The controversial sexual assault case against Jian Ghomeshi is set to reach a verdict on March 24. Regardless of the result, what can society learn from the case?
Let’s break down the basics. Three complainants have testified against Ghomeshi on allegations of sexual assault. An additional woman provided further documentation during the trial in support of one complainant.
One complainant testified that Ghomeshi punched her in the head and pulled her hair during their relationship. Actress Lucy DeCoutere said that Ghomeshi slapped her without warning and strangled her after a date. Another complainant reported that Ghomeshi unexpectedly grabbed her throat and covered her mouth in a Toronto park.
Prior to the trial, Ghomeshi posted a lengthy Facebook status admitting to consensual “rough sex” with an unspecified ex-girlfriend who, he wrote, was set on “vengeance and demonization” by bringing the story forward.
Sexual assault cases oftentimes end up as one person’s word against another. The judge in Ghomeshi’s case has the difficult task of deciding a verdict based on the credibility and reliability of the complainants — basically sifting through the perceived legitimacy of their memories.
“The prosecution has to provide enough evidence to convince a court or jury or judge that the consent wasn’t given,” says UVic School of Public Health and Social Policy Professor Charlotte Loppie.
One central complication in the case is the length of time it took for the complainants to come forward, since the alleged events occurred between 2002 and 2003. Loppie explained that this behavior is not uncommon of sexual assault victims and that some people don’t immediately realize they’ve been sexually assaulted. “Only about 6 per cent of all sexual assaults [of women] ever get reported,” she said, while the figures are even lower for men.
“I will sometimes get students, male and female . . . coming to me quite upset and saying [they] didn’t realize . . . what happened to [them] was sexual assault,” says Loppie.
A complex digital trail of evidence also follows the Ghomeshi case, including an affectionate letter from DeCourtere to Ghomeshi, written a short time after the alleged assault. One complainant also sent Ghomeshi a photo of herself in a bikini after the alleged events. While this might complicate the narrative, such behaviour is quite common amongst victims of abuse.
“You can care about somebody who abuses you,” says Loppie. “Unfortunately . . . legally, [the letters] will have some weight in terms of the perception of whether the assault has happened.”
The Ghomeshi case is just one part of an important sociological conversation around gender inequality in the eyes of the law. UVic Law Professor Maneesah Deckha stresses that there are problems with the law system as a whole.
“Feminists would point to the dominant masculinity and otherwise elite practices [and] privileges built systemically into liberal legal norms that oppress and marginalize non-dominant others,” Deckha says. “Law espouses norms that model socially dominant norms.”
Ghomeshi’s lawyer, Marie Henein, has been criticized for the way she cross-examined the witnesses, but Deckha says this is not new.
Deckha explains that “whacking” is an aggressive defense counsel cross-examination practice typically used with sexual assault complainants. The practice “leaves no stone unturned,” and is a “highly gendered practice that feminists and critical scholars have identified as problematic not just from a social justice perspective, but from a professional ethics one.”
“Calls to stop this type of cross-examination are increasing and the issue is getting more attention in the legal community,” says Deckha.
Despite the criticisms, the trial proceeded as normal and we’ll know soon enough how the judge will rule. And though it may not be the legal watershed moment that some are hoping for, Ghomeshi’s case is undoubtedly raising some necessary questions about the perception of sexual assault in the media. Regardless of the verdict, those questions are worth answering.
