Jian Ghomeshi’s sexual assault trial fuels debate over defence's tactics

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As Jian Ghomeshi's trial for sexual assault continues this week, the bruising style of his lawyer has fed an ongoing debate in Canadian legal circles about the responsibilities and risks facing those who defend alleged abusers in court.

Mr. Ghomeshi's trial is the latest in a series of high-profile sex-crime cases across North America that have galvanized a discussion in the legal community and beyond about how to reconcile justice for victims without trampling the procedural rights of the accused.

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Everyone agrees the stakes are high. On the one hand, many defence lawyers fear that excessive concern for the feelings of witnesses could erode the high standard of proof required in criminal cases and undermine the presumption of innocence. Other legal scholars say there's a need for new norms in defence law, to reduce the prevalence of gender stereotypes and legal tactics that can traumatize accusers and perhaps discourage women from reporting rape in the future – broadly known as "whacking" the complainant.

Until recently, such aggression from defence counsel was tolerated and even encouraged. In a 2015 paper titled " 'Whack' No More," University of Windsor law professor David Tanovich writes that in 1988, defence lawyers in Ottawa were told that "you've got to attack the complainant with all you've got so that he or she will say, 'I'm not coming back in front of 12 good citizens to repeat this bullshit story that I've just told the judge.' "

But Prof. Tanovich says that punishing style of examining witnesses is still common, despite formal protections for sexual-assault complainants, including a presumptive ban on introducing an accuser's sexual history as evidence.

While he thinks better data collection on the prevalence of abusive tactics is needed, he says his research has turned up 21 cases in 2014 and 2015 that fit his definition of whacking a witness in Canadian sexual-assault trials.

"There are so many loopholes," he said in an interview Wednesday. "The ground rules are clear. … The question is whether the ground rules are being respected."

A widely circulated video shows Marie Henein, now Mr. Ghomeshi's lawyer, discussing one such loophole. Taken at a 1998 Law Society of Upper Canada seminar, the footage shows her recommending ways to get around the prohibition on introducing sexual history as evidence.

"Sometimes you bring the application, especially in front of a judge-alone trial to introduce all this otherwise inadmissible evidence and if it's excluded, well, oh, well, the judge has heard it," she says in the video, to scandalized laughter from the audience.

"No, no," she continues. "I'm absolutely confident that the judge will be able to disabuse his or her mind of the fact that she has a very extensive and lewd prior sexual history."

Prof. Tanovich said that pernicious stereotypes about women and how they respond to sexual assault also remain prevalent in the court system, including the notion that consent is implied if the man and woman are in a relationship, and that women who have been raped will report the incident promptly.

Elaine Craig, an assistant professor at Dalhousie's Schulich School of Law in Halifax, said that another problem for women alleging sexual assault is that judges and defence lawyers often expect "an unrealistic level of consistency" from complainants, picking up on "minute inconsistencies" between what they told the nurse, the police, the Crown and so on.

"Of course there are going to be inconsistencies between whether they had three beer or five beer," she said.

Prof. Craig recently completed a study on attitudes towards sexual-assault cases among criminal lawyers. She said that the profession is split, and that indeed many lawyers themselves are torn, on a subject that often forces them to choose between professional obligation and human compassion for someone claiming a traumatic experience.

"I think defence lawyers understandably continue to struggle with the limits of the duty to mount a vigorous defence, and where those limits lie," she said. "Some lawyers will tell you that whacking the complainant is the practice of a good lawyer, other lawyers will say that's unacceptable … Some lawyers will say it's fine to seek counselling records in order to intimidate them, and others will say they would never do that."

In some cases, the two camps seem to be talking past each other. Most lawyers agree that defence counsel has an obligation to vigorously defend their client, however unsavoury the allegations, and also that sexual-assault cases present an unusual or even unique set of sensitivities to navigate.

Still, sharp disagreements remain. Breese Davies, vice-president of the Criminal Lawyers' Association, wrote in a Toronto Star op-ed this week that it was a "myth" that "defence lawyers routinely, and as a matter of strategy, bully, abuse or attack complainants during cross-examination."

In an interview Wednesday, Ms. Davies added that judges usually intervene if a lawyer is probing areas in a cross-examination, such as sexual history, that are off-limits. "Judges don't let us abuse people," she said.

Ms. Davies also argued that because of the intimate, uncomfortable nature of sexual-assault allegations, hurt feelings or even trauma are sometimes inevitable for complainants who take the stand – and that because those cases almost always turn on questions of credibility, accusers are generally required to testify.

"Even if I do it in a sensitive way, in a compassionate way," she said, cross-examination is bound to be unpleasant. "Because they're still being asked to talk about their sex lives in a public environment, and something that was traumatic to them. We can't change that."

Feminist lawyers face a special tension in sexual-assault cases, Ms. Davies added. "I'm a feminist, and so I understand, and I want women to be empowered, I want women to be respected, I want equality – I'm a very adamant feminist," she said. "And there's a question within the defence bar about what it means to do sexual-assault cases and to be a feminist."

But Ms. Davies insisted that her professional duties are paramount in the courtroom.

"We don't give a free pass to any witness," she said. "And just because it's about sex doesn't mean we change the ground rules."

Editor's note: An earlier version of this story said 15 years ago, defence lawyers in Ottawa were told that "you've got to attack the complainant with all you've got so that he or she will say, 'I'm not coming back in front of 12 good citizens to repeat this bullshit story that I've just told the judge.' " The story has been corrected to indicate the quote was from 1988.