Victims often on trial in sexual assault cases

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In late March, Justice William Horkins found Canadian radio personality Jian Ghomeshi not guilty of all charges.

Ghomeshi was on trial for one charge of choking to overcome resistance and four charges of sexual assault, after allegedly choking three women on separate occasions in 2002-2003. Horkins found him not guilty because the prosecution did not establish proof beyond a reasonable doubt.

Upon hearing the verdict of the eight-day trial, the Internet exploded with rage. Many blamed Ghomeshi, his lawyer Marie Henein, Horkins and/or the justice system for the undesired verdict. #IBelieveSurvivors started trending, and topless protestors began showing up at the Toronto courthouse.

The Canadian Justice system is built on the principle of innocent until proven otherwise. But in cases of sexual assault, especially high profile ones, it is very easy for the public to automatically assume otherwise. Of course the scumbag did it, and he/she must have rigged the trial if they are found not guilty.

But whatever your thoughts are on the former CBC star, there was still a miscarriage of justice. But Horkins, Henein or Ghomeshi did not execute it; it came from a much more frightening source: the prosecutor, Michael Callaghan.

In a nutshell, each complainant went on the stand and told how Ghomeshi choked them. Then the defence began questioning them and picking apart their story. If it was non-consensual, why did you email/send him bikini pictures/stay friends/talk to him/become intimate with him afterwards? Each time their story changed a bit, the defence jumped on it, making the complainants accounts seem more unreliable each day. Ghomeshi did not need to speak a word in his defence; instead the complainants went on trial.

But what was Callaghan doing during this?

During all the news coverage of the trial, there was barely a peep from the prosecution as Henein took apart their case. He had three women who were involved in a relationship with Ghomeshi taking the stand, all who had alleged that Ghomeshi had choked them during a somewhat intimate act, and they were, for all appearances, making the crown’s entire case that Ghomeshi did do this. In cases like these, we expect the crown to do their due diligence and prepare for anything. Instead, we watched in morbid fascination as the case fell apart, and three key things stood out after the initial shock of the verdict subsided.

First of all, it was like the women were never properly questioned. Memories are tricky things, and sometimes when you think about something, you remember another detail or forget something else. Did the prosecution only interview them a couple of times and left them alone until the trial date? Did they even do research to make sure nothing in their stories could break under cross-examination?

Then there was the cross-examination. Did no prep work go into making sure that their version of events stood up to the will of the defence? Because if they had, then something would have come out, like the bikini photo, and they could have prepared for it.

Finally, where were the expert witnesses? The ones that are experts in sexual assault trauma and physiology, who could explain why these women stayed in contact with Ghomeshi and sent him emails in the wee hours of the morning. And for that matter, where was the expert on memories, who could perhaps tell the court why it isn’t feasible for someone to remember emails sent a few years back?

Callaghan must have known that Ghomeshi would have got a dream team to defend him. He must have realized having only the victims testify would lead to problems, if and when the defence found the slightest bit of a crack in their testimony. The verdict went in the direction it did because by the end of it, the victims’ credibility came under question.

It is a tactic that unfortunately is textbook in sexual assault trials where the alleged victims are put on trial as much as the alleged perpetrator. Simply having a sexual past can imply consent no matter how far a sexual act goes. It is perhaps with this extra layer of scrutiny that victims of sexual assault do not come forward. According to YWCA Canada, of every 1,000 sexual assaults that occur in Canada, only 33 are reported to police, in which six are prosecuted, which leads to three convictions.

According to sexassault.ca, one in four North American women will be sexually assaulted during their lifetime. Only two to four per cent of all sexual assaults reported are false reports.

Defence lawyers have been quick to say the case did not fall apart because of the crown, that the prosecutor did his job correctly and it was the women’s fault for withholding information. But still the question remains, of why the case was built on just their testimonies, given how it is well known the secondary victimization of women in sexual assault trials? The case was doomed since the first day of the trial.

No one is saying that these women lied about what happened, but it came down to the issue of consent.

Callaghan has a couple of weeks left to appeal the verdict, and if he decides to go for it and is granted an appeal, hopefully he will do a better job the second time around.

But also on a larger scale, with the way sexual assault trials are handled, it goes to show why victims are so scared to come forward in the first place.

Ghomeshi isn’t off free yet though; he faces another trial in June, where the victim alleges that they only had a professional relationship, she had made complaints to her workplace and there were witnesses. So in the meantime, lets hope that in June, the prosecution will have a much better case before the court.
There still seems to be that double standard lingering in North America culture of what constitutes a sexually empowered male and female.

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