After Ghomeshi

Wednesday, March 30, 2016

This is the first of nine blog posts tracking feminist reaction to the Ghomeshi verdict. They are based on a panel held yesterday, March 29th, 2016, at the University of Ottawa Faculty of Law.



A case of she said, she said, she said


The judge said:  “My conclusion that the evidence in this case raises a reasonable doubt is not the same as deciding in any positive way that these events never happened. “

She said:

charming and charismatic
smitten
PLAY
sweet and humble
funny, intelligent, charming and nice
Love Bug not a Hummer
softness, kindness, safe
flirting, kissing

hair grabbed and yanked “really, really hard”
“what have I gotten into here?”
painful
do you like it like that?

confusing
unsure what to think
doesn’t know his own strength?
really intended to hurt?

uneventful
flirting
pub
at his home
music playing
drink, charming

“out of the blue”

hair pulled
head punched
pulled to her knees
like walking into a pole
fear of passing out

rage gone
“you should go”
thrown out like trash

never considered calling the police
who would listen?

BUT:

didn’t consistently mention kissing in all reports
hair extensions or not?
head smashed against the window or not?
thrown to the ground or pulled to the ground?
yoga moves or not?
and no Love Bug at the time
failed to disclose her after-the-fact conduct
flirtatious emails, bikini shot, watching Play – traumatized or not?

The judge said:  “The expectation of how a victim of abuse will, or should, be expected to behave must not be assessed on the basis of stereotypical models”.  [However, her behaviour is]“at the very least, odd”.   

Verdict:  not reliable.

Next, she said:

Banff Film Festival
playful, flirtatious, fun to be with
dinner, conversation
wanted to “just hold her”
“cheesy” and a “put on”
awkward attempt at a kiss
house tour, organized, well kept
a kiss

hand on the throat, pushed against the wall, choking, slapping
shocked, surprised, bewildered
act calm
as if nothing happened

listening to music
playing his guitar
a kiss good night

a mistake?  a one off event?

more socializing
moody but not violent

Gemini awards
touched her neck
a reminder?

didn’t report 
thought it wasn’t serious enough
she wasn’t “beaten to pieces … broken and raped”
came forward when police asked

BUT:

awkward attempt at a kiss or not?
late disclosure of love letter, sending flowers, karaoke, proposition
choking and then slapping or vice versa or push, slap, slap, pause, slap?

The judge said:  “It is difficult for me to believe that someone who was choked as part of a sexual assault, would consider kissing sessions with the assailant both before and after the assault not worth mentioning when reporting the matter to the police. I can understand being reluctant to mention it, but I do not understand her thinking that it was not relevant.” 

The judge said:  Sending flowers is “an odd behaviour” if a man has just choked you.

The judge said:  “I acknowledge that the Court must guard against assuming that seemingly odd reactive behaviour of a complainant necessarily indicates fabrication. However, this is an illustration of the witness’s actual behaviour, evidenced by her own written expressions.”

The judge said:  “It may be entirely natural for a victim of abuse to become involved in an advocacy group. However, the manner in which Ms. DeCoutere embraced and cultivated her role as an advocate for the cause of victims of sexual violence may explain some of her questionable conduct as a witness in these proceedings.” 

Verdict:  not reliable.

And finally, she said:

“making out” on a park bench
neck squeeze, hands, teeth, uncomfortable, hard to breathe
nothing said
imprecise description, still “trying to figure it out”
came forward later in response to police request

BUT:

claimed not to have discussed with other complainant, but 5000 emails
wanted to “sink the prick” – revenge or “legitimate feelings of victims of abuse”?
late disclosure of her after-the-fact conduct
said she kept her distance, but later admitted “messing around” with him in her home, emailing him to go for a drink

The judge said:  “Playing chicken [with the justice system.  Hoping to get by with] half truths.”

Verdict:  not reliable.

presumption of innocence … fundamental right of every accused
proof beyond a reasonable doubt ... not absolute or scientific certainty, but close to this
not enough even if you believe the accused is probably guilty or likely guilty
historical complaints triggered by scandal – no presumptive adverse inference
incremental disclosure – nothing presumptively suspect

similar act evidence inadmissible – each charge has to be determined on its own
that is, it doesn’t matter that she said, she said, and she said

no need for corroboration
here, “Nothing in addition to the complainants’ word”
here, no “smoking gun”
credibility is key

But she said, she said, and she said.

The judge said:  “I have a firm understanding that the reasonableness of reactive human behaviour in the dynamics of a relationship can be variable and unpredictable. However, the twists and turns of the complainants’ evidence in this trial, illustrate the need to be vigilant in avoiding the equally dangerous false assumption that sexual assault complainants are always truthful.”

According to the judge:

impossible to have faith in reliability and sincerity of complainants
reasonable doubt
acquittal
not the same as deciding that these events never happened

Criminal law isn’t about what happened.  It’s about proving that it did.

Beyond a reasonable doubt.

I wonder, “who is law for?”





Designed by Rachel Gold.