Carissima Mathen is associate professor of law at the University of Ottawa and a former constitutional litigator.
The decision, by Ontario Justice William Horkins, to acquit former CBC host Jian Ghomeshi of sexual assault has spawned equal parts outrage and approval. Outrage, if one thinks that the trial confirmed the law's worst tendencies with respect to women who dare make allegations of sexual assault. Approval, if one concludes that the damaging cross-examinations of the three complainants left the judge with little choice.
Much of the negative commentary surrounding the case is rooted in agonized questions about sexual assault. Why has sexual assault remained so stubbornly resistant to reporting, prosecution and conviction?
In criticizing the rough ride experienced by the complainants, some have singled out for blame core principles of the criminal justice system. This is unfortunate. The judge's decision rested on the presumption of innocence – the toughest standard known to law. Certainly, the proceedings cast into stark relief the advantages afforded to any accused person: the freedom to testify, or not; disclosure of all evidence in the Crown's possession; and the power to withhold or release evidence at will. In a case where many persons are convinced that something untoward had occurred, such features are perceived as part of the problem, rather than essential to the process.
The frustration is understandable. Sexual assault law has been stained by sexist myths, unsupportable evidentiary rules, and skepticism of women's basic truthfulness. Owing largely to the efforts of feminist advocates, Canadian law has formally shed itself of many of those deficiencies. Yet, translating rules into effective enforcement has proved damnably difficult. Every so often, a notorious case reminds us that judges can fail, badly, or that some defence counsel continue to engage in reprehensible tactics.
That having been said, any notoriety surrounding the trial and decision cannot be attributed to faulty application of the law. While defence lawyer Marie Henein employed her cross-examination skills to devastating effect, she did not "whack" the complainants. She properly used the prior inconsistencies in the complainants' recounting of events to raise a reasonable doubt.
To be sure, some have objected to the relevance of those inconsistencies, particularly where the complainants did not disclose (or forgot about) subsequent contact with Mr. Ghomeshi. It is not uncommon for victims to engage in such contact or to forget precise details of it. And in truth, some of the cross-examination, and certain comments in the verdict, did appear to invoke an entirely artificial "normal" response to sexual assault.
Were arguments about how the perfect complainant ought to behave the primary basis on which the trial judge formed his conclusions, the verdict would be wrong. But, Justice Horkins noted that a candid explanation of things like subsequent contact, and even prior inconsistent statements about them, are not necessarily fatal. What proved fatal was that the various inconsistencies contradicted elements of the complainants' testimony in chief, only came to light under cross-examination, and were met with implausible explanations.
The Ghomeshi trial did not proceed as many, myself included, expected it to. Even among sexual assault trials, with their laser-like focus on credibility, the nature and extent of the conflicting information presented in this case was unusual. It would be a mistake to view the trial as emblematic of everything that remains wrong with sexual assault and the criminal justice system. Instead, the interest in and the empathy demonstrated for the complainants must be harnessed into greater resources for those who are sexually violated, better legal education, and tools to wage the necessary fight against sexual assault as a social and cultural, not just legal, problem.