Women's advocates had long expected a not guilty verdict in the sexual assault trial of former CBC host Jian Ghomeshi. What they weren't prepared for was the substance of Ontario Court Justice William Horkins's 26-page ruling, including language that critics believe will further discourage women from reporting sexual assaults.
Women's counsellors at sexual assault centres argued that numerous points in Justice Horkins's decision echoed rape myths and victim blaming, and they worry that it will cast a pall over victims coming forward in future.
"Many of us within the sector were braced for acquittal. For me what was most disheartening was the way the rape mythology played out in the language," said Lenore Lukasik-Foss, chair of the Ontario Coalition of Rape Crisis Centres. "I think this is going to have a chill effect."
Amanda Dale, executive director of the Barbra Schlifer Commemorative Clinic, said, "The judge went further than he needed to just to acquit. The language was very shaming."
While Justice Horkins noted the general importance of not judging abuse victims' behaviour based on "stereotypical models," he then described the behaviour of the first witness – who sent Ghomeshi a photograph of herself in a bikini after the alleged assault – as "odd." He decided all three of the complainants "engaged in conduct... after the fact, which seems out of harmony with the assaultive behaviour ascribed to" Mr. Ghomeshi.
It was a point victims' advocates disputed adamantly, arguing that victims have varied and complex reactions to violence, many of which seem "out of harmony" with the violence inflicted on them. That can include maintaining contact with abusers.
"This gets at the heart of how a sexual assault victim generally behaves, in our experience," said Dale. "Associating with the assaulter and establishing contact – none of these things are inconsistent with the assault having taken place. They are a normal part of the continuum," for some victims, she said.
Jaclyn Friedman, author of Yes Means Yes: Visions of Female Sexual Power and a World Without Rape, said the judge's remarks will dissuade victims who have maintained contact with their abusers afterward from reporting a crime.
"Any victim who, for whatever valid reason, showed a rapist any kindness after the assault has now been definitively informed that it will be held against them in court. It's hard to see how this doesn't discourage victims from coming forward."
Lukasik-Foss pointed to other troubling points for victims in the judge's ruling, which he read aloud in court for just over an hour on Thursday morning. First was the judge's observation that all three complainants had brief relationships with Ghomeshi that "ended badly."
"You get that classic trope of the jilted ex who lies about sexual assault. I'm not sure how that's relevant except to say that there's an air of revenge, which is too common a dialogue in the way that we discount survivors' experiences and credibility," said Lukasik-Foss.
Next, she said that the judge carted out the stereotype of the fame-seeking victim. Judge Horkins wrote, "Each complainant was aware of Mr. Ghomeshi and his celebrity status prior to meeting him. Each was a fan to some greater or lesser extent."
Judge Horkins noted that the second complainant Lucy DeCoutere "gave 19 media interviews and received massive attention for her role in this case," and that she grew "excited" when actress Mia Farrow tweeted her support, echoing the defence's cross-examination.
"This is the whole notion again of fame-seeking women," said Lukasik-Foss. "We saw this play out with [Bill] Cosby too. With high-profile cases often the kneejerk reaction is that people are either seeking money, fame or both."
For those who work with victims, possibly the most contentious of Judge Horkins' assertions was that, just as dangerous as a court that holds outmoded stereotypes, is the "false assumption that sexual assault complainants are always truthful."
His suggestion that there exists a cultural myth that women alleging sexual violence always tell the truth – and that this myth should be busted in court – yielded a howl from advocates, since victims are still routinely doubted. While a handful of protesters outside the Toronto courtroom advocated under the banner #IBelieveSurvivors on Thursday, such feminist attitudes have hardly permeated the justice system, said Dale.
"The belief of victims is a very tenuous phenomenon that is not represented in any of the institutional settings that we're bringing these claims to. The assumption that women are telling the truth is really only an assumption between and among women. It doesn't have equal institutional power."
She added: "That one was horrifying. I have a terrible feeling about the damage that one is going to do for us. It has the potential to set us back substantially."
Still, advocates saw some good emerge for sexual assault survivors from this case. Rape crisis centres have seen a spike in disclosures since Ghomeshi's case went public in late 2014, with women encouraged to talk more publically about their experiences. Both Dale and Lukasik-Foss saw an increase in calls, with many callers referencing Ghomeshi's court case.
The case has also shone a clearer light on the legal process. As journalists live-tweeted the trial in real time, sexual assault victims got a taste of what to expect if they decide to report: "It really opens up the level of scrutiny that a claimant is being forced to submit to when entering the formal system," said Dale, noting that her clients often refer to their trials as "a second rape."
Advocates believe that this trial sparked a broader public conversation about reforming the way sexual assault is dealt with in the legal sphere – from civil suits to claimants getting separate standing in court and the ability to call and cross-examine defendants.
And the allegations against Ghomeshi and Bill Cosby – and subsequent international debate – have already yielded some change: under Ontario Premier Kathleen Wynne's "It's Never Okay" campaign to combat violence against women, sexual assault survivors will now get free legal advice in Ontario – a first in the country.
"The outrage that has erupted, if harnessed, could give us some impetus for change," said Dale. "That gives me hope that there will be a constructive conversation outside law which will ultimately influence law."
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