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Former CBC radio host Jian Ghomeshi leaves a Toronto courthouse with his lawyer Marie Henein, right, following day six of his trial on Tuesday, Feb. 9, 2016. THE CANADIAN PRESS/Chris Young
Former CBC radio host Jian Ghomeshi leaves a Toronto courthouse with his lawyer Marie Henein, right, following day six of his trial on Tuesday, Feb. 9, 2016. THE CANADIAN PRESS/Chris Young

Dale and Cross

Can the Ghomeshi trial lead to change? Add to ...

Amanda Dale is executive director, Barbra Schlifer Commemorative Clinic. Pamela Cross is legal director, Luke’s Place Support and Resource Centre for Women.

Thursday’s verdict of not guilty on all charges in the the trial of Jian Ghomeshi was no surprise to anyone. But in reaching acquittal, Justice William Horkins waded further into the controversies outside the courtroom than strictly necessary for his legal finding.

In particular, the Judge reassures us that he has a “firm understanding” that human behavior can be “variable and unpredictable” and that he must “guard against applying false stereotypes concerning the expected conduct of complainants.” But, he goes on to warn that we must be “vigilant” in “avoiding the equally false assumption that sexual assault complainants are always truthful”.

These are troubling words.

The institutional shadow cast by the false stereotypes about claimants is in no way equivalent in influence to the raw call to believe sexual assault survivors coming from outside the courtroom.

The statistical reality of this crime paints a clear picture: Survivors of sexual assault fear disbelief both within and outside the courtroom, and are reluctant to come forward at all, with or without full disclosure, because the starting position of all who sit in judgment of their responses and actions is that their allegations are false. So much so that 98 per cent of them do not choose to report sexual assault to the police.

Factually, there are no more false allegations for this crime than any other. Factually, the crime of sexual assault, despite much vaunted procedural protections, has a conviction rate so abysmally low that it reaches the threshold of impunity.

For those of us who work with women who have been sexually assaulted, the wording of the Ghomeshi decision reveals the significant gap between women’s realities and how their behaviour is judged.

We do not take issue with the court’s determination that based on the evidence before it, the Crown had not proven the alleged sexual assaults beyond a reasonable doubt. Yet the court goes on to say that the complainants engaged in conduct with Mr. Ghomeshi “which seems out of harmony with the assaultive behavior ascribed to him.”

Out of harmony to whom? To someone who has never been sexually assaulted? Or to someone who has?

In our experience of providing both legal and counselling support to women, it is typical for women to initially respond to violence in dating or spousal relationships by denying, minimizing, or attempting to care for the abuser. They want to bring back the nice guy, to appease, to be friendly, or to otherwise continue whatever pre-existing “normal” dynamic there was between them.

If you haven’t been raped, this might be difficult to understand. Women are still fundamentally socialized to wonder, “Was this my fault?” and “Can I fix this?” In our practice, it would be absolutely typical for a woman who had been choked to write a loving letter about the abuser’s hands that had choked her.

In the end, this may be the ugly underbelly of what it takes to become a woman, in the famous words of Simone de Beauvoir. Because of the spectacle of the Ghomeshi trial, these daily realities, and the ways our society and its institutions take part in them, are now part of dinner conversation across Canada. This at least is a good thing.

If these conversations can help us to change the normalization of sexual violence as a part of womanhood, and use the groundswell of dissatisfaction with the legal process to bring in some real reforms, this will all have been for the good.

Otherwise, it will be business as usual.

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