The trial of Jian Ghomeshi has confirmed, in a very public way, the continuing incapacity of the criminal justice system to respond to the justice needs of sexual assault survivors. There is nothing particularly surprising about the structural failures the Ghomeshi trial illuminated … what makes the case potentially significant is the national scale of the exposure, which has been fuelled by intense media scrutiny and by voracious social media. I have been teaching about sexual assault for more than a quarter century. I have watched, applauded and sometimes participated in changes to the law – the re-definition of the crime of sexual assault, the codification of consent, the imposition of limitations on mistaken belief claims, the elimination of misogynistic procedural rules, and the introduction and fine-tuning of evidentiary rules intended to protect complainants from re-victimization on the stand and to enhance the search for truth. Sadly, these changes, though progressive on-paper, seem to have accomplished little.
I think this is because the problems are structural. The primary culprits are the very ground-rules of the system itself: adversarialism, and proof beyond a reasonable doubt. Aggressive adversarial cross-examination is a core feature of criminal trials. In the he-said, she-said world of much sexual violence this means that it is the victim who must endure public re-victimization. The defence cross-examiner is entitled, and arguably required, to go beyond the accuracy of the assault narrative itself, and into the debatably relevant pre and post assault conduct of the victim-witness … and in doing so to destroy her. This process of witness destruction is rooted in both enduring myths and evolving stereotypes which inform our cultural understandings of sexual behaviour. Attempting to control the exploitable myths has been a decades long process of plugging a leak in one place (past sexual conduct) only to have another leak emerge (third party records). In Ghomeshi, it was the post-offence conduct of the complainants, documented, discussed and displayed in a world where the line between private and public has been dismantled that was manipulated by the defence.
Proof beyond a reasonable doubt, an offshoot of the presumption of innocence, is, at least rhetorically, an essential safeguard against the conviction of the innocent. Of course, the presumption of innocence seems to be routinely ignored in our systemic reliance on plea bargaining as a method of charge resolution, and, in the fact that a majority of those incarcerated in provincial detention centres in appalling conditions are detained pre-trial, that is when they are still legally innocent. When a case does get to trial, proof beyond a reasonable doubt requires a judge to acquit an accused who probably committed the crime. And, although not the case here, the burden of proof may well require the judge to acquit even when she believes the victim. As one commentator has written:
What perverse illogic deludes us into believing that a sexual-assault survivor would ever wish to seek justice by placing herself, unprotected, in a well-armed opponent’s crosshairs?
I am left wondering whether it is time to abandon criminal law … or at least to explore alternate remedial responses. I am intrigued by the suggestion that complainants be given a real choice about the justice services available to them, and that these services include the option of having the state carry forward a civil suit on their behalf where proof would be on a “balance of probabilities” and the alleged perpetrator could not invoke the right to silence.
What is clear is that the status quo is not acceptable. I hope that the Ghomeshi trial galvanizes a productive public conversation which listens seriously and constructively to survivors. If that happens, it might not have been an utter waste.