rights and Freedoms, which fails to provide women with substantive equality.

Also, it's important to consider that Ghomeshi was able to hire one of the best lawyers in the country.

Like Jenny, I think the prosecution may have not done its job well. She reiterated my thoughts well in stating:

I think it goes deeper than that too - the general miscarriage of justice that results from sexual and physical abuse being difficult to prove in court and the process being so difficult for victims. The worry of many, including me, is that this is a setback for other victims of violence who might now be less inclined to come forward, because why go through all that if there's little chance the accused will be convicted?

I think most agree that the judge did what he had to do in his ruling though, and the general feeling in the media coverage I've read, the discussion around town, a poll that was published a few days ago, is that the prosecution screwed up.

I think it's also important to consider why the victims changed certain details of their stories, and why no one brought forward the additional evidence before the defense team did. In the former, there are many reasons why details of a story can change, especially in a traumatic situation and over time. For the evidence "withheld," I don't think it's clear how that happened - did the women lie, or did they just not tell anyone? Did the police decide to leave some evidence out because it didn't support their case? Did the prosecution advise them to withhold, or did they think it wasn't relevant? Did their own lawyers advise them to hold the info?

As to why the women remained involved with Ghomeshi - well women do remain involved with abusers. Battered women on average leave their abuser 7 times before they are gone for good.

The article A Kinkster's Take on the Jian Ghomeshi Saga points out just one way in which bias can impact a sexual assault trial.

Ghomeshi's timing is everything: he's of course very media-savvy, because he is media. So he's well aware that if he creates a lens through which people should perceive things, that colours the conversation in his favour from go. (The "high-stakes" PR firm may be helping here, too.)

 

[Japanfan]

Found a good, long analysis of what went wrong at the trial in Macleans, a highly esteemed news magazine

http://www.macleans.ca/society/what-really-went-wrong-in-jian-ghomeshis-trial/

What no one anticipated was that the eight-day spectacle would illuminate the role of the complainants—and perhaps even their power— in determining the “reasonable doubt” required to convict in all criminal cases.

The problem lay not in what the witnesses did after the assault, but in what they told (and didn’t tell) police and the court about it. That message was delivered too late to benefit complainants in the Ghomeshi trial. But it could be seen as the beginning of a new awareness for many others.

 

[overedge]

I'm really getting tired of reading online that if you think the witnesses weren't good witnesses, that means you hate women, don't believe the witnesses, support rapists and abusers, etc.

I believe the women's stories of what Ghomeshi did to them. I also believe that the witnesses didn't provide a consistent enough story to meet the standard of "beyond a reasonable doubt".

I wonder why the prosecution didn't call an expert witness to testify about the fallability of memory and why the women might have decided to act the way they did after the assaults.

 

[Jenny]

@overedge it sounds like they were not prepared. They either didn't know about some or all of these details, or thought that the defense didn't (especially in the case of the victims contacting one another), or thought their case was strong enough and it wouldn't matter.

Had they anticipated questions about discrepancies in testimony, then they could have had the experts lined up to put them in context. (Although if they had, I'm sure the defense team could have come up with a few experts to support their side.) More importantly, they could have prepared the witnesses to answer the tougher questions.

I wonder too if the victims might have benefited from professional counselling as well - privately going through what happened to better understand their own feelings at the time, their actions and reactions, why they were coming forward now, etc. Perhaps when the time came to defend their actions publicly, they would have been better prepared to respond.

 

[agalisgv]

I wonder why the prosecution didn't call an expert witness to testify about the fallability of memory

If the prosecution had argued the memories of the victims aren't always reliable, then they would have lost any basis for prosecution since the entire case hinged on victim recollection.

 

[MacMadame]

I think an expert witness saying that keeping in touch afterwards is often part of processing what happened to you, as an example, might have helped.

IME, people have this idea of how a victim is supposed to behave and, when victims don't behave like that, they decide they can't be victims instead of re-evaluting their own ideas of how "real" victims behave.

 

[mag]

I think an expert witness saying that keeping in touch afterwards is often part of processing what happened to you, as an example, might have helped.

IME, people have this idea of how a victim is supposed to behave and, when victims don't behave like that, they decide they can't be victims instead of re-evaluting their own ideas of how "real" victims behave.

What I find interesting is that I have spoken to a number of people who talk about how we shouldn't make assumptions about how victims behave, but then in the next breath, they do exactly that. When I point out to them what they are doing, they immediately say I have misunderstood. Then they reiterate all again ending once again with how they think victims should behave. For the most part these are kind, intelligent, thoughtful people.

I had this discussion with my mom this afternoon. She is very liberal, intelligent, and all for equality for women. She was saying that it all comes down to how we raise our kids. That we have to teach our girls not to put up with this kind of behaviour. I pointed out that it might be a better idea to teach our boys to control their own behaviour. She agreed, but again came back to teaching girls and getting them to understand that the status of dating someone like Jian was not worth what they would have to put up with. That if someone hit her she would get away and never contact them again and that she would go to the police right away. Yet she didn't see this as putting her preconceived ideas around victim behaviour on to other people. I just couldn't get her to understand that it is not up to girls to be trained to do things to control boys. Boys need to take responsibility for themselves.

 

[Japanfan]

That we have to teach our girls not to put up with this kind of behaviour. I pointed out that it might be a better idea to teach our boys to control their own behaviour. She agreed, but again came back to teaching girls and getting them to understand that the status of dating someone like Jian was not worth what they would have to put up with. That if someone hit her she would get away and never contact them again and that she would go to the police right away. Yet she didn't see this as putting her preconceived ideas around victim behaviour on to other people. I just couldn't get her to understand that it is not up to girls to be trained to do things to control boys. Boys need to take responsibility for themselves.

I agree that parents need to teach boys about appropriate behaviour and teach them to take responsibliity for themselves. Though I'm uncomfortable with the focus on 'control', as it suggests that boys have an impulse to be abusive/violent. Maybe some boys do, but certainly not all.

It is also important to teach girls about what is appropriate behaviour, and particularly what consent means. When I was in high school back in the 70s, we were unfamiliar with the notion of consent. Date rape was common, but not identified as such.

 

[mag]

I agree that parents need to teach boys about appropriate behaviour and teach them to take responsibliity for themselves. Though I'm uncomfortable with the focus on 'control', as it suggests that boys have an impulse to be abusive/violent. Maybe some boys do, but certainly not all.

It is also important to teach girls about what is appropriate behaviour, and particularly what consent means. When I was in high school back in the 70s, we were unfamiliar with the notion of consent. Date rape was common, but not identified as such.

We all need to take responsibility and "control" our behaviour. We also need to learn that the only person responsible for our behaviour is ourself. I once had a teacher tell my daughter that girls shouldn't wear tank tops or short shorts to school because it made it difficult for the boys to concentrate and control their behaviour. I took that up with the principal and suggested to him that the way the boys behaved was totally up to them and that my daughter was certainly not responsible for controlling their behaviour! Part of becoming an adult is realizing that you can't always do what you want, that the world isn't all about you, and that you have choices in how you respond to things. The whole "but she made me so mad" defense is something that should never be allowed to go unchallenged.

As to the idea of consent, I think that it would be helpful if we turned the tables and put the onus on then accused to prove they had consent rather than insisting that the victim prove they didn't give consent.

 

[agalisgv]

As to the idea of consent, I think that it would be helpful if we turned the tables and put the onus on then accused to prove they had consent rather than insisting that the victim prove they didn't give consent.

It is never the burden of those accused to prove their innocence--it's the burden of the prosecution to prove guilt. That's what innocent until proven guilty means.

 

[mag]

It is never the burden of those accused to prove their innocence--it's the burden of the prosecution to prove guilt. That's what innocent until proven guilty means.

Yes, I know. I also understand why ... But sometimes it bugs me. (And the world is all about me, you know. . )

 

[Japanfan]

It is never the burden of those accused to prove their innocence--it's the burden of the prosecution to prove guilt. That's what innocent until proven guilty means.

Yes, but the system is not without flaws - just sayin', though I'm sure that everyone here is well aware of that.

 

[Jenny]

IME, people have this idea of how a victim is supposed to behave and, when victims don't behave like that, they decide they can't be victims instead of re-evaluting their own ideas of how "real" victims behave.

This has been a large part of the discussion, especially during the trial when much of the focus was on what the victims did afterwards.

And I agree with mag that many people - I've caught myself doing it - say we can't judge but then we proceed to put in the context of what we ourselves would do. I see this on FSU all the time - someone is trying to have a general discussion on an issue, but people can't resist offering their personal experiences and using them as a platform to make their points. It's natural though - ideas can be very hard to understand without making them tangible, and personal.

However, here's what I think is often missed: people say "I would feel this and do that" but the fact is, they might not. If we can accept that our own reactions can't always be predicted, then maybe we can better see the same effect in others.

As to the idea of consent, I think that it would be helpful if we turned the tables and put the onus on then accused to prove they had consent rather than insisting that the victim prove they didn't give consent.

It is never the burden of those accused to prove their innocence--it's the burden of the prosecution to prove guilt. That's what innocent until proven guilty means.

Anyone else watch Mansbridge's very interesting interview with Marie Henein last night? This was exactly her point.

 

[overedge]

@Jenny I watched the Mansbridge interview too, and I was struck by her comment that the prosecution is usually over-resourced in these high - profile cases. I would guess that funding cutbacks might mean that even an over-resourced case might not have enough resources to assemble a strong enough case.

And while generally I was impressed with what Heinen said, I didn't have a lot of sympathy for her saying we should think of the hard time Ghomeshi has had. If he didn't unexpectedly punch women and then try to pretend they let him know it was OK, and if he didn't exploit his celebrity to target potential victims and creep out women, then maybe he wouldn't be going through this awful time.

 

[Jenny]

I had similar thoughts @overedge - I do think she was trying to make the general point that going through a trial, no matter your role, is a big, big deal. I don't know if maybe she was trying to say "he may have made it through this trial, but that doesn't mean his life will ever be normal again" to make us feel better, or even "I get how hard this was on the witnesses," but I agree with you it was a bit in that it could be interpreted as you say.

For the resourcing comment, I thought at first she was saying they were under-resourced, which would have made sense. But then she said that high profile cases are over-resourced ... she did try to say that it meant that lower profile cases didn't get the attention (which is likely true) but I don't get what she meant by *this* case being over-resourced. It doesn't sound like the crown was (or maybe too many cooks in the kitchen type thing in her opinion led to them not doing a good job? Which she really can't say of course), or did she maybe mean she was? That as a legal professional she reflects on how much time and money was spent by Ghomeshi to defend himself and it's perhaps too much (from a philosophical perspective of course, because from a business perspective this was no doubt quite good for her)?

It was interesting that she was so adamantly supportive of the legal system. I was itching for Mansbridge to ask her if she'd be saying the same thing had she lost the case. She would have to, but it would have been interesting to see how she said it.

 

[overedge]

After the trial I am even more thankful for Patrick Chan's actions here:
https://www.youtube.com/watch?v=9KmDLvkcjgg

 

[Xela M]

After the trial I am even more thankful for Patrick Chan's actions here:
https://www.youtube.com/watch?v=9KmDLvkcjgg

What did he do?

 

[overedge]

He saw how Ghomeshi was trying to get Tessa to go out with him, and non-verbally warned her not to do it.

 

[algonquin]

He saw how Ghomeshi was trying to get Tessa to go out with him, and non-verbally warned her not to do it.

Patrick looked very uncomfortable the moment that Jian walked up to them. Patrick takes a lot of heat for his overly honest answers, but in this situations, his honest reaction served him and his friend, Tessa, well.

 

[antmanb]

While reading the judge's decision, I was struck by how much of the victims' evidence was "disproven" (in the eyes of the judge) by "evidence" from the hundreds of emails that Ghomeshi kept over the years.

Since Ghomeshi stayed off the stand, no one was able to question him or his defence on why he had kept such a meticulous record of evidence in the first place. I know the judge could not have commented on this matter because the emails were one of the only pieces of actual hard evidence in the trial, but to use them to pick apart the victims' statements seems extra-harsh when there is clearly (without factual evidence to make it "official") something shady about the fact that he had saved years of emails from women he casually dated.

To be fair, and I really don't want to be fair to this man, I have a gmail account, and every email I have ever sent or received from that email account is there for the last ten years and is very easy to search. I read my emails on my iphone (which for some reason has an option to archive but not delete without going through extra steps) and they are not deleted from the gmail account. Simply having emails means absolutely nothing.

 

[susan6]

Some comments about how the next trial might go. Apparently the victim in this one is less problematic, but it still might be a long shot.

http://www.slate.com/blogs/xx_facto...exual_assault_trial_may_have_same_result.html