When three women came forward in the fall of 2014 to press criminal charges against Jian Ghomeshi for sexual assault, many of us cheered them on. More than a dozen women, both on and off the record, had already described a pattern of odious behaviour over many years – alleged incidents of punching, slapping, choking, and hair-pulling that came out of the blue and were not consensual. It was past time for a reckoning. It was past time to send a signal to all abusers: We won't take this any more.
Everybody knew a guilty verdict was far from sure. The bar for a criminal conviction is, as it should be, high. But nobody, not even the most experienced court-watchers, could have predicted how this trial would go. It has turned into a fiasco. The most high-profile witness – actress Lucy DeCoutere, who agreed to waive her anonymity – suffered a devastating blow to her credibility because she'd never told anyone involved in the case that she had pursued a relationship with Mr. Ghomeshi after he had allegedly assaulted her. Witness Number Three also left a few things out – such as the fact that she, too, had had a date and sexual encounter after the alleged assault. The first time these witnesses mentioned these details to the Crown and the police (and perhaps their own lawyer) was just before they took the stand.
Witness Number One didn't do too well either. She had a hard time explaining why she'd sent e-mails and a bikini photo to a man who'd allegedly just attacked her.
Whatever happened to them, not one of Mr. Ghomeshi's accusers behaved like people who'd been attacked. Instead, they sent him sexy pictures and flowers and e-mails that ranged from coy flirtations to blunt sexual propositions. A few days after she says she was choked and slapped, Ms. DeCoutere sent him a six-page handwritten love letter that concluded, "I love your hands."
Why does this matter? After all, as Ms. DeCoutere's lawyer, Gillian Hnatiw, was quick to remind us, "Violence against women is not about the behaviour of the woman … It's not about whether [victims of violence] see their abusers again or send flowers, any more than it is about what they wear or how much they had to drink."
She's right – to a point. What happened after their encounter doesn't change what happened during it. And (to me, at least) the women's allegations have the ring of truth. But a criminal conviction needs more than that. It needs witnesses who are consistent, credible and open. And Ms. DeCoutere, for one, was not. She testified that her relationship with Mr. Ghomeshi after that night was distant and professional. Yet the evidence depicts a lovesick fan, pursuing a man who was no longer interested in her. When confronted with her e-mails and the letter, she said she couldn't remember writing them. She said that when she told Mr. Ghomeshi she wanted to fuck his brains out, she didn't mean it.
Why didn't she and Witness Number Three disclose these awkward details beforehand? Maybe they were embarrassed. Or they forgot. Or they thought no one would find out. Whatever the case, they appear to have evaded the whole truth because the whole truth made them look bad. Or perhaps nobody involved in preparing them for trial had asked them to disclose all the awkward bits – in which case they should be fired for negligence. In any event, by the end of Monday's proceedings, Marie Henein, Mr. Ghomeshi's defence lawyer, had demolished the first two witnesses and had started in on Number Three. I felt sorry for them.
I know the dynamics of abuse can be complex. I know that women can both love and fear their abusers. But these women were not battered wives. They were not in relationships with Mr. Ghomeshi. They barely knew him. They had no reason to fear him, and he had no power over them at all – except the power of his charm and celebrity. They could have walked away. They didn't.
And all that's left is their word about unpleasant encounters that may or may not rise to the standard of criminal assault.
From the start, this case has evoked powerful emotions. Many of us hoped Mr. Ghomeshi's accusers would prevail, and that they would help give voice to the many silent victims of sexual assault who have never been heard. If the case collapses – as seems increasingly likely – lots of people will be outraged, and will want to know why. And other people will wonder if there ever really was a case at all.