How he got away with it
March 24, 2016 9:53 AM   Subscribe

Jian Ghomeshi has been acquitted of all charges of sexual assault.

How did this verdict happen?

From the article in the Globe and Mail: "The judge in the sexual assault trial of Jian Ghomeshi offered a blistering opinion of the three complainants, saying in his not-guilty ruling that each of the women had been dishonest with the Court."

The National Post noted yesterday that "Horkins’ past rulings suggest a rigid adherence to the concept of reasonable doubt." Back in 2014 when the charges were first revealed, Macleans described how Ghomeshi was able to continue his crimes for so long despite widespread knowledge of his actions.

Previously: 1,2
posted by randomnity (312 comments total) 22 users marked this as a favorite
 
Fucking travesty of justice.
posted by feckless fecal fear mongering at 9:54 AM on March 24, 2016 [27 favorites]


Not surprising, but still hugely disappointing.
posted by Harpocrates at 9:55 AM on March 24, 2016


What the hell?!
posted by Gelatin at 9:57 AM on March 24, 2016


This is Rape Culture.
posted by wabbittwax at 9:57 AM on March 24, 2016 [72 favorites]


"Each complainant was confronted with a volume of evidence that was contrary to their prior sworn statements and their evidence in-chief,” said Justice William B. Horkins

So I guess there's the rub? If they don't conform to how everyone expects a victim to think and act in the first place do they even make it to trial though?
posted by ODiV at 9:57 AM on March 24, 2016


What in the fucking fuck.
posted by soren_lorensen at 9:58 AM on March 24, 2016


Christ, what assholes.
posted by Etrigan at 10:01 AM on March 24, 2016


For those paywalled by that first Globe & Mail link, getting at it from the G&M twitter feed may work.

Full text of the ruling.
posted by Kabanos at 10:01 AM on March 24, 2016 [2 favorites]


a piece i keep returning to is do you know about jian - if you haven't read it, and you wonder how a missing stair like ghomeshi gets so much cover, this is an excellent piece.
posted by nadawi at 10:05 AM on March 24, 2016 [32 favorites]


This week I took all my Moxy Fruvous CDs to sell back to the used media store. I loved that music, but I can't listen to it anymore.
posted by nicebookrack at 10:05 AM on March 24, 2016 [13 favorites]


"Horkins’ past rulings suggest a rigid adherence to the concept of reasonable doubt."

There's reasonable doubt, and then there's assuming that women are lying because they don't conform to your outdated ideas about how victims of sexual assault should behave.

Where's the "reasonable doubt" for them? Why, when it comes to sexual assault cases, does "I have reasonable doubt" mean "these women are liars?" Why, in order take the position of being unsure about a man's guilt, do we have to be sure about the woman's? Why do we have to destroy the women?

I think it has something to do about being angry that they tried to confront a man, that they had the nerve to think they could accuse a man of malfeasance.

I'm so angry about the double-standard on show here. I'm reminded of the stories of women who were convicted of filing false reports or of perjury only to be exonerated later.

The next time someone asks, "well, why didn't she report it," I'm going to print out this ruling, cover it in super glue, and smash it into their faces. (Well, maybe not, but I will be imagining it.)
posted by Kutsuwamushi at 10:06 AM on March 24, 2016 [81 favorites]


And so he goes on being the missing stair that nobody actually does anything about.

I'm just sick over this. Absolutely sick. One of those days where it feels like sexual assault victims will never, ever win.
posted by angeline at 10:06 AM on March 24, 2016 [7 favorites]


So this somehow is the first I've heard of this, but what I'm taking away is that you can only complain about being struck in the head repeatedly if you document your life in exacting and consistent detail before and after the event? I guess I will start wearing a GoPro 24/7 in case someone decides to hit me the knees with a baseball bat.
posted by selfnoise at 10:09 AM on March 24, 2016 [3 favorites]


Another day that makes me ashamed of my Y-chromosome. Sadly, until lawyers are prevented from victim-shaming, this sorry crap will continue to pollute our legal system. My heart goes out to those brave women who came forward to say 'enough'.
posted by aeshnid at 10:10 AM on March 24, 2016 [3 favorites]


A grouse said on facebook a little while ago, I'm sure we can all look forward to the day when the testimony of police officers will be dismissed when they deviate at all from any and all prior statements.
posted by rtha at 10:11 AM on March 24, 2016 [109 favorites]


I'm just...I don't really have any words. I am sad that I am not surprised and I don't look forward to the redemption angle he and a PR company are going to mount for a comeback.

Just fuck. This is why we don't tell anyone, this is why we don't press charges.
posted by Kitteh at 10:11 AM on March 24, 2016 [7 favorites]


What means exist to punish the judge for this?
posted by Pope Guilty at 10:12 AM on March 24, 2016 [3 favorites]


I'm getting the sense they think consensual sex (or even heavy petting) at one point precludes rape at any other point?

That's stupid, writ in red boldface capitals.
posted by Mooski at 10:13 AM on March 24, 2016 [5 favorites]


An actual literal quote from the judgment:
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.
Yeah, tell me more about how this was just about reasonable doubt.
posted by Phire at 10:14 AM on March 24, 2016 [74 favorites]


Equally dangerous?

EQUALLY FUCKING DANGEROUS?

I need to find some pictures of puppies or something.
posted by Etrigan at 10:15 AM on March 24, 2016 [17 favorites]


not terribly long ago someone here said that women who don't report are to blame when their attacker inevitably goes on to victimize others. outcomes like this show how untrue that is. it is not our fault that whether we report or not most of us will never see the sort of justice we deserve. people write long articles about why women like crime shows so much - most of them focusing on the sexualized way violence is shown - but as a fan of these shows, i think a large part of it is that in these universes women are eventually believed and rapists eventually are found guilty. and yet, even in our wish fulfillment, we know we have to watch violence against women first.
posted by nadawi at 10:18 AM on March 24, 2016 [76 favorites]


The entire judgment reads like a fucking checklist of rape myths and I don't know where to go in a legal system that is so willfully ignorant of our vast body of scientific knowledge regarding trauma and memory and sexual assault and survivorship. We make scientists keep up on the latest innovations, we make programmers learn a new fucking language every other month, why the fuck can a judge get away with not even having a passing knowledge of the past 40 years of social science research?

It makes you wish for vigilante justice, it really does.

I never expected Ghomeshi to be convicted--I'm not naive--but Horkins' despicable hour in the limelight excoriating us lying women who lie hit hard in a way I didn't expect. Four women took the stand and a man stayed silent, and somehow the man was believed to be more credible.

This Chatelaine interview with DeCoutere about her experience with Henein's eviscerating cross-examination and the crown's utter incompetence at preparing her for the trial is a gut punch, too.
posted by Phire at 10:18 AM on March 24, 2016 [59 favorites]


I need to find some pictures of puppies or something.

National Puppy Day
posted by ZeusHumms at 10:18 AM on March 24, 2016 [2 favorites]


I'm just sick over this. Absolutely sick. One of those days where it feels like sexual assault victims will never, ever win.

Different country, but Adam Johnson, an English football player, got sentenced to six years today for grooming a 15 year old.
posted by robocop is bleeding at 10:19 AM on March 24, 2016 [6 favorites]


This sucks for so many reasons, including because it's both a cause and effect of rape culture; it can happen because we already have an entrenched patriarchal society and it makes it clear that there won't be "justice" even if you speak out and even go through the criminal justice process with multiple supporting accounts. No wonder people don't report their rapes! That this shit is happening now makes it easier for this shit to happen in the future because it tells women "don't bother to speak up. You will be punished and your assailant won't."
posted by Mrs. Pterodactyl at 10:19 AM on March 24, 2016 [4 favorites]


“The harsh reality is that once a witness has been shown to be deceptive and manipulative in giving their evidence female, that witness can no longer expect the Court to consider them to be a trusted source of the truth,” said Justice Horkins.
posted by rocket88 at 10:20 AM on March 24, 2016 [7 favorites]


Anne Theriault has been killing it on Twitter today:
Judge certainly went out of his way to express his disgust for the witnesses. Accused never takes the stand, witnesses picked apart. Justice

Not only is Ghomeshi found not guilty, but the women who came forward have now been opened to national ridicule & condemnation.

Actual quote from the judge: "We must fight against the stereotype that all sexual assault complaints are truthful"

So that's where we are

Here's the thing: the judge's job is to find the defendant guilty or not guilty. It's not his job to say we need to believe less survivors.

I expected a not guilty verdict, but I'm blindsided by these comments. Maybe I'm naive but I didn't predict this vitriol towards witnesses.

2016 and no statistic in the world will convince our justice system that the priority shouldn't be protecting men against false rape claims.
Recommended by Theriault:

Zosia Bielski: How politeness conditioning can lead to confusion about sexual assaults
posted by zombieflanders at 10:20 AM on March 24, 2016 [56 favorites]


Have been reading through Zosia Bielski's piece. Processing how I feel and how to feel about this.
posted by ZeusHumms at 10:23 AM on March 24, 2016


Different country, but Adam Johnson, an English football player, got sentenced to six years today for grooming a 15 year old.

different country, different sport by the same name, but american football player darren shaper - who drugged and raped at least 9 different women - will likely end up serving less than 15 years all told.
posted by nadawi at 10:24 AM on March 24, 2016 [1 favorite]


This week I took all my Moxy Fruvous CDs to sell back to the used media store. I loved that music, but I can't listen to it anymore.

I hated that crap then, and I hate it more than ever now. Anyway I predict that JG has a great future ahead of him now on American radio.
posted by My Dad at 10:24 AM on March 24, 2016


What was the logic behind not putting Ghomeshi on the stand? Is this some Canadian Section 11(c) thing where he didn't have to testify against himself?
posted by Wretch729 at 10:25 AM on March 24, 2016


what people think of jian's music seems entirely beside the point.
posted by nadawi at 10:26 AM on March 24, 2016 [17 favorites]


What was the logic behind not putting Ghomeshi on the stand?

Defense lawyers generally don't like putting the accused on the stand. It opens them up to the same kind of Gotcha bullshit that they use against witnesses.
posted by Etrigan at 10:27 AM on March 24, 2016 [5 favorites]


Different country, all-girls private school: School says it's not responsible for rapist teacher because the victim was "negligent and careless" about staying silent. We could play this game forever. Victims will always lose.
posted by Phire at 10:28 AM on March 24, 2016 [23 favorites]


Thanks to everyone adding relevant links!

And sorry for my poor choice of pull-quotes. Didn't mean to imply that reasonable doubt was a legitimate reason for the judgement, just that it was the (weak) excuse used.
posted by randomnity at 10:31 AM on March 24, 2016 [1 favorite]


Moving to Canada after Trump gets elected suddenly doesn't look so good.
posted by JanetLand at 10:33 AM on March 24, 2016 [6 favorites]


The case is the prosecution's to prove beyond a reasonable doubt. If the defence thinks they haven't proven it then they won't put the accused on the stand.
posted by any portmanteau in a storm at 10:35 AM on March 24, 2016 [3 favorites]


A grouse said on facebook a little while ago, I'm sure we can all look forward to the day when the testimony of police officers will be dismissed when they deviate at all from any and all prior statements.

Rape culture is the biggest headline here, obviously, but one of the systemic problems for access to justice across the board is that the less privileged person is required to abide by a standard that the other side isn't. Rape victims have to behave in a certain way (no matter what actual honest to god research says about that stereotype) or they're not trustworthy, but when the criminal defendant is a young black man and the other side is a police officer, the rules flip! Suddenly "reasonable doubt" has a totally different meaning! How weird. I work in a legal area where my clients are (usually) low-income people of color and they are frequently found incredible because they can't testify to dates and specifics, but the other side comes in and gives some broad generalities and it's fine. It's infuriating, and it's such a common way these games are rigged.
posted by Bulgaroktonos at 10:35 AM on March 24, 2016 [49 favorites]


Aside: as sick to the stomach as I am over the treatment of the brave women who took the stand, I am also incredibly over people calling out Marie Henein for defending Ghomeshi. I have a very, very hard time believing a male lawyer would be facing the same level of vitriol. There's something to be said for holding up a standard of sisterhood and expecting better of those in similar positions of oppression, but tearing into another woman for her patriarchal bargain seems...not productive.
posted by Phire at 10:37 AM on March 24, 2016 [11 favorites]


No doubt this judge held those biased views before the trial and they were instrumental in his decision. Can't his statements be used to justify appealing to a higher court?
posted by rocket88 at 10:38 AM on March 24, 2016 [2 favorites]


My question was about legal procedure more than strategy; why didn't the prosecution put Ghomeshi on the stand. I guess they can't compel him to testify? I get why the defense wouldn't.

Also I guess it's just one interview and other people will have other information but that interview Phire linked to gives the impression that the prosecution massively bungled the case. Assuming I'm not misinterpreting her words it appears they didn't prep her for cross-examination, and they hadn't gone through her emails with Ghomeshi. How do you not tell one of your important witnesses in a very high-profile case "go to your email, search for everything you sent to Ghomeshi, and send it to me?" Not prepping your witness with what they should expect to be asked on cross-examination would get you in trouble on a high school mock trial team!
posted by Wretch729 at 10:38 AM on March 24, 2016 [1 favorite]


Link to a PDF of the decision. Haven't read it yet so won't comment on it:

http://www.ontariocourts.ca/en/24mar16.pdf
posted by any portmanteau in a storm at 10:38 AM on March 24, 2016


For those who haven't read the article, Ghomeshi has another trial coming up in June for a single count of sexual assault "dating from an alleged incident of workplace harassment in 2008".
posted by ODiV at 10:38 AM on March 24, 2016


Moving to Canada after Trump gets elected suddenly doesn't look so good.

Besides this Jian Ghomeshi ghoul, any American considering moving to Canada should Google "Rob Ford", "Doug Ford" (two crypto-Fascists whose innovative retail politics have been adopted by Trump... Canada did it first!), "Kevin O'Leary," "Don Cherry," "Ezra Levant," Dalhousie dentistry students," "UBC rape," "murdered and missing women," "Brianna Jonnie."

It's getting annoying to be regarded as this peaceful, tolerant fantasy land by American "progressives."
posted by My Dad at 10:39 AM on March 24, 2016 [24 favorites]


I am so bloody angry, it is making me feel unwell. I would never report a rape. I just wouldn't. And especially not again someone with power because yes, you might get your day in court, but it'll be used to destroy you. But then I knew that before this, and I knew it about Canada.
posted by lesbiassparrow at 10:40 AM on March 24, 2016 [6 favorites]


See, this is why the 'not all men' bullshit doesn't fly - it doesn't matter if you think you're not the problem or if I know I'm not the problem, 'cause the entire frigging system is set up so a woman can never really know she won't be assaulted by the man closest to her or by someone she works with or by some stranger on the street, and she's got a better chance of winning a scratch-off ticket than getting something like justice or closure if it does happen.

Christ, I'm so done with this shit.
posted by Mooski at 10:41 AM on March 24, 2016 [32 favorites]


We must fight against the stereotype that all sexual assault complaints are truthful
We must fight against the stereotype that all sexual assault complaints are truthful
We must fight against the stereotype that all sexual assault complaints are truthful
We must fight against the stereotype that all sexual assault complaints are truthful
We must fight against the stereotype that all sexual assault complaints are truthful
We must fight against the stereotype that all sexual assault complaints are truthful

Jesus Fucking Christ. Fuck. Fuck. FUCK. That's the stereotype? A rapist goes free based on such a despicable lie. This man should not have any kind of position of power. This is the LAST sort of man who should be judging sexual assault cases. It's 10:40 in the morning over here and I feel like vomiting. The feeling that I'm feeling is a mixture of nausea, disgust, terrible sadness and hatred. I don't know if it's going to go away.
posted by Neronomius at 10:42 AM on March 24, 2016 [44 favorites]


Have we figured out yet how many "she-saids" it takes to equal one "he-said"? More than 3, I guess.
posted by torisaur at 10:42 AM on March 24, 2016 [78 favorites]



What means exist to punish the judge for this?

Judicial independence is a thing. The Crown could appeal but given how they tanked this I doubt they will.
posted by feckless fecal fear mongering at 10:42 AM on March 24, 2016



Have we figured out yet how many "she-saids" it takes to equal one "he-said"? More than 3, I guess.


We'd have to call that the Bill Cosby ratio - which started at what, 35?
posted by zutalors! at 10:44 AM on March 24, 2016 [72 favorites]


The Crown could appeal but given how they tanked this I doubt they will.

Yes, the Crown seems to have been incompetent here. Can't blame the judge exactly for the verdict.
posted by My Dad at 10:45 AM on March 24, 2016 [3 favorites]


Have we figured out yet how many "she-saids" it takes to equal one "he-said"? More than 3, I guess.

I don't know why, but out of everything that has been said here so far, this sentence literally blew my mind. You're so right, torisaur, so god damn right. And that makes me so sad
posted by JenThePro at 10:46 AM on March 24, 2016 [10 favorites]


I thought the judge's opinion was well-reasoned and thoughtful. He specifically and repeatedly emphasizes that his concerns as to the reliability of the witnesses is not based upon the nature of their post-assault behavior, however contradictory it may have seemed - but the fact that important information was omitted or mis-characterized. E.g.

"I do not accept that Ms. DeCoutere could have sincerely thought that all
this was inconsequential and of no interest to the prosecution. She may have
been afraid to disclose this information. She may have been embarrassed to
disclose this information. These would not be unreasonable feelings; but to say
that she decided not to disclose this information because she thought it was of no
importance is just not credible."

Beyond a reasonable doubt is a very high standard. The difficulty of satisfactorily meeting it undoubtedly means some guilty individuals go unpunished. I personally do believe that Gomeshi is a serial sexual assaulter. But I don't think the judge erred in his decision based on the evidence brought by the prosecution, and the issues raised by the defense.
posted by Aubergine at 10:48 AM on March 24, 2016 [27 favorites]


Can't blame the judge exactly for the verdict.

Luckily, we can blame him for the judgment! And what a glorious heap of garbage grease fire that is indeed.
posted by Phire at 10:48 AM on March 24, 2016 [19 favorites]


This is something that constantly concerns me - once you've raped, the penalty for keeping on doing it goes down,

and i have always known that every time i was raped, my ability to be believed went down. i have been victimized too many times to every be a "good victim." the dichotomy of these two truths should feel shocking, but it's just the way it is.
posted by nadawi at 10:49 AM on March 24, 2016 [22 favorites]


From the ruling: "This is not an email that L.R. could have simply forgotten about and it reveals conduct that is completely inconsistent with her assertion that the mere thought of Jian Ghomeshi traumatized her."

I am intimately acquainted with completely inconsistent conduct, having sent an email to a guy a few days after he assaulted me that said, "I don't know why I let you do that to me" when I had done no such thing, when I had squirmed and yelled and begged and said no no no. I asked him if he would be my boyfriend because I thought that would retroactively give him permission to do what he did. I didn't want him to think he was the kind of man who would do that even though he said over and over that I had made him do it. I told him he was good and that he should not punish himself. I needed to feel like it had been a choice on my part, like I'd had some kind of control over what had happened, so I pushed all of those words out and hit send as soon as I could. I already knew how to live in the kind of world where women were at fault for anything that happened to us so 'officially' absolving him of blame was easier than I ever would have expected.

If I would have done anything except spend the next six years silently feeling like a ghost haunting my own rotten skin, he could have broadcast my words to all of god's children and exonerated himself instantly. He could have said, just like this, he could have said see, she said she let me do it, she never said no, she was kind to me after, she was not ever any kind of victim, and that would have been that. You can spend years swearing up and down that you will fight with every last ounce of your strength, that you will kick and scream and bite and scratch, that you will make your assailant bleed if it is the last thing you do, but sometimes what you find out is, maybe you won't. Maybe you will be kind and gentle. Maybe you will peel open your heart and dig around for some ghastly imitation of forgiveness. No one ever knows how they are going to react until it is happening.

Love and faith to all of my fellow imperfect witnesses on this heartbreakingly predictable occasion. I believe you. I believe you!
posted by amnesia and magnets at 10:49 AM on March 24, 2016 [159 favorites]


I thought the judge's opinion was well-reasoned and thoughtful.
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.
Equally. Dangerous.

No. Neither well-reasoned nor thoughtful. Justice may be blind, but it doesn't have to be a dick about it.
posted by Etrigan at 10:50 AM on March 24, 2016 [37 favorites]


Fuck Jian Ghomeshi.
posted by Fizz at 10:50 AM on March 24, 2016 [8 favorites]


I hope this is just the fake-out acquittal at the 20 minute mark and we'll get to see Ice-T slam Ghomeshi against a wall after the next commercial
posted by theodolite at 10:50 AM on March 24, 2016 [21 favorites]


To say that she decided not to disclose this information because she thought it was of no importance is just not credible

🎶 fuck your standards of perfect victimhood 🎶
posted by Phire at 10:50 AM on March 24, 2016 [29 favorites]


What annoys me about this decision is that the Judge very easily could have justified disbelieving the witnesses based purely on the fact that all three of them kept changing what they were saying under oath.

All the stuff about "why would an assault victim snuggle with the assaulter after" is B.S., "this is not how a victim should act" nonsense, that really doesn't deserve weight. Even the stuff about inconsistencies with media statements shouldn't be all that important -- people lie to the media all the time (I think we can be pretty confident that Ghomeshi did).

But, claiming under oath that you didn't spend time with the guy after the assault, and then, during the same trial, admitting that yes, in fact you did (because there were pictures of it!) ... I don't think that it's anti-victim at all to say that makes you an unreliable witness. Who was counseling these women to lie on the stand?

To be clear, I'm pretty sure that Ghomeshi is guilty of sexual assault. But I also can't fault the Judge for not believing the testimony of these particular women. But I think the Judge's reasons for not believing them were far too embellished by various "facts" that shouldn't have been in evidence, and shitty statements about victims.

But then again, maybe he wanted to set the Crown up for an appeal?
posted by sparklemotion at 10:51 AM on March 24, 2016 [26 favorites]


Luckily, we can blame him for the judgment! And what a glorious heap of garbage grease fire that is indeed.

The law is an ass, etc etc. Important for American MeFites to understand that judges are never elected in Canada.
posted by My Dad at 10:51 AM on March 24, 2016


The text of the judge's statement read from the bench shocks the conscience, though. He could have issued the ruling (which, while I'm not happy about it, is a reasonable outcome given the cases as presented) without eviscerating the witnesses and informing women across Canada that failing to behave like a "proper" rape victim will render your testimony worthless, and also that going public about being sexually assaulted by a celebrity renders your claims inherently suspicious because obviously you're just trying to gain audience and capitalize on your alleged assaulter's fame.

I thought the judge was maybe just appeal-proofing his verdict during the trial and gave him more leeway than most spectators did, but my jaw was on the floor while reading his statement. It's honestly shocking to hear from the bench in such an important, high-profile case. It's one of the grossest judicial narratives I've ever read. It's morally repugnant.
posted by Eyebrows McGee at 10:52 AM on March 24, 2016 [59 favorites]


What means exist to punish the judge for this?

It's touching that you think that there are such means.
posted by EmpressCallipygos at 10:53 AM on March 24, 2016 [5 favorites]


Have we figured out yet how many "she-saids" it takes to equal one "he-said"? More than 3, I guess.

We'd have to call that the Bill Cosby ratio - which started at what, 35?

You're leaving out a critical value that has yet to be derived: Burress's Multiplier, a constant representing the ability of a single male voice to finally make people listen to X number of female voices.
posted by Strange Interlude at 10:53 AM on March 24, 2016 [80 favorites]


I read the judgement and I agree with the verdict. Jian lost his high paying job which was fair reaction but the way the trial went the testimony and accusations were not good enough to set precedent. In 2002 I called the cops on my live in boyfriend for about the same level of abuse the three complainants received. He was given 24 hours to move out and a no contact order. Well we did stay in contact for a year but I never went back to living with him or dating. I really get the post abuse contact the women had. But to have attempted to try my ex over 10 years later with no documented evidence and a post assault friendship? That can't happen in a court imo.
posted by biggreenplant at 10:53 AM on March 24, 2016 [3 favorites]


You're leaving out a critical value that has yet to be derived: Burress's Multiplier, a constant representing the ability of a single male voice to finally make people listen to X number of female voices.

Correct.
posted by zutalors! at 10:55 AM on March 24, 2016 [5 favorites]


Jian lost his high paying job which was fair reaction

Jian losing his job at the CBC was totally unrelated to these claims. That was based on workplace harassment which was initially swept under the rug and that trial begins in June.
posted by thecjm at 10:57 AM on March 24, 2016 [28 favorites]


But, claiming under oath that you didn't spend time with the guy after the assault, and then, during the same trial, admitting that yes, in fact you did (because there were pictures of it!) ... I don't think that it's anti-victim at all to say that makes you an unreliable witness. Who was counseling these women to lie on the stand?

if you asked me if i spoke to my last rapist after he drugged and assaulted me i'd honestly say that from my memory the answer is no, but if you had chat logs that proved that untrue i wouldn't be surprised. trauma impacts memory. just because it's untrue doesn't mean it's a lie and it is a misunderstanding of how trauma impacts victims to use such strong language to describe it.
posted by nadawi at 10:58 AM on March 24, 2016 [49 favorites]


and you wonder how a missing stair like ghomeshi gets so much cover

"Missing stair"--that is a very helpful concept that I hadn't encountered before. Thank you.
posted by Zerowensboring at 10:59 AM on March 24, 2016 [3 favorites]


My Dad: “Important for American MeFites to understand that judges are never elected in Canada.”

They are rather rarely elected in the United States – only certain state and local judges in particular localities are elected (this was a reformative trend in the Jacksonian era, supposed to improve democracy) but federal judges in the U.S. are always appointed.

feckless fecal fear mongering: “The Crown could appeal but given how they tanked this I doubt they will.”

My Dad: “Yes, the Crown seems to have been incompetent here. Can't blame the judge exactly for the verdict.”

These things seem quite true to me. Regardless of "high standards of evidence," I am absolutely staggered and appalled that the Crown's staff didn't go out of their way from the beginning to assert in no uncertain terms that Ghomeshi's victims had had prior and later relationships with him, and that this in no way invalidated their claims. The fact that the Crown apparently tried to hide this – or even worse, that the Crown wasn't actually aware of it at all – speaks very, very poorly of the effort that was put into this case. It's really a tragic lapse. I am in the United States, but I feel like even the lowest-paid small-town lawyer here would know: if there is evidence prejudicial against your client, you introduce it as soon as possible so that your opponent can't introduce it, and you deal with it swiftly to remove it as a reason for discounting their testimony. You absolutely do not try to hide it or steamroll over it. I mean, really.

Doesn't it bear repeating? The fact that any woman had a prior or later relationship with Jian Ghomeshi absolutely does not indicate his innocence – far from it. The Crown should have hammered this point hard, at every opportunity, instead of apparently skipping over these details.

But then – it is likely, given this judge's verdict, that almost nothing would have been enough. It's clear from his statements that he's on some sort of crusade.
posted by koeselitz at 11:00 AM on March 24, 2016 [19 favorites]


I'll come up with something clever to say when I'm done punching stuff and yelling FUCK over and over again.
posted by louche mustachio at 11:00 AM on March 24, 2016 [8 favorites]


if you had chat logs that proved that untrue i wouldn't be surprised. trauma impacts memory. just because it's untrue doesn't mean it's a lie and it is a misunderstanding of how trauma impacts victims to use such strong language to describe it.

I've heard about this happening like 9.7/10 in accounts from friends so I completely believe it. Trauma affects memory and memory is faulty anyway.
posted by zutalors! at 11:00 AM on March 24, 2016 [5 favorites]




nadawi: “just because it's untrue doesn't mean it's a lie and it is a misunderstanding of how trauma impacts victims to use such strong language to describe it.”

That is true, but it is not the responsibility of these women to get their stories straight and present them cogently to the court. It's the responsibility of their lawyers. They may very well have difficulty sorting out exactly what happened; it's totally reasonable, given the trauma they went through. (Jian Ghomeshi is that kind of monster.)

It is the responsibility of their lawyers to sort these things out for them, and to explain to them exactly what they should and should not say on the stand. If there is evidence suggesting they had later contact with shitface, then they need to go over that evidence, work with them to sort out what happened, and probably advise them not to say they didn't have later contact with him. (I don't know how it works in Canada, but in the United States both prosecution and defense are obliged to share all evidence with each other, so they should have known about this.)

I just feel like – it was not their job to defend themselves in court, and they are being re-victimized in having this crap thrown at them, both by (a) a judge apparently hell-bent on shaming women, and (b) a government apparently incapable of doing even the minimal of due diligence in preparing and protecting the witnesses it puts forward in a prosecution.
posted by koeselitz at 11:07 AM on March 24, 2016 [21 favorites]


Oh, now that I've read the judge's statements from the bench, I retract my earlier comment. His comments make me doubt his ability to act as an impartial trier of fact.
posted by Aubergine at 11:08 AM on March 24, 2016 [3 favorites]


or even worse, that the Crown wasn't actually aware of it at all

I think this is what happened. It sounds like there was little if any witness prep. In this interview, Lucy DeCourtere describes her trial date getting pushed forward, and the only heads up about the trial itself was from her own lawyer not from the prosecution.
posted by thecjm at 11:11 AM on March 24, 2016 [7 favorites]


First, fuck this judge and his reasoning, and fuck fuckhead Ghomeshi.

Second, I think there needs to be some kind of lawsuit against the Crown for misconduct. Something. Initiated by a third party if necessary - is there an organization situated for this? I bet it could/would be crowdfunded.

Third, fuck this judge and his reasoning, and fuck fuckhead Ghomeshi.
posted by cotton dress sock at 11:11 AM on March 24, 2016 [6 favorites]


I sort of agree with a judge that it is incredibly important to answer your questions truthfully under oath if you are going to be relied on as a witness. I'm a bit confused about why the prosecution didn't drive this home harder to the victims. But man, these Reasons are so indelicate that it overshadows what I think is the real legal basis here and I worry they may have increased the chilling effect on victims of sexual assault testifying and giving statements. Nearly all of the things that the victims didn't disclose are pretty easily explained by these things happening 10+ fucking years ago, and/or had no bearing on whether or not Gomeshi assaulted them. It's just really frustrating and sad. I might not remember things I did last week sometimes, but I would sure as fuck remember if I'd given someone the OK to choke me and punch me in the head.
posted by Hoopo at 11:11 AM on March 24, 2016 [2 favorites]


Jian losing his job at the CBC was totally unrelated to these claims. That was based on workplace harassment which was initially swept under the rug and that trial begins in June.

How many different trials related to his behavior are there?
posted by ZeusHumms at 11:13 AM on March 24, 2016


one of the hardest parts about aquaintence rape is that the timeline of what happened when gets mushed up just like memories of what stores you went to in the mall this week vs last week. trauma also replays in some victims minds, but doesn't always replay in the right order or with the right focus. i can't tell you how old i was when my brother started sexually abusing me because i have two specific memories that are in absolute contradiction to each other. facts are hard things to grasp as trauma+time work on your brain.
posted by nadawi at 11:15 AM on March 24, 2016 [9 favorites]


That judge needs to be removed from office. Absolutely disgusting.

From the last time we discussed this: A man is 631 times more likely to become an NFL player than to be falsely accused of rape. Thirty-two times more likely to be struck by lightning. Eleven times more likely to be hit by a comet. The chances against THREE false accusations? Go buy PowerBall tickets for the next two drawings, and expect to win both of them; you have much better odds.
posted by Mayor West at 11:16 AM on March 24, 2016 [46 favorites]


Having read the full verdict, I feel like the unwritten story underlying all the lies and omissions is one of a group of women who were certain they would not be believed if they told the truth. They were attempting to fabricate a version of the truth that would lead to a conviction -- because it was more certain, because it was more believable, because it was more damning.

It would be wrong to look at the inconsistencies and see simply women who lied to the court. Instead, we should look at the inconsistencies and wonder about a system that made them feel they had to lie to the court.

I have no doubt that some bad shit went down all those years ago, but I also have no doubt that based on the evidence presented to him, the trial judge arrived at the correct legal verdict. The law may search for truth, but if there's no clear truth to be found, then it can't act.
posted by jacquilynne at 11:27 AM on March 24, 2016 [24 favorites]


when i was in high school, i went to tim horton's with the adult teacher who had sex with me five years previously.I wanted to have sex with him. and i wanted to have him to see i was doing well. we had an awkward conversation and nothing happened. another person who more violently raped me when i was away at school, i still often think about sexually. his raping me formed my sexuality. i am working on a book about masculinity in the west, but i am also thinking about this re;gomeshi, i don't want to claim their stories. but rape victims are forced to behave in ways that do not reflect the reality of trauma's breakages. they have to be perfect victims.

Every one of the dozens of women who have told me they have been harassed, or beaten, or cat called, or drugged, or raped, or threatened, I have offered to help them if they want to go to the police. and I don't think I know one who has. Because they know what will happen if they do. they know they will not be perfect victims.
posted by PinkMoose at 11:31 AM on March 24, 2016 [30 favorites]


I feel like the unwritten story underlying all the lies and omissions is one of a group of women who were certain they would not be believed if they told the truth. They were attempting to fabricate a version of the truth that would lead to a conviction -- because it was more certain, because it was more believable, because it was more damning.

Yeah, this is probably (almost certainly) what happened.

based on the evidence presented to him, the trial judge arrived at the correct legal verdict.

More careful interviewing of the witnesses, and accounting for their behaviour by way of an expert witness or three would have helped. The Crown did not fulfill their moral duty.
posted by cotton dress sock at 11:32 AM on March 24, 2016 [9 favorites]


whether someone agrees with the verdict or not the judge's comments are completely out of bounds.
posted by nadawi at 11:34 AM on March 24, 2016 [34 favorites]


Were they trying to "fabricate" something? Or, as has been mentioned in this thread, is it more likely that trauma seriously fucks with your mind and makes it difficult if not impossible to remember every detail in perfect courtroom-friendly clearly labeled order?
posted by palomar at 11:35 AM on March 24, 2016 [8 favorites]


PTSD is deceptive and manipulative, dontcha know.
posted by Phire at 11:36 AM on March 24, 2016 [3 favorites]


I really hate when the news reminds me that not reporting my own rape was almost certainly the less traumatic choice.
posted by Akhu at 11:38 AM on March 24, 2016 [21 favorites]


if you asked me if i spoke to my last rapist after he drugged and assaulted me i'd honestly say that from my memory the answer is no, but if you had chat logs that proved that untrue i wouldn't be surprised. trauma impacts memory. just because it's untrue doesn't mean it's a lie and it is a misunderstanding of how trauma impacts victims to use such strong language to describe it.

The problem is, when you need to prove that someone is guilty beyond a reasonable doubt, based on your word, how can you expect the court to do the sorting out of what is a trauma-induced untruth vs. actual truth when you insist that everything you say is actual truth.

I want to make it clear that I am in no way wanting to blame the victims for being victimized here, and I think the fault lies with the Crown and their personal attorneys for not coaching them appropriately. But if, say, L.R. had said "The next day, I didn't want to hang out with him, but I might have, my memory is hazy," instead of "The next day, I stayed at his place but totally kept my distance" (or whatever her specific testimony was), it would be a lot easier to, beyond a reasonable doubt, believe her when she also says that she definitely didn't consent to the assault.

Instead, the court got: Thing A (that is evidence that convicts Ghomeshi) DEFINITELY happened, and Thing B (which is weaksauce and not really relevant either way) DEFINITELY DID NOT happen from the witnesses. And then proof comes out that Thing B actually DID happen. It's not unreasonable for the court to decide that maybe the witnesses were "confused" about Thing A as well.
posted by sparklemotion at 11:40 AM on March 24, 2016 [8 favorites]


@ palomar - I think it was a bit of traumatic forgetting, plus some ordinary forgetting, plus a bit of actively selective curation, because they knew they needed to come across as the "right" kind of victim (when of course there is no such thing). They knew what they were up against. There's just no winning.
posted by cotton dress sock at 11:41 AM on March 24, 2016 [4 favorites]


The problem is, when you need to prove that someone is guilty beyond a reasonable doubt, based on your word, how can you expect the court to

i don't expect that, which is why i have never officially reported any of the times i was raped over a period of 15 years by multiple men. i am never surprised when the system fails victims, it's the only thing i've ever seen it do.
posted by nadawi at 11:46 AM on March 24, 2016 [20 favorites]


Yeah, shit like this is why I never reported my own sexual assault twenty years ago. I knew I wouldn't be believed and people would find new and unique ways to insist that I was a liar. Just like these women.
posted by palomar at 11:49 AM on March 24, 2016 [12 favorites]


Yeah, shit like this is why I never reported my own sexual assault twenty years ago.

My reaction was "Well, that was back in... oh, the '90s." How have we not made progress on this.
posted by Etrigan at 11:52 AM on March 24, 2016 [3 favorites]


Were they trying to "fabricate" something?

It seems pretty obvious to me that they were trying to avoid telling the police and/or court about whole swaths of things, and only did so when they were confronted with obvious evidence that it happened. Lots of this related to how much they saw of Ghomeshi later on, what contact they had with him, even what contact the witnesses had with each other. They would deny those things, then be shown photographs or emails proving they'd happen, and then they'd offer really unbelievable explanations of why they hadn't said anything before. Not, I suspect, that the genuine explanation 'if we didn't do this, you would have disbelieved us even harder than you do now' would have gone over particularly well with this judge.
posted by jacquilynne at 11:54 AM on March 24, 2016 [5 favorites]


@palomar - I think it's miles away from "lying". I think, if that's part of what happened, it is a completely rational and understandable response to institutionalized sexism.
posted by cotton dress sock at 11:56 AM on March 24, 2016 [1 favorite]


I read the decision, and I did not notice any instances where the judge reported that the credibility of witnesses was called into question by their behavior after the alleged sexual assaults. He did sometimes indicate that it was damaged by their descriptions of that behavior in statements to police made in advance of the trial, or testimony given in court.
posted by layceepee at 12:04 PM on March 24, 2016 [2 favorites]


They would deny those things, then be shown photographs or emails proving they'd happen, and then they'd offer really unbelievable explanations of why they hadn't said anything before.

This falls exactly in line with the notion that trauma fucks with the memory, and does not necessarily mean these women are liars. It would be great if you could stop calling them liars.
posted by palomar at 12:04 PM on March 24, 2016 [3 favorites]


That makes sense, but how is the court to distinguish between unreliable memory because of trauma and deliberate deception?
posted by Justinian at 12:06 PM on March 24, 2016 [2 favorites]


He did sometimes indicate that it was damaged by their descriptions of that behavior in statements to police made in advance of the trial, or testimony given in court.

Let's say LD did remember writing that letter to fuckhead about his hands.

I'm not saying she did. I don't think she did.

Let's say she did, though. How do you make a cop understand that someone choked you against your will, and it turned you on in some dark, animalistic way? How do you make that fit into the law's demand for simplistic narratives?
posted by cotton dress sock at 12:09 PM on March 24, 2016 [4 favorites]


I think what disturbs me most is that the judge felt safe, felt as if he would face no pushback or penalty, in lecturing the victims and outright stating that they were filthy liars.

Well, no. What disturbs me most is that the judge was almost certainly right. A few feminists online will complain, and the result of that will be exactly nothing. He will continue to serve as a judge, continue to actively seek to protect rapists in his courtroom, and continue to do his utmost to shame and punish women who dare to bring cases to him.

Of course women don't report their rapes. Knowing that judges like this one are just itching for an opportunity to shame and belittle them, no woman in her right mind would report a rape.
posted by sotonohito at 12:14 PM on March 24, 2016 [12 favorites]


how is the court to distinguish between unreliable memory because of trauma and deliberate deception?

well first we get a system where from the cops to the judges to the politicians to the pastors to society the instinct is to believe women when we talk about our lives. since we obviously can't have that, how about when a case can't be proven beyond the standard needed because reasons the judge doesn't pontificate in ways that exactly align with rape culture.

i know this is too much to ask.
posted by nadawi at 12:14 PM on March 24, 2016 [24 favorites]


how is the court to distinguish between unreliable memory because of trauma and deliberate deception?

I think there is a role for science here, for expert witnesses to present the currently accepted research about the way that trauma affects memory, and how those memory changes are likely to manifest.

Based on that, and what the witnesses say, the finder-of-fact can maybe hope to claw through everything to try to get at the truth. That the Crown didn't present that kind of evidence points towards a failure of the prosecution here.

How do you make a cop understand that someone choked you against your will, and it turned you on in some dark, animalistic way? How do you make that fit into the law's demand for simplistic narratives?

Here's the deal, we shouldn't want to live in a society where people can be convicted based on lies (and I'm using the lie word here, because this is a hypothetical where the victim did in fact keep facts from the police). It's shitty that the system is skewed towards putting the victims on trial before even investigating the suspect, but the way to fix (or even, as an individual, navigate) the system isn't to try to gin up your story to make yourself look better.
posted by sparklemotion at 12:17 PM on March 24, 2016 [4 favorites]


It's shitty that the system is skewed towards putting the victims on trial before even investigating the suspect,

I don't see how it could be any other way consistent with due process. Maybe we should eliminate to trim due process back, but we should be clear that that's what is proposed.
posted by jpe at 12:23 PM on March 24, 2016 [2 favorites]


It's shitty that the system is skewed towards putting the victims on trial before even investigating the suspect, but the way to fix (or even, as an individual, navigate) the system isn't to try to gin up your story to make yourself look better.

That's just a long-winded way of accusing them of being liars, which is something you don't really have evidence of, while the many articles about the effects of trauma from sexual assault linked from this thread point out memory problems are a very real thing.
posted by zombieflanders at 12:24 PM on March 24, 2016 [8 favorites]


how about when a case can't be proven beyond the standard needed because reasons the judge doesn't pontificate in ways that exactly align with rape culture.

I think the judge should have shut up because that was awful. I'm not sure victims would feel that much better with a not guilty verdict that wasn't accompanied by bullshit but it sure couldn't hurt to find out.
posted by Justinian at 12:24 PM on March 24, 2016 [2 favorites]


I don't see how it could be any other way consistent with due process.

I think that there are ways to investigate the claims of victims that are respectful of the trauma that the victims have probably experienced and also protect the accused's rights to due process. I hope it doesn't muddy the waters to bring in a completely different case, but the way Marie was treated in this This American Life story is all too common, and probably what Ghomeshi's victims were trying to avoid.
posted by sparklemotion at 12:27 PM on March 24, 2016 [3 favorites]


I wonder what effect this verdict will have on J.G suing the CBC? Can't say that it looks good. J.G. might walk away from all this a much wealthier man.
posted by hoodrich at 12:27 PM on March 24, 2016


That's just a long-winded way of accusing them of being liars, which is something you don't really have evidence of, and which the many articles about the effects of trauma from sexual assault linked from this thread point out is a very real thing.

I think responses to trauma are complicated in ways beyond its effects on memory (already difficult for the law to capture), and some of those effects really need careful attention in order to parse consent. And I don't blame anyone for not trusting a cop or lawyer or judge to make sense of it. They are evidently ill-equipped for that.
posted by cotton dress sock at 12:29 PM on March 24, 2016 [1 favorite]


That's just a long-winded way of accusing them of being liars, which is something you don't really have evidence of...

As stated in the sentence immediately preceding the one quoted, the comment was responding to a hypothetical (proposed by another user) in which the victim really was lying (at least by omission).
posted by sparklemotion at 12:30 PM on March 24, 2016


most of us are within living memory of when it wasn't illegal for husbands to rape their wives. we managed to find a way to make that illegal without destroying the entire system of due process and reasonable doubt, i'm sure there's a solution to get better outcomes for acquaintance rape trials too that won't destroy justice as we know it.
posted by nadawi at 12:31 PM on March 24, 2016 [26 favorites]


I guess I don't see how we square that circle. As long as due process entails proof beyond a reasonable doubt and the right to confront accusers, I don't see how due process is maintained and trauma respected.

That certainly could be my lack of imagination, though.
posted by jpe at 12:31 PM on March 24, 2016


It seems pretty obvious to me that they were trying to avoid telling the police and/or court about whole swaths of things, and only did so when they were confronted with obvious evidence that it happened.

This to me is the only reason at present to think that this may have been a verdict that will stand against appeal. The bullshit rationalizing of "trust" factors the judge engages in (things like lateness in reporting, behaviour after the fact etc...) is horrible to see from the bench though. It plainly reflects a judicial understanding of victim behaviour that is decades out of date. It's kind of shocking to see how out of touch and uneducated a supposed legal specialist on sexual assault really is.
posted by bonehead at 12:34 PM on March 24, 2016 [3 favorites]


jpe - i'm not a legal scholar, merely pointing out that the law has dealt with similar challenges before and managed to find a way forward even though people said you could never prove spousal rape (a thing some of the united states elected officials still believe, for what it's worth).
posted by nadawi at 12:35 PM on March 24, 2016 [1 favorite]


The bullshit rationalizing of "trust" factors the judge engages in (things like lateness in reporting, behaviour after the fact etc...) is horrible to see from the bench though

In literally any other context it's a routine way to assess witness credibility.
posted by jpe at 12:36 PM on March 24, 2016 [4 favorites]


@ nadawi: we never said we couldn't prove spousal rape, we said it wasn't a crime.
posted by jpe at 12:37 PM on March 24, 2016


one of the reasons spousal rape was seen as not a crime is because many felt it couldn't be proven beyond a reasonable doubt.
posted by nadawi at 12:40 PM on March 24, 2016 [4 favorites]


I guess I don't see how we square that circle. As long as due process entails proof beyond a reasonable doubt and the right to confront accusers, I don't see how due process is maintained and trauma respected.

I don't think anyone is calling for not requiring the prosecution to put its witnesses on the stand and face cross-examination (which is what the right to confront entails). But there's a difference between a tough cross-examination (which is what these women faced), and an entire law enforcement system that it set up to distrust accusers.

I mean, cops and prosecutors do have to use their judgment a little, and should investigate the crimes (as opposed to just running out and arresting the accused), but it does seem that in many cases, they put a lot of more emphasis into finding cracks in the accusers story than they do in finding ways to prove the accused guilty. This particular case is funny, in that it seems like the law enforcement side wasn't skeptical enough of the side details of the witnesses stories, and wasn't sufficiently prepared to handle them when they came out in court. So obviously a balance has to be found.
posted by sparklemotion at 12:41 PM on March 24, 2016 [2 favorites]


Ok, but no one was proposing to change the rules of evidence or the burden of proof. Those are the only two things that could be changed now. And I don't see how either could be changed consistent with due process.
posted by jpe at 12:41 PM on March 24, 2016 [1 favorite]


That seems totally reasonable to me, sparklemotion, although as you note that wouldn't have made a difference here.
posted by jpe at 12:43 PM on March 24, 2016 [1 favorite]


In literally any other context it's a routine way to assess witness credibility.

How many other contexts are there in which the witness/victim is assumed to be lying from the get? Are robbery victims questioned about how often they loaned their possessions to others prior to being stolen from, for instance?
posted by palomar at 12:44 PM on March 24, 2016 [31 favorites]


That certainly could be my lack of imagination, though.
posted by jpe


you should listen to this voice.
posted by nadawi at 12:45 PM on March 24, 2016 [9 favorites]


I think the fact that the deck is profoundly stacked against them is not new news, though perhaps crowing about it from the fucking BENCH and declaring the victims are the problem is a little beyond the pale, yes?
posted by Mooski at 12:45 PM on March 24, 2016 [15 favorites]


Are robbery victims questioned about how often they loaned their possessions to others prior to being stolen from, for instance?

If they had previously loaned possessions to the person I think they would be, yes.
posted by Justinian at 12:45 PM on March 24, 2016 [4 favorites]


Like any defense attorney worth a spit would certainly say "On previous occasions X, Y, and Z you loaned items to the defendant, did you not? Isn't that what happened here as well? "
posted by Justinian at 12:46 PM on March 24, 2016 [1 favorite]


In literally any other context it's a routine way to assess witness credibility.

Except that we know for sexual assault victims these are bad indicators of credibility. They're not reliable. We use them anyway.

Not to mention that people (both judges and juries) are just very bad at assessing credibility. People rely on things like internal inconsistencies (which are often a function of jumbled memories and the effect of trauma) and demeanor (fidgeting, avoiding eye contact, etc.) which measures nervousness as often as it measures anything else. Compare how cops, who are basically professional witnesses, testify as compared to random people off the street; the difference isn't that the cops are telling the truth.
posted by Bulgaroktonos at 12:47 PM on March 24, 2016 [14 favorites]


Like any defense attorney worth a spit would certainly say "On previous occasions X, Y, and Z you loaned items to the defendant, did you not? Isn't that what happened here as well? "

But would it work? Would the judge end up issuing a ruling that decried how the false accusation of robbery was equally dangerous as robbery?
posted by Etrigan at 12:48 PM on March 24, 2016 [16 favorites]


Yeah, would anyone outside an utter garbage fire of a human being consider that to be a valid defense?
posted by palomar at 12:49 PM on March 24, 2016 [2 favorites]


That seems totally reasonable to me, sparklemotion, although as you note that wouldn't have made a difference here.

I think it would have, my working theory about the failure to convict here is this:

1.) Law enforcement tends to be overly skeptical of rape accusers who don't act like "perfect" victims, based on flawed ideas of what victims act like.

2.) Witnesses present themselves as "perfect" victims, probably consciously to some degree, probably influenced by traumatically affected memories to some degree. Law enforcement is happy to find some "perfect" victims and goes with it.

3.) In court, some witness statements are found to be untrue, bringing into question the the truth of other statements by the same witnesses. Therefore, prosecution fails to meet its burden.

If 1.) wasn't true on a systemic level, I'd like to believe that 2.) probably wouldn't have happened. The witnesses would have talked about their "strange" behaviour, and the prosecution would have presented evidence to show why their post-assault behaviour wasn't strange at all.
posted by sparklemotion at 12:50 PM on March 24, 2016 [4 favorites]


Probably not. The question wasn't "would it work" it was "would it happen". I think it would happen but would be unlikely to work, barring other evidence.
posted by Justinian at 12:51 PM on March 24, 2016


The judge really is calling the witnesses liars. I didn't follow the case enough to know if it was warranted or not.

From the judge's conclusions in the decision, the bolding added is by me:

[137] Each complainant was confronted with a volume of evidence that was contrary to their prior sworn statements and their evidence in-chief. Each complainant demonstrated, to some degree, a willingness to ignore their oath to tell the truth on more than one occasion. It is this aspect of their evidence that is most troubling to the Court.

[138] The success of this prosecution depended entirely on the Court being able to accept each complainant as a sincere, honest and accurate witness. Each complainant was revealed at trial to be lacking in these important attributes. The evidence of each complainant suffered not just from inconsistencies and questionable behaviour, but was tainted by outright deception.

[139] The harsh reality is that once a witness has been shown to be deceptive and manipulative in giving their evidence, that witness can no longer expect the Court to consider them to be a trusted source of the truth. I am forced to conclude that it is impossible for the Court to have sufficient faith in the reliability or sincerity of these complainants. Put simply, the volume of serious deficiencies in the evidence leaves the Court with a reasonable doubt.

[140] 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. At the end of this trial, a reasonable doubt exists because it is impossible to determine, with any acceptable degree of certainty or comfort, what is true and what is false. The standard of proof in a criminal case requires sufficient clarity in the evidence to allow a confident acceptance of the essential facts. In these proceedings the bedrock foundation of the Crown’s case is tainted and incapable of supporting any clear determination of the truth.
posted by any portmanteau in a storm at 12:51 PM on March 24, 2016 [4 favorites]


In literally any other context it's a routine way to assess witness credibility.

There are hundreds of studies of sexual victim behaviour post abuse every year. These do not seem to have greatly informed the judges' reasoning. It's really discouraging to see judges replace science with ad hoc "analysis" from first principles. He's neither citing much current precedent or literature here.
posted by bonehead at 12:52 PM on March 24, 2016 [4 favorites]


That's a pretty shitty paraphrase.
posted by Justinian at 12:55 PM on March 24, 2016 [5 favorites]


Full paragraph for that quote:

[135] As I have stated more than once, the courts must be very cautious in assessing the evidence of complainants in sexual assault and abuse cases. Courts must guard against applying false stereotypes concerning the expected conduct of complainants. 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. Each individual and each unique factual scenario must be assessed according to their own particular circumstances.
posted by any portmanteau in a storm at 12:56 PM on March 24, 2016 [4 favorites]


While I agree with everyone that this case have been a travesty of justice, there was at least this little bit of mercy: http://globalnews.ca/news/2497294/jian-ghomeshi-trial-second-witness-set-to-testify-against-former-cbc-radio-host/

Justice Horkin refused the public release of a bikini photograph of one of the victims because: "there was 'grave concern' that disclosure of the bikini photo could have a 'chilling effect' or 'deep freeze' that could potentially discourage alleged victims from coming forward in the future."
posted by Dalby at 12:57 PM on March 24, 2016


That's a pretty shitty paraphrase.

Only in the sense that it claims that there's any sort of "stereotype" that sexual assault accusations are believed.
posted by Etrigan at 12:57 PM on March 24, 2016 [2 favorites]


The bullshit rationalizing of "trust" factors the judge engages in (things like lateness in reporting, behaviour after the fact etc...) is horrible to see from the bench though.

I didn't see either one of these coming from the judge as a reason to doubt the testimony of the witnesses. As I mentioned earlier, he did write that misrepresenting behavior after the fact, and offering an explanation for the misrepresentation that wasn't supported by the fact, was damaging to credibility, but I thought he specifically mentioned that the behavior itself was not a basis to doubt the accounts the accusers presented. And if he cited lateness as reporting the alleged crime as a factor in his decision, I missed that. Can you point to what specific remarks you are characterizing that way?
posted by layceepee at 12:57 PM on March 24, 2016


1.) Law enforcement tends to be overly skeptical of rape accusers who don't act like "perfect" victims, based on flawed ideas of what victims act like.

They don't even treat their female colleagues with any respect. I mean this is an uphill battle.

That's the RCMP, not local police. I wouldn't expect significantly different behaviour from local police forces. I suppose I could be surprised. I've been finding myself very much unsurprised through all this, though.
posted by cotton dress sock at 12:58 PM on March 24, 2016 [2 favorites]


I couldn't find where anyone highlighted this so far, but this is from the CBC Live Blog of the hearing this morning. It's a comment regarding the first complainant who sent Ghomeshi a friendly e-mail a year after the fact and said it was to entice him to get in touch so she could get an explanation for the assault she experienced:

The judge has moved on to the emails the complainant sent to Ghomeshi, both of which he said it seems impossible to believe that she forgot about.

"The negative impact of this after-the-fact-conduct is surpassed by the fact that she never disclosed any of this to the police or the crown. It was only after she confront by the emails and subsequent images" in cross-examination "that she remembered the emails were part of a plan," the judge said.

While the judge said it's possible someone could try to bait someone in this way, the fact that it completely contradicted her earlier evidence causes him to find it an unlikely scenario. He said that while the after-the-fact behaviour can't be held against a witness in a sexual assault trial, "the behaviour of this complainant is, at the very least, odd."


(emphasis mine)
posted by torisaur at 1:00 PM on March 24, 2016 [1 favorite]


"While after the fact behaviour can't be held against the complainant... Imma just go ahead and do it anyway"
posted by feckless fecal fear mongering at 1:03 PM on March 24, 2016 [24 favorites]


"Equally dangerous." Nauseating.

However, if the Crown does seek to appeal (I understand that it may do so under limited circumstances in Canada, unlike the U.S.), it is actually useful that the judge was so up front about his reasons. They will not, in themselves, give rise to grounds for reversal, but they may be quite helpful in inspiring in the appeals court a sense that the verdict itself was based on something other than sound legal reasoning, which in some ways is the most important thing to do.
posted by praemunire at 1:07 PM on March 24, 2016 [1 favorite]


That's the RCMP, not local police

Worth pointing out the RCMP are basically the local police in some places that don't have their own force
posted by Hoopo at 1:09 PM on March 24, 2016


I think the point that the judge was trying to make was, it's not the emails that make you a bad witness, it's that you claimed to forget about the emails, and then tried to explain that they were part of some scheme that makes you a bad witness.

Like, for the judge to believe the witness here, he'd have to believe that (a year after the assault) she was traumatized enough to forget that she planned to send emails to "trap" him, and that she was only able to access that memory when she was presented with evidence that the emails existed.

If, when presented with the emails, the witness had instead said "yeah, I sent them, I guess I was just trying to take some ownership over what happened to me..." or something along those lines, it would have seemed a lot less self serving.

If this is the way trauma affects memories, so be it, but if the Crown really wanted that to be believed, the Crown should have presented some evidence along those lines.
posted by sparklemotion at 1:10 PM on March 24, 2016 [1 favorite]


Thanks metafilter for being a place of reasonable discussion on this trying case. I look forward to hearing people's thoughts on this.

While I see there were flaws in the case, my sense is that it parallels the experience in a small town where everyone knows about "that guy" you stay away from. Nothing is ever done through official channels, or attempts to do so fail, but all/most of the women know and quietly keep each other in the loop, and try to keep each other safe from "that guy". It seems like he was this guy in some circles.

I feel like, as a woman, I am less of a person in my country today.
posted by chapps at 1:14 PM on March 24, 2016 [11 favorites]


as people are typing up long winded defenses of the judge or the judicial system, it might be good to remember that this isn't just a thought exercise for some.
posted by nadawi at 1:16 PM on March 24, 2016 [36 favorites]


I followed the case, and I was pretty sure that Ghomeshi was going to be found not guilty -- the prosecution did an absolutely atrocious job of preparing the witnesses and didn't call anyone to explain anything about memory in the aftermath of trauma. I did not expect that the entire judgement was going to be "women gonna lie about being raped to get more twitter followers".
posted by jeather at 1:19 PM on March 24, 2016 [3 favorites]


I'm fucking done. Just done with rape culture and this world. Done with having any compassion for men's feelings and trying to convince them that rape culture is a thing.

This resonates with me. I booted someone off my Facebook friend list at the close of the Ghomeshi trial. He posted a link to an atrocious Christie Blatchford column (in which, to name just one vile thing about it, she compared the Ghomeshi trial to the Oak Hill satanic ritual abuse trial) with the comment that all Blatchford's court dispatches were "worth reading". He and I had had many arguments over a number of issues in the past, such as the time he rushed to the defense of Roosh V's freedom of speech, condemned John Tory's and Norm Kelly's criticisms of Roosh as "grandstanding", and said that any one who is bothered by Roosh V's opinions "should write something about it", even though he knew, for I had told him, that Roosh V doxxes and encourages his followers to harass any woman who speaks out against him. It turned my stomach that he would have so much concern for Roosh's freedom of speech, yet have so little concern for women's freedom of speech and, more than that, their safety, that he would give advice so thoughtless as to verge on the criminally irresponsible. There were other such incidents when he'd, say, criticize then Toronto mayoral candidate Olivia Chow for how she lost her temper when responding to racist comments, while he simultaneously refused to acknowledge that they were racist, or that she was routinely on the receiving end of racism, and he criticized Taylor Swift's response to Kanye West as "childish" without in any way criticizing West for his very disrespectful and messed up treatment of her.

This is a guy who refuses to acknowledge that white privilege and rape culture even exist -- he considers them "trite, nebulous theories". He and I have known each other for 19 years and he was someone I valued, but his biases were so ugly and his perspective so fucked up and self-serving (this is a guy with serious entitlement issues who is very quick to consider himself as having been treated badly even when he hasn't been) that the Blatchford thing was the last straw and I just couldn't remain in contact with him any more. I mean, I even gave him the benefit of the doubt and read that festering piece of shit of a column, but no more.

I cannot and will not give my friendship and regard to those who refuse to take an honest look at who is really being victimized in this world and consequently do nothing but uphold abusers and chastise those who are being hurt for how they navigate their abuse.
posted by orange swan at 1:21 PM on March 24, 2016 [25 favorites]


I'm sure we can all look forward to the day when the testimony of police officers will be dismissed when they deviate at all from any and all prior statements.

Having now been on two juries where we let very likely guilty (of minor drug offenses) defendents walk for precisely this reason, it can - and I suspect regularly does - undermine the cops more often than you might think. Basically the first thing said in the jury room in both instances when we sat down was, "I'm pretty sure the cops were lying".
posted by ryanshepard at 1:28 PM on March 24, 2016 [3 favorites]


If, when presented with the emails, the witness had instead said "yeah, I sent them, I guess I was just trying to take some ownership over what happened to me..." or something along those lines, it would have seemed a lot less self serving.

Ah yes, if only these women had behaved in this specific way that you proscribe, surely they would've been vindicated by our impartial justice system.

Did you read the interview with DeCoutere in Chatelaine? Because this is what she had to say about those emails:
Post-incident conduct — that term has come to haunt me. When I was concerned about emails with Jian, they were emails from before [the assault]. I wasn’t even thinking about after because I didn’t think it mattered — because it shouldn’t matter. Now I understand that it matters because it measures your memory. I didn’t know my memory was on trial.

[...]

I don’t know what my motivation was, except to be as openhearted as possible. And to have that used as a way of proving that I’m lying 13 years later, while the document is being live-tweeted and I’m trying to figure out what I was thinking… I’ll never know why I wrote that letter.
If you remember with perfect clarity every email you've sent in the past 13 years in sequence of events as well as why you sent them, I envy your mind.
posted by Phire at 1:36 PM on March 24, 2016 [19 favorites]


From the judgement:
[119] S.D offered an excuse for hiding this information. She said that this was her “first kick at the can”, and that she did not know how “to navigate” this sort of proceeding. “Navigating” this sort of proceeding is really quite simple: tell the truth, the whole truth and nothing but the truth.
Something Jian didn't have to do FWIW.
posted by mazola at 1:39 PM on March 24, 2016


He would have if he had testified. Not being able to compel testimony from the accused is like the basis of most attempts at reasonable legal systems.
posted by Justinian at 1:42 PM on March 24, 2016 [3 favorites]


I get that.
posted by mazola at 1:44 PM on March 24, 2016


Here is a stunning essay from yesterday's Globe and Mail that explains clearly why rape victims keep the secret for years and the impact keeping that secret has on their lives: Breaking my silence, again and again, by Anna Côté
posted by strasbourg at 1:48 PM on March 24, 2016


This week I took all my Moxy Fruvous CDs to sell back to the used media store. I loved that music, but I can't listen to it anymore.

I'm sure you're not alone in this feeling. I don't own any Moxy Fruvous albums but I can't even listen to their music on YouTube any more, even though I once did frequently, and with such innocent pleasure. If the members of Moxy Fruvous were enjoying any significant continuing royalties from their work, they are almost certain not to any more. And I'm glad of it. The other members of the band have claimed they knew nothing of Ghomeshi's behaviour towards women, and I do not find that credible given that a) so many people close or even slightly acquainted with him knew about it and, as band members on tour, they would have been inescapably privy to such knowledge of his character, and b) I've read that the band was barred from certain venues back in the day owing to Ghomeshi's conduct. They knew about it, they failed to do anything about it, and they are culpable. Therefore they deserve to suffer the financial consequences of their own moral negligence.

It's some comfort that Ghomeshi won't get off scot-free here either. He is unlikely to be able to have any kind of career ahead of him now, which to someone of his insatiable ambition and narcissism is going to be galling. He probably does have a fairly substantial net worth, but his legal costs are going to eat up a significant percentage of it, and if he can't live off the interest of his capital, he's in trouble, because he's not going to be able to get much of a job. (Or as I saw on Twitter when the news first broke, "Once I was the King of Q; now I podcast from my basement.") His social life and dating prospects must be equally dismal. There could easily be a thousand women out there whom he has hurt, and he deserves worse, but at least it's something significant.
posted by orange swan at 1:55 PM on March 24, 2016 [5 favorites]


orange swan, you are far more positive about JG's future than I. I dread and anticipate a not insignificant attempt to regain his King of Cool status. I expect lots of faux remorse on many media outlets as well as manufactured pity for his victims.
posted by Kitteh at 1:59 PM on March 24, 2016


That interview with Chatelaine. Lucy, you are amazing, none of this is your fault. I hope you can sleep soon.
posted by cotton dress sock at 2:01 PM on March 24, 2016 [2 favorites]


Now I understand that it matters because it measures your memory. I didn’t know my memory was on trial.

This makes me *facepalm*. I believe that this woman was assaulted. I want to believe that she didn't intentionally keep facts that made her look bad away from the police or the prosecution. But she was using her memory to put a man in jail -- how could you not expect your memory to be part of the equation at trial? It was literally the only evidence!
posted by sparklemotion at 2:01 PM on March 24, 2016 [10 favorites]


it's a hard spot to be in - in our current place with laws and such where they are - the verdict was likely correct (not just, not an expression of innocence, not the judge's explanations which are so fucked up i just can't even) and it's entirely correct to say because that was the likely outcome (and the judge gave such a good demonstration what happens to imperfect victims), women are probably better served by never reporting and serial rapists will just keep on keeping on and women will just keep passing on missing stair information that will obviously miss the ones most in danger because serial rapists are able to get away with it by knowing who to single out.

and i just fuckin despair.
posted by nadawi at 2:15 PM on March 24, 2016 [10 favorites]


Relevant:

http://sfist.com/2016/03/24/vallejo_police_huskins_sexual_assault_exam.php

if youre too worked up to read its new details in the case of a victim in california whose story was dismissed when her mother told the cop investigating it that she was a childhood sexual abuse survivor . . . shockingly the cop was incorrect.
posted by Exceptional_Hubris at 2:16 PM on March 24, 2016


The acquittal and the judge's statements made me immediately think of a tweet full of utter despair that someone posted after George Zimmerman got away with murdering Trayvon Martin: How many times we gotta be told we ain't shit? We get the fucking message.
posted by lord_wolf at 2:26 PM on March 24, 2016 [17 favorites]


orange swan, you are far more positive about JG's future than I. I dread and anticipate a not insignificant attempt to regain his King of Cool status.

Quoting someone I follow on Twitter: "Mike Tyson is a CONVICTED rapist & has a cartoon show. But pls tell me bout the consolation prize of Ghomeshi's career at least being ruined"

(Omitting a link because she's a woman, so merely for mentioning you-know-who's name she's already got some dude bro motherfuckers jumping into her mentions to be shitty. None of you fine folks would do that, but I'd rather not expose her to the possibility of further piling-on.)
posted by tobascodagama at 2:33 PM on March 24, 2016 [2 favorites]


Mod note: One comment deleted. jpe, maybe take a step back from this rather than continuing to insist that the discussion revolve around you.
posted by LobsterMitten (staff) at 2:38 PM on March 24, 2016 [9 favorites]


Not disagreeing with basically any of the points above but it seems the bottom line is, sadly,

The prosecution fucked this up. They weren't prepared and they didn't prepare their witnesses. And ran into a buzzsaw of a defense which isn't unethical; it's their job.
posted by raider at 2:55 PM on March 24, 2016 [5 favorites]


I'm sorry, but if whacking isn't unethical, it should be.
posted by NoxAeternum at 3:37 PM on March 24, 2016 [6 favorites]


Perhaps defence by ambush should be for these kinds of cases? Sexual assault complainants should be given reasonable notice of evidence (e.g. the emails) that an accused intends to lead on cross-examination for the purposes of impugning credibility. This trial may have gone differently if the prosecution knew the case it had to rebut in advance.
posted by ageispolis at 3:50 PM on March 24, 2016


I thing providing the government any defense evidence to be brought up at trial is a really bad idea. It might change some results you think were unjust but I guarantee it would cause far more injustice than it would prevent.
posted by Justinian at 3:54 PM on March 24, 2016 [3 favorites]


I am aware that sex offenders who don't serve deserved jail time do go on to get high profile career opportunities they shouldn't in decency be offered, Woody Allen and Roman Polanski being two examples that come to mind. But they, and Mike Tyson (who served a three-year sentence for rape and is a registered sex offender, so he did not go unpunished) are household names in the U.S., while Jian Ghomeshi was only modestly well known even in Canada's much smaller market. He's a media figure and a musician whom no one will want to listen to. I'd be very surprised if he ever has any appreciable level of success in media or music ever again.
posted by orange swan at 3:56 PM on March 24, 2016


And ran into a buzzsaw of a defense which isn't unethical; it's their job.

Ethics aren't like physics. It's a human system, and humans can change them.
posted by the man of twists and turns at 3:56 PM on March 24, 2016 [9 favorites]


I thing providing the government any defense evidence to be brought up at trial is a really bad idea. It might change some results you think were unjust but I guarantee it would cause far more injustice than it would prevent.

The prosecution need not be provided the evidence, just given notice that it exists. The trial judge could review it without the necessity of disclosing it to the prosecution. I realize this would be a fundamental and controversial change, and perhaps not an advisable one in the end. But it's worth thinking about some of the ways the criminal justice process could be reformed for sexual assault trials.
posted by ageispolis at 4:02 PM on March 24, 2016


Ethics aren't like physics. It's a human system, and humans can change them.

Maybe the Crown in this case could have done a better job? What's the point of prosecuting (this is Canada, where both judges and prosecutors are appointed, not elected) if you have no chance of convicting?

Changing "ethics" during trial conduct would seem to be extremely difficult, given the Charter of Rights, and centuries of precedent found in Common Law.

Instead, change the (rape) culture. That seems easier. One wonders exactly how and why the Crown failed so badly here.

Maybe there was no cultural or institutional bias towards rigorously prosecuting Ghomeshi here.
posted by My Dad at 4:06 PM on March 24, 2016


A bunch of people have asked why the prosecution didn't prepare the witnesses better. This Chatelaine piece on how witnesses are prepared for sexual assault trials should shed some insight. tl;dr: the Crown has little obligation to witnesses specifically and aren't actually charged with securing a conviction. Many witnesses have no legal representation of their own and must rely on Crown prosecutors who don't actually represent them for trial prep.

When you hear people talking about the need to fix the criminal justice system, they're talking about stuff like this.
posted by chrominance at 4:14 PM on March 24, 2016 [23 favorites]


Man, why is it hard to get that if someone hurts you in a way that society is reluctant to recognize, that you might just do the expected things (snuggle, make breakfast) afterward, so they won't immediately hurt you more? It's the same as giving a man a fake number so that he won't erupt, but writ large. It's the same thing.
posted by lauranesson at 4:21 PM on March 24, 2016 [20 favorites]


Joining the chorus to say I'm disappointed with the way the prosecution handled this.

And it's worth noting that even absent the confounding influence of trauma, a decade-old memory is going to be vague about a lot of things. It seems like basic due diligence to do things like make sure your witnesses aren't talking to each other, and that you can run through the presumptive cross-examination prior to subjecting people to it.

Years ago, I was a witness in a sexual assault case where one of the defendants was found not guilty, and a big part of why they were found not guilty is because the prosecution did a poor job in making it clear that it's better to give an honestly vague or inconsistent account rather than to try to tell the court what you think they want to hear. It's better to say that you don't know or don't recall than try to guess what a timeline was, and if nothing else, I hope this verdict ends up embarrassing the prosecutors enough to get them to do better with victims and witnesses in the future.

"How many other contexts are there in which the witness/victim is assumed to be lying from the get? Are robbery victims questioned about how often they loaned their possessions to others prior to being stolen from, for instance?"

Basically any crime involving drugs or drinking, any where the victim might have anything to gain, any where the police would be the perpetrator, and many involving African Americans, at least in America. (I remember a friend who got mugged a block or so from where he lived, and the cops didn't believe him that he'd been walking there, because he was white and it was a black neighborhood. The cops refused to believe a neighbor of mine with a broken jaw reporting that he'd been assaulted because the guy that hit him had a broken hand, so it was "probably mutual." Another friend was accused of stealing his own car when he reported it stolen, because he owed more on it than it was worth, and in a separate incident was accused of lying about racists smashing his windshield. Having cops assume that you're telling the truth is a mark of privilege; I don't think it's a coincidence that sexual assault victims often lack that presumption of sincerity.)
posted by klangklangston at 4:34 PM on March 24, 2016 [10 favorites]


This makes me *facepalm*. I believe that this woman was assaulted. I want to believe that she didn't intentionally keep facts that made her look bad away from the police or the prosecution. But she was using her memory to put a man in jail -- how could you not expect your memory to be part of the equation at trial? It was literally the only evidence!

We do not (or should not) expect witnesses who experienced traumatic events to construct perfect and flawless architectures around those events and the order in which they happened and recite them without omission or subjectivity or bias. This is unreasonable. We expect them to have been observers to events we want to know about, and recall them and discuss them to the best of their memory, and to be honest and participate in good faith. That is it. It is up to the attorneys to construct these architectures and fill in gaps and provide explanations - and they are often competing contradictory architectures as well with tons of omissions and biases and we construct our justice system around that.

We do not expect witnesses like Lucy Decoutere to step outside of themselves and the events they've lived through and view them dispassionately and clearly, because that's not possible. Nor do we expect them to perform armchair psychology on themselves to try to figure out why they did things, because humans are complex and messy in a million ways and often the things they do are locked secrets even to themselves.

All of this is what Lucy is trying to convey in that interview. Don't facepalm. Think about what she's saying, it's important.
posted by naju at 5:08 PM on March 24, 2016 [11 favorites]


Statement released by Ghomeshi's lawyer Marie Henein. Tellingly, nowhere in the statement is there the least claim that Ghomeshi is innocent of the charges against him.
posted by orange swan at 5:11 PM on March 24, 2016 [5 favorites]


Awful, awful, awful. This is what I feared would happen and it did. My heart breaks for all the women who were assaulted by Jian Ghomeshi, and it breaks again for the ones who were then dragged over the coals in front of all of Canada by his defense lawyer.
posted by hurdy gurdy girl at 5:16 PM on March 24, 2016 [6 favorites]


Ghomeshi was acquitted because his victims were disbelieved for acting the way rape victims act in reality, rather than the way rape victims act in movies, books, and stories which are primarily written by men. He was acquitted because the judge was more willing to believe men's fictions than women's truths.
posted by KathrynT at 5:17 PM on March 24, 2016 [46 favorites]


I feel like some kind of combination of bleak, numb, despairing, and nauseated. Actually probably the best word is "retraumatized" now that I think about it.
posted by KathrynT at 5:25 PM on March 24, 2016 [6 favorites]


So let's see:

-The crown did a horrendous job of preparing the witnesses, and called no expert witnesses regarding the behaviour of rape victims
-The judge goes out of his way to right an opinion that could pass as an MRA pamphlet
-Rapists have now essentially been handed a playbook for how to get away with sexual assault (not that the path to getting off wasn't clear before)

Tell me again why any woman in their right mind would report a sexual assault.
posted by dry white toast at 5:37 PM on March 24, 2016 [13 favorites]


This trial covered only 4 of the 23 women who have filed charges against Ghomeshi. But rather than allowing me to reserve some hope that justice might eventually be done, today has just made me dread this cycle repeating over and over again.
posted by dry white toast at 5:40 PM on March 24, 2016 [1 favorite]


I think a lot of people would like Ghomeshi to have been prosecuted for being a lying, manipulative, serial harasser of vulnerable women.

Instead, he was actually prosecuted for five specific alleged acts of violence. And because of the way the law works1 you can't even say that an allegation about Ghomeshi choking a woman on this date has anything to do with him allegedly choking a different woman on that date. You treat each one individually. And because there was no evidence other than the accuser's word, their statements had to carry the whole weight of the prosecution. Taking each case individually, as the judge did, it's easy to say that there is a reasonable doubt about each event. Taking them collectively, I think there's very little doubt at all.

1 At least, the way the Crown assembled its case. Similar fact evidence is notoriously tricky.
posted by Joe in Australia at 5:44 PM on March 24, 2016 [2 favorites]


Having read most of the judge's ruling on the case, this seems less like a miscarriage of justice (i.e. a failure of the system per se) than a failure to make the case that will put Ghomeshi behind bars. Maybe the second, third or fourth time will be the charm, and I hope this verdict doesn't put a damper on subsequent trials.
Parts of the judge's statement seemed a little iffy to me, but for a case with no material evidence, and where innocence is presumed, he brought up enough reasons for doubt that I'm less inclined to hang the judge than fire the prosecution. I'm not saying *justice* was done here, only that maybe *law* was done here. But if Ghomeshi is the kind of Cosby-level criminal he seems to be (minus the statute of limitations), then hope is not lost.
posted by uosuaq at 6:03 PM on March 24, 2016 [3 favorites]


I posted a comment on this to my FB page (where I am not pseudonymous) pointing out that if I were a younger woman I'd be thinking about extrajudicial ways to punish an attacker, since this makes it abundantly clear that violent physical and sexual assaults will not be prosecuted.

Specifically, I said I'd be finding out about poison.

Two hours later I got an email from someone declaring that they were going to use it to ensure that I was fired from my (secure, tenured) academic job.

It's been a right buttfuck of a day.
posted by jrochest at 6:21 PM on March 24, 2016 [5 favorites]


With trepidation and due care, I provide a link and short quotation to an article by Sandy Garossino. She is a former BC Crown Prosecutor who has experience with such cases, perhaps providing some insight into the 'logic', as it were, behind the decision. I'm aghast with the outcome of the trial, an unmitigated disaster for survivors.

Ghomeshi Gong Show
The judge didn’t think the complainants were lying because it turned out they'd continued to pursue Jian Ghomeshi romantically, or harboured a sexual attraction to him. He thought they were lying because they deliberately suppressed or concealed important information from the media, authorities, the Crown, and from the court itself, even when giving statements under oath. …
Folks, I can’t begin to describe how badly this case went off the rails. For all the hell that survivors do endure, they do not, in my experience, repeatedly shoot themselves in the foot like this. It is ok for a witness to be imperfect, to have a fuzzy memory, to get a car make and model wrong.
It’s entirely possible that for all the drama, the claims about Ghomeshi are true. By his own admission he has violent sexual tastes. His own judgment seems sufficiently impaired that a video tape he presented to CBC management as exoneration shocked them into dismissing him immediately.
But the testimony against him at trial was an unmitigated disaster.
It was so bad that of the very senior BC prosecutors and criminal lawyers I consulted over this trial, all with decades of experience, every single one thought the Crown had an ethical obligation to support an acquittal or flat-out stay the charges. These lawyers, most of them women and all of them feminist, are profoundly troubled by the inadequacy of the Ghomeshi case.
posted by standardasparagus at 6:26 PM on March 24, 2016 [23 favorites]


That's my own understanding of what happened. This wasn't a case of imperfect recollection by the complainants; they appeared to be deliberately concealing information. Or at least it was behavior which the court could not distinguish from such action, regardless of whether it actually was deliberate or not.
posted by Justinian at 6:33 PM on March 24, 2016 [2 favorites]


the Crown has little obligation to witnesses specifically and aren't actually charged with securing a conviction. Many witnesses have no legal representation of their own and must rely on Crown prosecutors who don't actually represent them for trial prep.

This is true in the U.S. as well. It's unthinkable that, in a high-profile case which the state took seriously, a prosecuting attorney in the U.S. would not have prepared his or her witnesses extensively beforehand. I'm baffled by these reports. There are some jurisdictions (e.g., the UK) in which it's actually considered unethical for prosecuting attorneys to prepare witnesses beforehand, but Canada isn't one of them.
posted by praemunire at 6:33 PM on March 24, 2016 [1 favorite]


I actually think that this trial sucked and the prosecution sucked it up terribly, and someone gave the complainants some terrible advice.

I'm actually not really upset that he was acquitted of the charges, as the trial was kind of a mess. I am, however, very upset about this:

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.

Which I think undermines the ruling, and makes it seem less about the reasonable doubt. Really? we need to be vigilant in avoiding the false assumption that complainants are always truthful? Thanks for the reminder, I had forgotten in between reading every comment from every man on every article that mentions rape ever, about how vigilant we need to be about this, as all women are liars out to ruin a man's reputation, constantly. It's probably been 30 seconds since the last time someone presented me the reasonable argument that sometimes women lie and so rapes shouldn't be taken seriously, ever. Really, I'm surprised that the judge didn't throw out some stats about how prison rape overwhelmingly affects men, and therefore men are actually the party that gets raped the most and so really, we should just stop talking about this, and women are just lying anyways. That seems really up his alley.
posted by euphoria066 at 6:44 PM on March 24, 2016 [15 favorites]


Ghomeshi Gong Show

Sandy Garossino always has interesting things to say.
posted by My Dad at 7:26 PM on March 24, 2016


But, claiming under oath that you didn't spend time with the guy after the assault, and then, during the same trial, admitting that yes, in fact you did (because there were pictures of it!) ... I don't think that it's anti-victim at all to say that makes you an unreliable witness. Who was counseling these women to lie on the stand?

This is not a sign of being counseled to lie. This, imo, is a sign that there was a total failure on the Crown's part to prep their witnesses for court.
posted by sallybrown at 7:27 PM on March 24, 2016 [5 favorites]


A judge referring to witness testimony as inconsistent is one thing, but this judge accused the witnesses of being "deceptive and manipulative", which is assigning a motive to their inconsistencies that he really doesn't have a right to do as a supposedly impartial figure. Sickening.
posted by rocket88 at 7:39 PM on March 24, 2016 [22 favorites]


I think that's the case in a jury trial. When the judge is the finder of fact as well as the finder of law he specifically must draw conclusions about motives and credibility. There is no jury to do that for him.

I'm not at all sure he has to write about it with such apparent gusto and zeal, though.
posted by Justinian at 7:44 PM on March 24, 2016


Two hours later I got an email from someone declaring that they were going to use it to ensure that I was fired from my (secure, tenured) academic job.

Did you read the recent FPP about the parks service? Women are not allowed to threaten. If you were a guy, it would have been laughed off or even lauded as a real protectionist gesture. But, you're a woman so an example must be made.
posted by amanda at 7:57 PM on March 24, 2016 [1 favorite]


Hmmm...Rob Ford as mayor smokes wit da boyz and only caught because of new smartphone tech. This guy, serial assaulter and major media personality, only caught because he pushed things way, way too far...what is up with Ontario? The stuffy reassurances from "the Crown" are no salve.
posted by telstar at 8:40 PM on March 24, 2016






"Ghomeshi was acquitted because his victims were disbelieved for acting the way rape victims act in reality, rather than the way rape victims act in movies, books, and stories which are primarily written by men. He was acquitted because the judge was more willing to believe men's fictions than women's truths."

Did you read the verdict? He was acquitted because, under oath, the witnesses repeatedly claimed things that were not true, misrepresented facts and only confessed that after being confronted with material evidence that contradicted their accounts. That all three of them had last-minute revelations that substantially changed their prior testimony — including things like whether DeCoutere and S.D. had discussed details of the allegations, which DeCoutere claimed not to remember but that records show they exchanged over 5,000 emails — portraying those as "women's truths" seems to give short shrift to women.

Even though I agree that the background of rape culture did materially harm the case against Ghomeshi, that harm came from instances like:
S.D. claimed that she did not think it was important to disclose this intimate contact and said she wasn’t “specifically” asked about post-assault sexual activity with Mr. Ghomeshi. She ultimately acknowledged that she left out things because she felt it didn’t fit “the pattern”.
But that's specifically something that the prosecutors should have explicitly made clear to her: Withholding details will impact the credibility of the details you disclose.

As Dale and Schlifer say,
"In our experience of providing both legal and counselling support to women, it is typical for women to initially respond to violence in dating or spousal relationships by denying, minimizing, or attempting to care for the abuser. They want to bring back the nice guy, to appease, to be friendly, or to otherwise continue whatever pre-existing “normal” dynamic there was between them."
But when asked directly about that behavior, instead of admitting it, they denied it, and when confronted, they offered weak-sauce explanations.

Hopefully, the prosecution will be able to move forward with cases from other victims, and be able to make sure those victims know that hiding things that they don't think fit "the pattern" will only reinforce the pattern.
posted by klangklangston at 9:33 PM on March 24, 2016 [8 favorites]




someone gave the complainants some terrible advice.

They weren't even informed about procedures, according to one complainant interviewed on CBC radio today. She was under the impression her statement would be the beginning of a longer process; wasn't informed that whatever she could recall on that occasion would be the end of it, for evidence.

for a case with no material evidence, and where innocence is presumed,

That is almost all of them. And evidence doesn't always help, because (even in an "ordinary" sexual assault) the core of the criminal act usually happens in private exchanges between people who aren't always positioned to remember them, in that grey area of consent, misunderstanding, all of that. (Depressing piece on how often convictions happen.)

It is simply not a crime or kind of happening that is suited to being understood by this kind of system.

We have to change this.
posted by cotton dress sock at 10:59 PM on March 24, 2016 [3 favorites]


I posted a comment on this to my FB page (where I am not pseudonymous) pointing out that if I were a younger woman I'd be thinking about extrajudicial ways to punish an attacker, since this makes it abundantly clear that violent physical and sexual assaults will not be prosecuted.

Specifically, I said I'd be finding out about poison.

Two hours later I got an email from someone declaring that they were going to use it to ensure that I was fired from my (secure, tenured) academic job.

It's been a right buttfuck of a day.



With due respect, going on FB to talk about poisoning people sounds unhinged. I understand the impulse, truly I do, but...I dunno, dude. It seems weird to throw that out there and then be all wide-eyed naive that someone would respond badly.
posted by Klaxon Aoooogah at 11:09 PM on March 24, 2016 [8 favorites]


This has broken many people's faith in the idea of justice. Can guarantee jrochest isn't the only one thinking vigilantism sounds good. The sense of betrayal and disappointment and outrage is huge, people want to be honest about it.
posted by cotton dress sock at 11:32 PM on March 24, 2016 [1 favorite]


Yeah -- not to threadsit -- but I was pointing out that if legal recourse is impossible then the only remaining response to life-destroying aggression is revenge.

It's pretty simple, really.
posted by jrochest at 11:36 PM on March 24, 2016 [1 favorite]


I have no love for Ghomeshi...far from it. I think he's a smarmy, sick fuck and a sad, twisted, narcissistic little man. But with Henein as his lawyer, and the Crown not doing their job fully by taking the ammo away from the defense before the defense dropped their bombs in the courtroom, this was a foregone conclusion. The burden is with the Crown and it's a heavy burden. I think these women got caught up in the media frenzy when Ghomeshi's weird story broke. I believe these women, but belief isn't proof.

I'd be really interested to hear from Mefites who work in the legal field.

Yeah -- not to threadsit -- but I was pointing out that if legal recourse is impossible then the only remaining response to life-destroying aggression is revenge.

It's pretty simple, really.


Yeah, because history doesn't have enough examples of how that story ends...but do let us know how it turns out for you, as true arbiter of justice in the land. I think you've probably extracted yourself from possible jury duty forever, though, so that might be a plus for you.
posted by Klaxon Aoooogah at 12:28 AM on March 25, 2016 [4 favorites]


Is there something a local citizen can do to articulate their displeasure with the verdict and the statements made by the judge?
posted by olya at 6:45 AM on March 25, 2016 [1 favorite]


it's not at all surprising that some survivors respond to constantly being shown that we aren't worth a damn by dreaming of vigilantism (i know i have). if you're not in that boat maybe just ignoring it is a better tactic than calling people unhinged and whatnot.
posted by nadawi at 6:56 AM on March 25, 2016 [21 favorites]


also, if a case touches on assault from men against women at all most of the time survivors are quickly removed from the jury pool, we're "biased." so a 1/4 of women are probably not being seated in a pretty large number of juries just by virtue of being victimized, dreaming of a little poison cocktail isn't going to change the math all that much.
posted by nadawi at 6:58 AM on March 25, 2016 [13 favorites]


it's not at all surprising that some survivors respond to constantly being shown that we aren't worth a damn by dreaming of vigilantism (i know i have). if you're not in that boat maybe just ignoring it is a better tactic than calling people unhinged and whatnot.

Quoted for truth. I know it's really fun to call other people unhinged, but when we literally have no recourse at all for justice when crimes are committed against our very bodies, calling someone unhinged because they vented a little spleen just comes off really dickish, and absolutely marks you as someone who cannot be trusted as an ally.
posted by palomar at 7:13 AM on March 25, 2016 [16 favorites]


I understand the impulse to vigilantism but i would worryfor a friend who posted a comment advocating vigilante justice publicly. I agree the choice of words like "unhinged" is not appropriate.
But could we look at the intentions behind both of these comment a little more gently?
Sometimes our first reactions are just visceral reactions and should be taken less literally...
But also, sometimes our best allies are the people who gently prod us past the visceral reactions, and sometimes they don't have the perfect wording.
posted by chapps at 8:05 AM on March 25, 2016 [1 favorite]


"I'm going to get you fired" is pretty far from perfect.
posted by Etrigan at 8:08 AM on March 25, 2016 [12 favorites]


I was pointing out that if legal recourse is impossible then the only remaining response to life-destroying aggression is revenge.

I think this is something that needs a thorough discussion in society.
About sexual assault, yes,
and also about racist policing,cronic homelessness...
posted by chapps at 8:09 AM on March 25, 2016


How's an ally gonna be an ally if they don't understand that sometimes the folk they purport to support get frustrated and despondent?

(This is for general allies. The person who threatened "I'm going to get you fired" is not an ally.)
posted by XtinaS at 8:19 AM on March 25, 2016 [5 favorites]


To clarify, i was thinking of the first comment in this discussion that expressed concern about the Facebook post regarding poisoning, not the colleagues over-reaction.

This case makes me feel pretty raw. I identify with the desire to lash out... and I guess I'm trying to make space for the feelings about the Ghomeshi trials and also the caution expressed by Amanda (cautioning about the parks service example) and KlaxonAoooga here about saying these things publicly and the subsequent remark that this type of response exclude you from being an ally.

As evidenced in the Ghomeshi trial your public visceral responses can absolutely be used against you. While I would be angry if someone pointed that out as I raged, I want there to be room for allies--even those who aren't the most thoughtful in their choice of words--to express caution.
posted by chapps at 8:25 AM on March 25, 2016


to call sexual assault survivors "unhinged" when the reason most of us will struggle with mental illness for the rest of our lives is the sexual assault and the way society reacts to us as survivors, well, there's likely going to be a reaction to that. pushing back at wording like that isn't doing a disservice to people who may want to be allies.
posted by nadawi at 8:37 AM on March 25, 2016 [14 favorites]


Thanks for the reminder, I had forgotten in between reading every comment from every man on every article that mentions rape ever, about how vigilant we need to be about this, as all women are liars out to ruin a man's reputation, constantly. It's probably been 30 seconds since the last time someone presented me the reasonable argument that sometimes women lie and so rapes shouldn't be taken seriously, ever.

This is what makes my stomach churn about some of the language in this ruling. It makes me think of Duke Lacrosse, that two word phrase that completely encompasses the incredibly pervasive and repeated ad nauseam idea that Women Lie. Katie Nolan had an excellent interview with Jessica Luther, who writes about athletes and sexual assault, in a recent podcast where they discuss how that one situation (which is much messier than people want it to be, of course) has become shorthand for Women Lie. You literally don't even have to say or write a complete sentence, just say the words "Duke Lacrosse" and everyone's brain is instantly tainted with "yep, some women just falsely accuse men for funsies." [The interview was recorded on the 10th anniversary of the Duke Lacrosse case and the night that the ESPN 30 for 30 film about it debuted and is really good, if depressing.]
posted by misskaz at 8:37 AM on March 25, 2016 [2 favorites]


The verdict was upsetting but unsurprising if you paid any attention to the trial. But the entire judgement was pretty much all about how the complainants were bad people who probably wanted attention and women lie about rape too you know.
posted by jeather at 8:39 AM on March 25, 2016 [5 favorites]


katie nolan is a treasure. i hope she keeps getting a spot to feature stories like those.
posted by nadawi at 8:42 AM on March 25, 2016


And of course all the "plus they didn't act the way I think they should act, which is not relevant but I'm paying attention to it" and "she was MAD at Ghomeshi so probably this was just all faked" because you couldn't be mad at someone for assaulting you and continuing to do it.

I am mad at the judge, who had a month to learn about post-traumatic behaviours and politeness conditioning etc etc in women, and at the prosecution, who never brought in any experts about this.
posted by jeather at 8:42 AM on March 25, 2016 [7 favorites]


Point taken nadawi. Thanks.
posted by chapps at 8:42 AM on March 25, 2016 [2 favorites]


I'm just going to link to my own post here - about the research on why people who experience sexual assault (and, I'd argue, any other type of assault) don't say, do, or act the way they 'should'.
posted by VioletU at 8:50 AM on March 25, 2016 [2 favorites]


Is there something a local citizen can do to articulate their displeasure with the verdict and the statements made by the judge?

Would also like to know about formal mechanisms that are available for this. We could also write to provincial and national legal societies, and to MPs & MPPs; support advocacy groups with money and time; I guess if up to the research & have time for it, identify, name and shame bad judges on social media, or just try to keep the momentum going if you're active that way ... There were rallies in TO and Vancouver yesterday, perhaps there will be more of the same. Really keen for any Canadian attorneys or committed activists here to comment on this.

Some ideas around alternatives mentioned here and here (including some proposed again by attorney David Butt, who often represents victims of sexual assault and has some interesting views, imo (have linked to this before, sounds good to me...).
posted by cotton dress sock at 9:21 AM on March 25, 2016 [3 favorites]


Last from me, sorry. LD in the Guardian. I think she's illuminated one important part of the process that could be changed, pretty quickly

When I first went to the police, I had very little knowledge about how this would unfold. I just gave them my witness statement as evidence that something happened. I didn’t know it was going to trigger a criminal case. I didn’t know that Marie Henein was going to make me look like a fool.

...

If anybody – the police, the Crown – had told me about what post-incident contact is or why it matters, that would have gone a long way. It might not have helped me remember everything, but it might have helped me go back to that state of mind. Now, I know that when it comes to a victim’s testimony, what happened after the assault is just as important as what happened before – at least as far as the court is concerned.

There is probably a memory or forensics researcher who could work with police to optimize interviewing. (Although Loftus and others suggest there isn't a way to distinguish false from more veridical memory, other than corroboration by witnesses. I'm not sure I buy that completely. Some fMRI research has seemed to identify markers of veridical vs false memories. I mean I am not so confident about the actual use of fMRI in questioning (because DNA etc. stuff has always gone perfectly, right, no danger in overconfidence at all...), but maybe consideration of the kinds of questions that yield more true than false memories could be useful... idk. Sorry, am out now.)
posted by cotton dress sock at 9:35 AM on March 25, 2016 [6 favorites]


So, I don't have a JD; I've never been to law school. Someone, please chime in and educate me.

Is trauma experienced by the victim, and the resultant memory gaps, ever discussed in law school? Is this not a part of the discussion in learning to prep a witness?

Is (part of) the problem here that the prosecution themselves are not reasonably versed enough in trauma experience that they did not think to factor it into both witness prep, and into educating the court as part and parcel of their case?

Could the prosecution not have called a psychologist who is an expert in rape trauma as a witness?
posted by vignettist at 9:47 AM on March 25, 2016 [1 favorite]


Could the prosecution not have called a psychologist who is an expert in rape trauma as a witness?

Yes, perhaps in order to explain the post-incident behavior (but not solely for the purpose of bolstering credibility). Though it does not appear the prosecution knew about the post-incident behavior evidence until the trial had already commenced.
posted by ageispolis at 10:03 AM on March 25, 2016 [2 favorites]


I thought in Canada that surprise evidence wasn't allowed? Don't both parties have to share everything they have in advance of the trial?
posted by chapps at 10:06 AM on March 25, 2016


Unrelated but related in the same way as the puppies linked above... A friend posted this story because post ghomeshi it made her cry. Restore your faith in humsnity with these Saskatchewan kids and their buddy bench.

And then there's the beaverton who have come through for us again.
posted by chapps at 11:21 AM on March 25, 2016 [2 favorites]


"Is trauma experienced by the victim, and the resultant memory gaps, ever discussed in law school? Is this not a part of the discussion in learning to prep a witness?"

It was covered in my high school law class, along with general unreliability of eyewitness accounts, so I would hope that an actual law school criminology class would go into it.
posted by klangklangston at 11:24 AM on March 25, 2016


"Is trauma experienced by the victim, and the resultant memory gaps, ever discussed in law school? Is this not a part of the discussion in learning to prep a witness?"

Witness prep is certainly not part of the curriculum in the US. In the US, law school is where you go to learn the law; you do not learn how to be a lawyer. Witness prep was certainly never talked about where I went to law school -- NO practical courtroom skills were. The closest you get is learning how to write a brief ... to conform to the court's standards and to present a good argument, not really to win an actual case in the real world. The is fairly true across the common law world, where lawyers are expected to either learn on the job or to serve an apprenticeship of sorts after finishing the degree. (I think New Zealand has a six-week "practical lawyering skills" course tacked on to the end of law school now that's been quite popular? I'm not sure if it's mandatory or elective.)

You do discuss witness unreliability but generally only as it happens to come up in cases that set important principles of law or evidence, not as part of learning how to put on a good case.

(While legal education is in many ways bullshit that focuses on entirely the wrong things to make good lawyers, do keep in mind that the majority of lawyers never set foot in a courtroom, and the VAST majority never handle a criminal case; most lawyers write contracts, advise clients, engage in regulatory compliance work, write laws and regulations, etc etc etc. Learning how to prep a witness would have a narrow application for a small minority of law students. (Which would make it a upper-level elective if we ever decided to make the latter years of study more practical! But INERTIA.))
posted by Eyebrows McGee at 11:33 AM on March 25, 2016 [6 favorites]


to call sexual assault survivors "unhinged" when the reason most of us will struggle with mental illness for the rest of our lives is the sexual assault and the way society reacts to us as survivors, well, there's likely going to be a reaction to that. pushing back at wording like that isn't doing a disservice to people who may want to be allies.


This is not at all what I said, and the person I was responding then doubled down, insisting it's a legit response. If you don't think a tenured prof with a public facebook page suggesting in all seriousness that murder by poison is a fucking grrrreat idea! then I don't know what to say. Especially in light of violence in institutions of higher learning. If you wouldn't tolerate a student making threatening posts, then you shouldn't tolerate them from profs, either. Jesus wept, I can't believe the people defending this.

I already said I understand the impulse and anger, but blowing off steam in the form of a public broadcast on fucking facebook where it exists forever and could have serious fucking repercussions is maybe not the best idea.

Nowhere did I say sexual assault suvivors are unhinged...that is complete and utter bullshit. Jesus.
posted by Klaxon Aoooogah at 11:50 AM on March 25, 2016 [9 favorites]


I would say that it is unhinged to earnestly recommend vigilante justice, such as poisoning, and even worse to do so in a public forum as a professional.

I don't think that's an issue of male/female dichotomy, or to suggest such remarks are unhinged is an example of exercising male privilege.
posted by My Dad at 11:58 AM on March 25, 2016 [2 favorites]


I feel like survivors of sexual assault probably have a pretty good handle on the effectsof things that exist forever and have serious consequences.
posted by rtha at 12:16 PM on March 25, 2016 [13 favorites]


I feel like guys maybe shouldn't be finger-wagging at women who have seen, yet again, that the system is set up to not believe them, and are quite justifiably at the end of their ropes.

Like, fellow dudes, we are the problem here, and it's entirely inappropriate for us to tut-tut over a woman venting white-hot rage at a system that will, 997 times out of 1000, utterly fail her if she is sexually victimized.

None of us guys (cis; trans guys have other risk factors that place them as more likely to be victimized, which is a whole other kind of suck) really ever have to live with that fear. We virtually never get in an elevator with a stranger-or, indeed, an acquaintance-and have to think "is he going to assault me."

And we don't have to worry about being the perfect media-constructed victim to ensure conviction... If it ever even goes to trial.

Venting anger at those circumstances is perfectly fine, in my opinion, and our reaction needs to be not "tsk tsk" but rather "holy shit this is obviously a major problem if someone feels this is the only way left to react, we better get off our asses and burn rape culture to the fucking ground."

tl;dr, chiding women for venting rage at another manifestation of rape culture is supporting rape culture.
posted by feckless fecal fear mongering at 12:47 PM on March 25, 2016 [14 favorites]


tl;dr, chiding women for venting rage at another manifestation of rape culture is supporting rape culture.

Please please no, let's not do this. No reasonable person would deny the hurt, victimized, or disenfranchised their right to express their rage and frustration. No one is doing that here. We are, however talking about what can reasonably expected when one publicly advocates vigilante justice. Yes, Klaxon Aoooogah may have made some poor word choices, but let's not throw him/her under the bus for that. I know that on Metafilter we have claimed vigilantism as inappropriate for many other crimes (e.g., wishing prison rape on a convicted criminal). Is this different?
posted by Rora at 1:05 PM on March 25, 2016 [4 favorites]


Maybe this poisoning matter is a derail, but I strongly, strongly disagree.

I am a woman. I am a card-carrying member of the sexual assault victim club. I have been held down and assaulted, and thought I might be murdered if I didn't submit. And yet I don't think that threatening murder and vigilante justice is in any way a near appropriate response. It is clearly an inappropriate response, and if the shoe were on the other foot, say, a man advocating poisoning women that they think lie about sexual assault cases, people in this thread would be crying out for the blood of the person suggesting it.

How many people on this board are in favor of the death penalty? I'm guessing not many. But here you are proposing (seriously, proposing this, publicly, non-anonymously) to act as judge, jury and executioner. This is unhinged behavior. If you cannot control yourself and your anger on social media to the point where you are advocating for such things, you should not be on social media.
posted by permiechickie at 1:06 PM on March 25, 2016 [8 favorites]


I know that on Metafilter we have claimed vigilantism as inappropriate for many other crimes (e.g., wishing prison rape on a convicted criminal). Is this different?

yes, threatening rape as a punishment for rape is very different.

and if the shoe were on the other foot, say, a man advocating poisoning women that they think lie about sexual assault cases

lying about sexual assault is not in the same hemisphere as raping someone.

some survivors day dream about vigilante justice because we will never ever get justice any other way. very very few of us ever actually do it (and if a woman kills her rapist i am not spilling tears for him, sorry not sorry). i don't actually give a goodgoddamned who thinks that's unhinged, inappropriate, making us unfit to speak publicly or serve on juries or whatever else the fuck. if you don't like that reaction, talk to those shoving rape culture forward one acquittal at a time.
posted by nadawi at 1:14 PM on March 25, 2016 [9 favorites]


Advocating vigilantism isn't what happened though.

This is what was actually said:

"..if I were a younger woman I'd be thinking about extrajudicial ways to punish an attacker, since this makes it abundantly clear that violent physical and sexual assaults will not be prosecuted.

Specifically, I said I'd be finding out about poison. "

That's not advocating for anything, that's blowing off steam, not least because of the implication of age bringing greater wisdom.

And really, something about roving gangs of knife wielding women (someone said something like that in a comment a year-ish ago) doesn't seem entirely wrong to me. Oppressed populations often rise up, sooner or later.
posted by feckless fecal fear mongering at 1:18 PM on March 25, 2016 [16 favorites]


I agree with nadawi and fffm. What matters here is not that a clearly rational person might have said something we might find slightly distasteful. What matters is that a rapist is walking free while his victims are publicly harangued by those in authority.
posted by koeselitz at 1:24 PM on March 25, 2016 [7 favorites]


I thought in Canada that surprise evidence wasn't allowed? Don't both parties have to share everything they have in advance of the trial?

Unless Canada is very different than the United States no, no they don't. It would surprise me very much if this were the case.
posted by Justinian at 1:26 PM on March 25, 2016 [1 favorite]


And really, something about roving gangs of knife wielding women (someone said something like that in a comment a year-ish ago) doesn't seem entirely wrong to me

Like that scene in Born In Flames with the bands of women on bikes who ride the streets and stop assaults. I won't link because holy moly trigger warning but if you want to see it on youtube the awesome band of women arrive at the 9min30 sec point.
posted by chapps at 1:26 PM on March 25, 2016


I thought in Canada that surprise evidence wasn't allowed? Don't both parties have to share everything they have in advance of the trial?

Unless Canada is very different than the United States no, no they don't. It would surprise me very much if this were the case.


Thanks Justinian. You are right it is a one-way rule in Canada where the Crown must provide all the evidence to the defence, but not the other way around. I hadn't known that.

I just watched this CBC interview with the women and with some lawyers who work on the crown side and it made it much more clear what the process is... and why the Crown was surprised by what came out. It is worth the time to watch this.
posted by chapps at 1:31 PM on March 25, 2016 [4 favorites]


i've always dreamed of some combination of anti-suffragette posterwomen, red hat society ladies, and some tankgirl/riot grrrl/transliberation/women black panthers type group where we file our teeth to points, turn our pupils red, and walk down the street, elbows linked, melting catcallers and mansplainers with our death glares*.



*note for those very worried about the fanciful reactions of survivors, i know the dangers of teeth filing, tanks, and glaring people to death - worry not!
posted by nadawi at 1:46 PM on March 25, 2016 [8 favorites]


nadawi: imma report you to the government SEE IF I DON'T
posted by XtinaS at 2:11 PM on March 25, 2016 [3 favorites]


Mod note: Bumpy hashing it out so far notwithstanding, probably this is gonna go a little better if we just let the is-it-a-literal-threat-of-vigilantism-or-not stuff drop at this point all around.
posted by cortex (staff) at 2:20 PM on March 25, 2016 [4 favorites]


The reactions on my social media feed, many of them provoked by one person with a lot of cultural capital and a grudge against what he feels is 'a society of victimhood' have meant that I've now had to declare a three day weekend away from Facebook. It really hurts my soul to find out that so many people who declare themselves progressive or feminists, and so many of my fellow women feel that they can raise themselves up as paragons of the administration of justice by judging the women involved in the Ghomeshi case. I had shared some of my personal experiences of sexual assault (without too much detail ) in the hope that it would make people reconsider. Instead I was accused of passive aggressive emotional blackmail, called a bitch, and cited as an example of a 'crazy feminist'. What particularly hurt was that many of these FB friends were white cis gay men who refuse to believe that they enjoy any privilege whatsoever. I've spent many years advocating for gay rights and have taken in teens thrown out by their parents for being gay. I've been a vocal and staunch supporter of their cause and I'm shocked and saddened that they still find it so difficult to empathize with women about something that happens to far too many of us. I'm also saddened that some women feel that because it hasn't happened to them that the people who have experienced assault must be exaggerating or should 'just get over it already'.
posted by alltomorrowsparties at 2:36 PM on March 25, 2016 [7 favorites]


white cis gay men who refuse to believe that they enjoy any privilege whatsoever

Yeah, that is a major problem we have. It's playing out right now in Toronto with white cis gay dudes whining that ACT is doing focus groups on mental health issues with some specifically for men of colour and trans men. /derail
posted by feckless fecal fear mongering at 2:55 PM on March 25, 2016 [4 favorites]


I not only think there was nothing wrong with a rage fueled comment about looking into vigalanteism if the commenter had been attacked and so poorly served by the "justice" system, I honestly would have a very difficult time disapproving of an actual vigilante who killed men who got out of rape charges in judicially wrong ways.

Vigalanteism isn't good, but what we have now is a system where men can rape with virtual impunity and women who seek justice are not merely not finding justice but are at times driven to suicide thanks to society rising up in defense of their rapists and attacking the victim. Something has to change. I'd vastly rather that change be legal, but absent that what are victims supposed to do, just be good quiet girls and accept that their rapists are celebrated while they are reviled?
posted by sotonohito at 3:52 PM on March 25, 2016 [6 favorites]


I wonder how much responsibility for the ineffectiveness of the prosecution can be blamed on Harper. His government criminalized a large number of actions and increased penalties for a bunch more without as far as I know proportionally increasing spending on courts.
posted by Mitheral at 5:30 PM on March 25, 2016


I heard that the court challenges funding programme just got some funding back in the budget but haven't read the details yet.
posted by chapps at 6:17 PM on March 25, 2016


Mod note: One comment deleted. Let's avoid further derailing about vigilantism, please.
posted by taz (staff) at 11:10 PM on March 25, 2016


I'm not sure if everyone here is aware of it, but in this trial (I understand there will be others) Ghoneshi was not charged with rape, or anything that most of us would consider to be rape. The acts that he was charged with committing included choking, slapping, hair-pulling, and hitting. The fact that each allegation of violence occurred in an intimate situation makes them sexual assaults, even though (as I understand it) there was no sexual intercourse, or even an attempt to begin the preliminary stages of intercourse. As the judge said,
"Sexual assault" as defined in our Criminal Code covers a very broad spectrum of offensive activity; everything from an uninvited sexual touching to a brutal rape [...]
This is not an attempt to defend Ghoneshi. I would personally be willing to bet that all the complainants actually were attacked by under circumstances similar to the ones they described. I'm disappointed that he was acquitted on charges of sexual assault that I believe actually occurred, but it would be worse (IMO) if the actions for which he was charged had included rape.
posted by Joe in Australia at 4:28 AM on March 26, 2016 [1 favorite]


Unless I'm mistaken, Canada doesn't have a charge of 'rape.' We have sexual assault, only.
posted by feckless fecal fear mongering at 5:34 AM on March 26, 2016 [4 favorites]


Yes, that's what the judge said. A lot of people here are outraged by different things, like the judge's apparent focus on victims' behavior after experiencing sexualised violence, or the way they were effectively condemned in the verdict. But other commentators seem to think that Ghoneshi had been charged with rape so just in case it makes any of them feel better ... he isn't someone who has escaped conviction for a charge of rape. If he has engaged in nonconsensual intercourse/penetration/rape1 he can still be prosecuted and he can still be convicted.

1 I haven't been following the story and I have no knowledge one way or the other.
posted by Joe in Australia at 6:34 AM on March 26, 2016


Feckless has it right... There is no "rape" crime in law in Canada, we use the term sexual assault, which include rape as you describe it in the spectrum. This was a progressive change to expand what is considered a sexual violation.

There are different types, such as "aggravated sexual assault", similar to murder.

There is certainly another sexual assault case coming.
posted by chapps at 7:14 AM on March 26, 2016 [3 favorites]




" Before we went on air, we chatted for a few minutes. Then Ghomeshi smiled and said, "Man, you are just my type. Funny, sexy, just the right amount of damage." And then we went on air. ......... If you can't understand why this shook me, I'm not sure you deserve for me to explain it to you. But here's something: I've struggled my whole life with depression. My blacks are blue black. This is not the first time a guy has "typed" me as "damaged" in a sexual way. I've come to expect it in a bar. I never expected it in a professional situation, pre-interview, with producers in the room. I had to hold my hands under the table to keep them from shaking."
posted by Rumple at 9:18 AM on March 26, 2016 [16 favorites]


I've felt for a while the feminism was about to re-explode onto to scene with a force I hadn't seen in 20 years.you can see that signs on campus where I work, anyway... And now this woman's blog is what every woman I know sounds like right now.

"So I know perhaps the evidence wasn’t there, or that the burden of proof wasn’t met. And I don’t fucking care. This isn’t about this one case. This case was inevitable, like watching a lemming marching to its doom.

It’s every fucking time. Every time. The mundanity of the oppression, the predictability of the reaction, the backlash that follows.
"
posted by chapps at 10:37 AM on March 26, 2016 [8 favorites]


the lemming metaphor is especially apt since those making 'white wilderness' had already decided on what result they wanted so they staged the scene and threw the lemmings off the fucking cliff - now if that's not a description for a rape trial, i don't know what is.
posted by nadawi at 11:27 AM on March 26, 2016 [2 favorites]


I am sitting her, jaw dropping, watching CBC's The National present a long segment on 'Jian Gomeshi: What do men think." The female interviewer has said 10 words.
posted by lesbiassparrow at 10:26 PM on March 27, 2016 [5 favorites]




This is about Trump's campaign manager, but i think it has a lot of parallels to this discussion:

@mckinneykelsy:
Think just for a second about the narrative around the abuse of a woman:

-she didn't yell
-she made up the story
-she had bruises already

And this is for an assault on a woman that took place in public, has witnesses, and was caught on tape from a man running for president.

You don't understand why women don't report assault. Here's your fucking answer.
posted by zombieflanders at 2:22 PM on March 29, 2016 [10 favorites]


Jian Ghomeshi's lawyer, Marie Henein, speaks to Peter Mansbridge

"#Ibelievesurvivors is not a legal principle".

Well worth watching this 20 minute interview.
posted by Rumple at 9:43 AM on March 30, 2016 [2 favorites]


Nah, I'll pass. Especially when it was knives out for Lucy DeCoutere in most media, but I'm not giving Henein a pass. They may have eventually fired him, but the CBC enabled Ghomeshi for years. Fuck that.
posted by Kitteh at 9:49 AM on March 30, 2016 [2 favorites]


Listen to Julie Lalonde (previously) discuss the verdict on her radio show instead.
posted by Kitteh at 9:56 AM on March 30, 2016


"#Ibelievesurvivors is not a legal principle".

It fucking well needs to be, given the statistically tiny percentage of false accusations and the only slightly less tiny rate of conviction.
posted by feckless fecal fear mongering at 10:09 AM on March 30, 2016 [2 favorites]


It fucking well needs to be, given the statistically tiny percentage of false accusations and the only slightly less tiny rate of conviction.

How would that legal principal work, exactly?

Like Heinen, I have trouble figuring out a way to always believe victims that doesn't run afoul of the presumption of innocence.

Even if 99.999% of accusers are telling the truth, the 0.001% chance means that the accused needs to be allowed to mount a vigorous defense. Which will include, of course, challenging belief in the claims of the victim.
posted by sparklemotion at 11:33 AM on March 30, 2016 [2 favorites]


Also, even if there aren't many false accusations now, I'm pretty sure there would be lots if you could use it as a free, safe "send someone I don't like to jail." button.
posted by Mitrovarr at 11:38 AM on March 30, 2016 [1 favorite]


I'm also not sure that it's really fair to assume that large numbers of folks are out there just waiting for a consequence-free way to send people to jail.
posted by sparklemotion at 11:46 AM on March 30, 2016


"#Ibelievesurvivors is not a legal principle".

Isn't it, though? I mean, it's not like the law specifically says that rape is the one area where juries aren't allowed to believe witness testimony. It's the bullshit around the legal principle of testimony that's the problem here.
posted by Etrigan at 11:51 AM on March 30, 2016 [2 favorites]


I'm also not sure that it's really fair to assume that large numbers of folks are out there just waiting for a consequence-free way to send people to jail.

Are you joking? Ambitious people could dispose of bosses and coworkers. Anyone in a custody dispute could do it for an instant win. Angry at your ex? Free revenge! Get accused yourself? Counter-accuse your accuser for instant retaliation! It would be perfect blackmail material against just about anyone. I mean, the list just goes on. It would be completely absurd.
posted by Mitrovarr at 11:55 AM on March 30, 2016 [1 favorite]


Yes, and holding up a collection of people as more belief-worthy due to their membership in group X (and I myself am a member of the group in question) makes me extremely uncomfortable. Women are human beings and are not special goddesses and beings of light. The very notion is fucking infantilizing.

Sexual assault cases will always and forever be fraught due to the nature of the crimes. I don't know the answer to this problem – I don't think there is one – and I don't think there will ever be a solution that everyone will be happy with.

Henein is right about sitting around on your Couch of Outrage, tweeting into the ether - it will change nothing.
posted by Klaxon Aoooogah at 12:21 PM on March 30, 2016


Ambitious people could dispose of bosses and coworkers. Anyone in a custody dispute could do it for an instant win. Angry at your ex? Free revenge! Get accused yourself? Counter-accuse your accuser for instant retaliation! It would be perfect blackmail material against just about anyone. I mean, the list just goes on. It would be completely absurd.

It actually already is completely absurd, because you just made it up. This world exists entirely within the bounds of your imagination.

The specter of a hypothetical would-be army of false accusers is always raised whenever anyone suggests that our legal system could do more to support victims of sexual assault, which reminds me of this MeTa, where I made this comment, which I think holds just as true here: "[An] imaginary imminent wave of false accusations will necessarily require a wave of false accusers. Ultimately, men who rush to raise the "but what about the falsely accused men?!" flag in discussions about rape are admitting to a belief that there is a not-insignificant number of women out there champing at the bit for more anti-rape laws to be passed because it will increase their chances of success when it comes to filing false rape accusations. And these dudes don't want to remind us that people lie, they want to remind us that women lie, and more specifically that women lie about rape. (IBTP.)

I want to be snarky or funny or light-hearted, but when it comes to dealing with a group of people given to behaving as though there's a bunch of bogeywomen hiding out under cover, just waiting until the time is right and they can start falsely accusing men of rape, and that these bogeywomen wield such great power that they must be invoked every time a real, live woman is speaking about her own experiences with rape, assault, or harassment... all I can do is feel sorry for them, I guess, because that's a hell of a thing for men to believe about women they share the world with."
posted by amnesia and magnets at 12:28 PM on March 30, 2016 [9 favorites]


Jian Ghomeshi's lawyer, Marie Henein, speaks to Peter Mansbridge

Watched it over lunch today. She doubles down on the defense that the current system is fair. Her only comment is that the justice system suffers from resource issues, especially in the lower profile cases. She seems to think the Ghomeshi case was handled just fine by the court.
posted by bonehead at 12:32 PM on March 30, 2016


[False allegations of abuse] actually already is completely absurd, because you just made it up. This world exists entirely within the bounds of your imagination.

It's really hard to find any decent stats on this because of the pollution of the field by MRA's, but it does happen in real cases. There's an example in this report here. And this is much less gendered than one might think:

And while fathers' rights activists like to make the point that more men than women are charged, anecdotal reports from lawyers - there are no official statistics on false charges of domestic abuse - suggest that men are as likely to lay false charges as women.

This isn't about just protecting some bent-feelings MRAs, it's about keeping a significant abuse of the law from being a major problem for all genders.
posted by bonehead at 12:38 PM on March 30, 2016


Yes, and holding up a collection of people as more belief-worthy due to their membership in group X (and I myself am a member of the group in question) makes me extremely uncomfortable. Women are human beings and are not special goddesses and beings of light. The very notion is fucking infantilizing.

The reason I believe women who say they were assaulted is because everything but the most inflated, invented MRA bullshit statistics say that they're far far more likely to be telling the truth. Characterizing that is "infantilizing" is denying the reality of what actually happens.
posted by zombieflanders at 12:40 PM on March 30, 2016 [7 favorites]


Yes, and holding up a collection of people as more belief-worthy due to their membership in group X (and I myself am a member of the group in question) makes me extremely uncomfortable. Women are human beings and are not special goddesses and beings of light. The very notion is fucking infantilizing.

men can be victims too. nb people can be victims too. it's very hard to get the crimes against them recognized though because the same stigma that harms victims who are women is heaped even stronger against them (men especially). trying to find a way to get society to believe victims, take rape seriously, find a way to prosecute it, find a way to reduce victim numbers isn't something we want because we think women are goddesses, it's something we want because there's too many victims of sexualized violence and not enough punishment for the perpetrators.
posted by nadawi at 12:43 PM on March 30, 2016 [9 favorites]


It actually already is completely absurd, because you just made it up. This world exists entirely within the bounds of your imagination.

Well, yes. That was a hypothetical suggestion of how things would go if all it took to get a rape conviction was an accusation. I am not saying false accusations are common in the real world.
posted by Mitrovarr at 12:48 PM on March 30, 2016


trying to find a way to get society to believe victims, take rape seriously, find a way to prosecute it, find a way to reduce victim numbers isn't something we want because we think women are goddesses, it's something we want because there's too many victims of sexualized violence and not enough punishment for the perpetrators.

Yes, but there's the exact problem..."belief" that something happened to someone isn't a sufficient legal tool by which to bring a perpetrator to justice. How could it be any different? Can you think of all the ways that this could be abused? If we use "I believe the victim" in sexual assault cases, then why not all cases? The notion is absurd - it basically drags the entire legal system back to the middle ages which produced witch hunts based on the belief that women (and some men) were witches. Horrific.
posted by Klaxon Aoooogah at 1:00 PM on March 30, 2016 [1 favorite]


That was a hypothetical suggestion of how things would go if all it took to get a rape conviction was an accusation.

OK, but considering no one in the history of ever has earnestly suggested adjusting the legal systems of the world to make it so "all it [takes] to get a rape conviction [is] an accusation," why is a hypothetical army of false accusers always considered so relevant? It's like if I went into a discussion about voter disenfranchisement to roll out my suggestion of how things would go if the electoral college was replaced with a call-in system a la "American Idol."

The rush to ad absurdum slippery slope hypotheticals specifically where giving a modicum of credence to women's testimony is concerned bewilders me.
posted by amnesia and magnets at 1:06 PM on March 30, 2016 [5 favorites]


"belief" that something happened to someone isn't a sufficient legal tool by which to bring a perpetrator to justice.

Maybe rather than "I believe the victim," a better way to put it is "I do not trust a system of justice that has been erected to disbelieve, misunderstand, tear down, and emotionally eviscerate accusers at every opportunity."

In other words, you hear the words "I believe the victim" and respond that this is not an adequate system of justice; implication is that the system we have is adequate. I hear the words and think they're a response to an already deeply inadequate system of justice - an attempt to rebalance, if not in a court of law, then at least in the conversations we're having.
posted by naju at 1:17 PM on March 30, 2016 [8 favorites]


"I do not trust a system of justice that has been erected to disbelieve, misunderstand, tear down, and emotionally eviscerate accusers at every opportunity."

I don't agree with your basic premise (a system of justice that has been erected to disbelieve, misunderstand, etc). The justice system here in Canada is not perfect, as no human endeavor is, but framing the entirety of the legal system as "out to get" people is not something I see as a reality-based assessment. I'm having a hard time understanding how your proposed new system of justice operates if not on evidence. It can't. Here's your system:

Accuser: X person committed Y crimes against me.
Judge: Accused is guilty, based on the word of accuser.

It's frankly absurd.
posted by Klaxon Aoooogah at 1:40 PM on March 30, 2016


Yes, but there's the exact problem..."belief" that something happened to someone isn't a sufficient legal tool by which to bring a perpetrator to justice.

that's not what i suggested. i said that society needs to do a better job believing victims which will lead to finding better ways to prosecute rapists and reduce the numbers of victims over all. i have never suggested that a victim shows up to court, says 'he raped me,' and the accused is locked up forever. no one is suggesting this.

frankly, you are the one being absurd.
posted by nadawi at 1:42 PM on March 30, 2016 [6 favorites]


the legal system with regard to sexualized violence cannot be fixed until the underlying societal problems are brought into the light. the social groups that protected ghomeshi are just as guilty as the justice system in my mind. rape culture is the disease, the failure of the courts to protect victims and prosecute rapists is but one symptom.
posted by nadawi at 1:45 PM on March 30, 2016 [7 favorites]


The notion is absurd - it basically drags the entire legal system back to the middle ages which produced witch hunts based on the belief that women (and some men) were witches. Horrific.

I like that your example, your parallel "thought experiment," is to imagine that the accused (men) will be treated like women historically have been. You're right. It is a horror to be treated like a woman.
posted by amanda at 1:46 PM on March 30, 2016 [8 favorites]


As I said above, I believe Ghomeshi's victims. But if you read the transcript, the very first incident simply could not have taken place at the time or in the way the complainant alleged. L.R. remembered (and attached a lot of significance to) the fact that he was driving a bright yellow Volkswagen "Love Bug" car because "it contributed to her impression of his softness, his kindness and generally, that it was safe to be with him". The car was where she was (allegedly) assaulted by having her head thrust against its window; she had accompanied him partly because of the misleading impression created by its perceived friendliness; there was every reason for her to remember it. But Ghomeshi didn't own the car at that time - this must be a conflated or a false memory. L.R. is either remembering a different event and retrojecting it back to her first date, or retrojecting her memories of the car and its associations back to the occasion of the first assault.

When I say I believe that L.R. is telling the truth I mean that I believe the complaints reflect a pattern of violent behavior by Ghomeshi towards her and the other complainants. Within that context, any particular complaint reflects the complainant's experiences as a whole, even if the details are wrong or conflated. So how do we want our legal system to treat L.R.'s complaint? Do we want to say that Ghomeshi's a jerk, and therefore we punish him for his pattern of behavior even if we can't prove that any individual allegation actually happened? Or do we require proof for each act, even though that necessarily means that low-level assaults of this sort will almost always remain unpunished? Whatever we choose, though, it's going to be something that affects all sorts of defendants in all sorts of cases, and most of them won't be violent boyfriends.
posted by Joe in Australia at 1:51 PM on March 30, 2016 [3 favorites]


i said that society needs to do a better job believing victims which will lead to finding better ways to prosecute rapists and reduce the numbers of victims over all.

How, specifically? How is this done in the real world?
posted by Klaxon Aoooogah at 1:52 PM on March 30, 2016


that's not what i suggested. i said that society needs to do a better job believing victims which will lead to finding better ways to prosecute rapists and reduce the numbers of victims over all. i have never suggested that a victim shows up to court, says 'he raped me,' and the accused is locked up forever. no one is suggesting this.


When people are presenting arguments in favor of (a) severely limiting witness impeachment, (b) shifting the burden of persuasion to the defendant, and (c) curtailing/questioning the right of defendants not to testify, I think this suggestion is in the subtext.

More to the point, what should a defendant have to "prove" in order to overcome a complaining witness's testimony against him? It's burden shifting at its most basic level.
posted by enjoymoreradio at 2:03 PM on March 30, 2016


but framing the entirety of the legal system as "out to get" people is not something I see as a reality-based assessment.

Actors within the legal system are not cartoon villains "out to get" anyone. I did not even use those words. What we have is a culture so immersed in certain ideas around how men behave and how women ought to behave and what the "right" way to be a victim is, and what societal standards of wrongdoing are and how they relate to gender, that it absolutely infects every inch of the legal system and the people who act within it, interpret our laws, and enforce them. A society with toxic ideas around rape leads to a legal system with toxic ideas around rape. Nothing happens in a vaccuum.

So what do we propose? Not a legal system in which all accused are de facto guilty. Rather, we seek changing the toxic ideas at the societal root. This is what we're hoping to do in these endless conversations and agitations. We would also do well to examine and seek a change in the legal standards around evidence, cross-examination of witnesses, jury instructions, etc in rape and sexual assault cases.

None of this is absurd or unreasonable.
posted by naju at 2:03 PM on March 30, 2016 [7 favorites]


I mean, re: absurdity - eminent legal scholars vastly more informed than you or I have spent their careers grappling with these exact same issues and have publicly advocated changes, so stop acting like this is all soooo childish and beyond consideration.
posted by naju at 2:08 PM on March 30, 2016 [6 favorites]


How, specifically? How is this done in the real world?

off the tippy top of my head -

families and churches stop telling victims of childhood sexual abuse that it's "a family matter"
missing stairs stop being covered for (and social groups stop pushing out the accused because 'who knows what happened')
non-victims stop explaining to victims about what must have really happened
rape kits get tested
we stop telling women it's their responsibility to not get raped
girls are taught their wishes hopes dreams and pleasure are important
society stops advocating boys will be boys
we acknowledge that boys and men can be victims too and study ways to reduce stigma for them reporting
assholes like this never become detectives
teach consent early and often so adults aren't wandering around out there thinking that men can get 'too turned on to stop'
stop giving equal space in discussions to false accusations, as if they happen at the same amounts
acknowledge that a person's past promiscuity has no bearing on whether or not they were raped
people stop acting like where things are at now is acceptable and wanting change is absurd
posted by nadawi at 2:10 PM on March 30, 2016 [12 favorites]


I never meant to imply that I wasn't for any of that stuff. Just that the legal system cannot "just believe victims" for a reason.
posted by Mitrovarr at 2:13 PM on March 30, 2016 [2 favorites]


i mean really, where we're at right now, by the time a rape accusation gets to trial, the victim has already been failed in a million different ways. fact of the matter is a lot of people don't make it past the first hurdle - admitting to themselves and others that they were raped - and most don't make it past the second - reporting the rape and naming the rapist. the fact that ghomeshi's victims didn't think they could leave his place and go straight to cops is a huge problem. what the victim blaming judge steeped in rape culture said from the bench is just the cherry on the shit sundae.
posted by nadawi at 2:15 PM on March 30, 2016 [6 favorites]


It depresses the shit out of me that anyone could believe that the legal system as it exists today, particularly when it comes to the treatment of victims of rape and sexual assault, is the absolute very most reasonable, fair, and even-handed system of justice that society can possibly manage without falling off a cliff into a world where everyone who is accused of assault is instantaneously imprisoned upon receipt of the accusation. And it surprises me more than it probably should to see the suggestion that maybe we could try not treating rape victims (specifically, and much more so than victims of any other crime) like they're crazy, lying, or both equated with a return to literal witch hunts. Whose interests does that false equivalence serve, and why are they worth serving?
posted by amnesia and magnets at 2:22 PM on March 30, 2016 [8 favorites]


Even if all the above come to pass which I agree would be a good thing (however unlikely for some of them)...in a courtroom it still boils down to evidence. What else is there with which to convict someone? Even in the most perfectly enlightened, progressive society, crime happens. On what basis to we find people guilty?
posted by Klaxon Aoooogah at 2:50 PM on March 30, 2016


Fix all the rest of that stuff, and I'll be really surprised if judges and juries have nearly as much trouble finding people guilty based off of witness testimony.
posted by hydropsyche at 2:56 PM on March 30, 2016 [1 favorite]


in a courtroom it still boils down to evidence

What about testimony and bias, narratives and how to dissect them, the weight of that evidence, the evidentiary standards we use to make sense of it, what evidence to admit and why, whether evidence is prejudicial to juries... are you really that ignorant of the complexity of judicial systems and the millions of ways they can unduly shift the burden one way or another?
posted by naju at 2:58 PM on March 30, 2016 [5 favorites]


How about if those of you "No, but"-ing instead try practicing some "Yes, and..." Because no matter how you protest that you really don't think the system is perfect the way it is and yes it needs changing, every comment you make that "No, but"s someone proposing changes, you sound like you're defending the system as it stands.
posted by rtha at 3:06 PM on March 30, 2016 [5 favorites]


I don't see anyone proposing concrete changes except basically "fix the culture". Yeah, well, unfortunately we have to live in the world as it exists today until utopia arrives. In terms of this particular trial, I don't see how it could have unfolded any other way. The 'testimony, narratives and how to dissect them, weight of evidence' etc... what does that mean in this particular case? Not admitting the old emails, photos, proof of post-contact between accuser and accused? What, exactly?
posted by Klaxon Aoooogah at 3:19 PM on March 30, 2016


Here is one concrete evidentiary change that comes to mind that would have significantly altered the outcome of this case.
Section 276 explicitly applies to “specific instances of sexual activity.” Whether the complainant has engaged in sexual activity before or after the alleged offence with the accused (or others) must not, “by reason of the sexual nature of that activity”, be considered relevant to whether she consented to the sexual activity in question or to whether she should be believed as a witness.

I would argue that the same rationale underlying this section should apply to communications and other conduct of a sexual nature in which the complainant engages, either before or after the alleged incident. For example, we should not consider her more likely to have consented on the occasion in question, or to be less credible, simply because she has engaged in sexualized communications with the accused after the fact. Our focus must still be on whether there was consent at the time of the alleged incident.
posted by naju at 3:26 PM on March 30, 2016 [4 favorites]


the fact that you think only in a utopia can rape be taken seriously pretty much says it all. "the culture" is being "fixed" all the time. this is one of the reasons that way up thread i brought up the fact that marital rape used to not be illegal and now it is - that is changing the culture and the law following. allowing women to vote, own property, be in bars, have the ability to say no and that be supposedly a legally enforceable thing, wear pants, be gay, choose their partners at all, have sex before marriage, choose abortion - all of those are vast cultural changes that have been ongoing and some of them very recent. insisting that where things are at now is just the way it is and nothing could possibly change is another thing that needs to change. and look at that! change begins within us all.
posted by nadawi at 3:31 PM on March 30, 2016 [9 favorites]


also - one of my concrete suggestions (which you dismissed seemingly whole cloth) was test rape kits and if you can't figure out how that'd help at trial, then i'm not sure what you're looking for.
posted by nadawi at 3:36 PM on March 30, 2016 [7 favorites]


When I say I would love it if the legal system believed victims of sexual assault, what I mean is that I would love it if the legal system 1) did not place LESS credibility on victim testimony when the victim behaves in ways which are typical of trauma victims, and 2) showed some understanding when sexual assault victims try to frame their testimony and their experience in a way that is more consistent with what I call the "Lifetime Movie Narrative" that we all know is what investigators, lawyers, judges, and juries want to hear, rather than using that to impeach their testimony.
posted by KathrynT at 4:00 PM on March 30, 2016 [8 favorites]


The rape kit thing, absolutely, but the circumstances of this trial did not involve rape kits. Part of the problem here is, what do we do about prosecuting sexualised violence that does not involve rape or anything else that leaves physical evidence.

I think the answer is to accept evidence that lends credibility to the complaint by reflecting a pattern of behavior or course of conduct, even when it doesn't speak directly to the act in question. I thought that Canada accepted evidence like that; if so, I don't know why the prosecution didn't try to lead it.
posted by Joe in Australia at 4:04 PM on March 30, 2016


well the person asking keeps switching from generally to this specific trial and i was answering generally. i think this trial was doomed from go because of rape culture and one way you start fixing rape culture is you do the bare basic thing of actually testing rape kits and acting on those results so that victims feel like reporting isn't a complete waste of time that will heap extra trauma on them and possibly ruin their lives. i have never officially reported my rapes and most victims i know have never reported theirs because we all see how the deck is stacked. if the system from cops who answer the phone on up to elected officials and judges actually took sexual violence seriously, i think the changes to the culture would come and more victims would feel safe reporting (and from both of those things, more convictions would follow).
posted by nadawi at 4:11 PM on March 30, 2016 [8 favorites]


framing the entirety of the legal system as "out to get" people is not something I see as a reality-based assessment.

That's probably because not a single comment you have made here has evinced any understanding of the reality of how sexual assault victims are treated by police, courts, media, and society.
posted by feckless fecal fear mongering at 6:40 PM on March 30, 2016 [4 favorites]


if the system from cops who answer the phone on up to elected officials and judges actually took sexual violence seriously

Yeah, they took it seriously enough to spend a metric tonne of taxpayer money on it. Look, I'm done having my words mischaracterized here. There were no rape kits involved in this case so I didn't comment on it. From the many links above on the specifics of this trial, anyone can see that there was no other option but to come out on the side of Ghomeshi. Belief is not enough, nor should it ever be.

Ghomeshi's next case will go very differently because there will be a chain of evidence and employer accountability. We will see what happens. Have a great evening, all.
posted by Klaxon Aoooogah at 6:50 PM on March 30, 2016


Where, pray tell, was this "metric tonne" of taxpayer money spent? Literally the only thing the Crown did was fail to prepare witnesses effectively. There was no extensive or expensive hunt for and analysis of evidence. The case came to trial in a reasonable time frame. Ghomeshi paid for his own counsel.

Perhaps a couple more PODs on duty outside Old City Hall to corral journalists. Beyond that I'm really hard pressed to see how this particular trial cost the taxpayers any more than any sexual assault trial. Less, in fact, because of no physical evidence.

Unless you know something about where all this imaginary money went?
posted by feckless fecal fear mongering at 7:03 PM on March 30, 2016 [3 favorites]


> Look, I'm done having my words mischaracterized here.

Turn this phrase into an exercise in empathy. Think about what this means when you are trying to communicate something terrible and traumatic that happened to you to people who have power, and that power is to not believe you, to make you feel even more powerless and traumatized, and adds to the weight of a system already set against you.
posted by rtha at 10:36 PM on March 30, 2016 [9 favorites]


"In her speech, Henein urged young female lawyers not to lose confidence in themselves or the Canadian justice system.

“Throughout your career in this profession, you will be told what you should do, how you should act, which way you should bend. Do not listen to any of it,” she said. “Do not be dissuaded by my experience. Do not for a moment be disheartened. I am not.”

Her advice follows a report by the Criminal Lawyers’ Association suggesting that women are dropping out of criminal law practice at higher rates than men. Most respondents to a CLA survey in December cited the unpredictability of work hours and income, and the difficulty of having kids while working in criminal law as probable reasons for quitting the profession.

At the gala, many of the young female lawyers said they look up to Henein."
posted by Rumple at 11:27 AM on March 31, 2016 [2 favorites]


“I think if a man had done it no one would have batted an eyelash. That’s just good lawyering. The fact that she did it in heels and a designer dress is icing on the cake for me.”

I'd bat one. When lawyers use received wisdom about how an abuse victim should behave that's in conflict with how abuse victims actually do behave to demolish witness credibility, I have a problem with the justice system and with any that defend it. That gap between opinion and reality is the manifestation of rape culture.

Henein certainly showed her willingness to use those lines of questioning in the trial transcripts, even if that wasn't determination in this case. In my view, that's what Henein is defending here, a system of justice that allows for systematic application of prejudice that's out of step with the reality abuse victim behaviours, as demonstrated by sociology and science. It's not something I'd be proud of.
posted by bonehead at 11:47 AM on March 31, 2016 [5 favorites]


10 questions for Jian Ghomeshi:
1. Mr. Ghomeshi, why do you think so many women — not just these three but easily a dozen more — came forward to the media with accounts of having been abused or assaulted by you? Is it your contention that every single one of these women was lying or mistaken or vengeful? If so, why would that be?

[...]

3. Could you help us understand what “consent” means to you? No one doubts that consenting sexual partners do all sorts of things that others view as weird or distasteful or dangerous. Did you obtain verbal consent every time you practiced rough sex?

[...]

6. Can you please tell the court of public opinion why you kept emails and in one case a written letter that were more than a decade old from women who seemed to have meant so little to you. How did you file these emails?
Of course he would never answer any of the questions in public, but they're good ones. (Why he kept emails could be that, like me, he never deletes email -- easy enough to prove.)
posted by jeather at 10:26 AM on April 7, 2016 [2 favorites]




Another prominent figure got away with it by using money and position to ride out the statute of limitations:

Prosecutors Reveal Former Speaker of the House Dennis Hastert Sexually Abused at Least 4 Teenage Boys

The 'Stunning Hypocrisy' of Dennis Hastert: Speaker, Coach, Sexual Abuser
posted by homunculus at 8:04 PM on April 9, 2016 [3 favorites]


I wish Hastert could be prosecuted for the substantive crime, but his downfall is almost poetic: he's being prosecuted for financial crimes he (allegedly) committed while trying to bribe one of his victims. So even if he had owned his sexual crimes he might have escaped scot-free, since the time for prosecution had expired. But he was so anxious to conceal his pederasty that he went out and (allegedly) and committed further crimes, thereby bringing about his downfall. If he's convicted I hope he gets a lengthy period to reflect on the fact that now he's a pervert and a felon.
posted by Joe in Australia at 8:23 PM on April 9, 2016 [3 favorites]


Remember that XO Jane It Happened to Me that was the dismissed beginnings of Ghomeshi's predatory nature? The original author writes in Chatelaine what it was like for her before everyone else came forward.
posted by Kitteh at 8:33 AM on April 14, 2016 [2 favorites]


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