The moment the judge issued his not-guilty verdict in the Jian Ghomeshi case last week, the wailing and gnashing of teeth began. A public opinion poll found that most Torontonians (especially women) thought he should have been convicted. Many people said their faith in the justice system had been shaken.
The case has been so polarizing that some people can't discuss it with their friends. "I agree with the verdict but I have to keep my opinion to myself," one woman told me. Others who spoke up have been promptly unfriended. Being outraged about the Ghomeshi case is a way of signalling your general outrage about the justice system, which, we're told, is grotesquely unfair to sexual assault victims.
All this outrage is a tribute to the #IBelieveSurvivors lobby, which has been extremely successful at spreading its message that victims are not believed, that witnesses are held to impossible standards and that men get away with it just as they always have. Its loaded language has elevated sexual assault to the level of wars and natural disasters.
Yet, according to many people who work in the system, this picture is basically untrue. The facts may surprise you. They certainly surprised me. Here is what I've learned.
1. Police almost always lay a charge when a woman complains of sexual assault, especially in Toronto and other large cities, lawyers told me. The consequences aren't trivial. The alleged abuser may be arrested. He may spend a night in jail awaiting bail. He will be forbidden to have any contact with the complainant. He may have to move out from a shared residence.
2. False allegations are not rare. "Sadly, they happen all the time" says defence lawyer Kathryn Wells. "It may be revenge, jealousy, payback for cheating, any number of things. Men lie, too." In no area of life are we expected to believe some people, unconditionally. There's no reason why sexual assault should be an exception.
3. The conviction rate for sexual assault cases is relatively high. In 2013-14, the latest year reported by Statistics Canada, 3,002 cases of sexual assault were presented to courts across Canada. In many cases, charges were withdrawn or stayed (typically because the Crown did not believe there was enough evidence to convict). Of the 1,626 cases that resulted in a judicial decision, there were 1,357 guilty verdicts and 269 acquittals.
4. The range of behaviour covered by the legal term "sexual assault" is extremely wide. It includes anything from a poke on the buttocks, to rape at knife point.
Because of the massive publicity and inflated rhetoric that surrounded the Ghomeshi case, many people are likely under the impression that the allegations were far more serious than they were. Choking, punching, slapping and hair pulling are all criminal offences, to be sure. But the alleged assaults were of short duration and did not result in injuries. When they learned the details of the allegations, several people I spoke with wondered why the case had gone to trial at all.
5. Nobody expects a victim of a violent crime to be a perfect witness. That is not the standard that is expected in court. The courts make allowance for minor errors and inconsistencies in recollection. It is also by now widely accepted that women in abusive, long-term relationships have a very hard time leaving. But the courts are not obliged to abandon common sense. If a woman says she was assaulted by a man she had just met, it is legitimate to ask why she kept pursuing him even though she claims she never wanted to see him again.
6. Alternatives to the current judicial process aren't so easy to come up with. Some people advocate a non-adversarial approach – perhaps something like a sentencing circle, which would allow an abuser to acknowledge the wrong he or she has done. That's all very well, but it only works when both parties agree to it, and when the accused person is willing to admit to what he did and knows he won't face further penalties.
It is also worth remembering that in criminal cases, there are asymmetrical consequences for complainants and defendants. If the complainant loses, life goes on. If the defendant loses, he stands to lose his liberty, his job, his reputation and much else. That's why the standard of proof is so high. In high-profile cases, a defendant is likely to lose a lot even if he wins.
7. The justice system isn't good at therapy. It can't shelter complainants from the rough-and-tumble of the adversarial process. It can't make their pain go away.
It isn't perfect. But it can, quite often, deliver justice – despite what the hashtag warriors want you to believe.