Jian Ghomeshi made me remember all the times I was sexually violated
February 9, 2016 8:40 AM   Subscribe

In October 2014, eight women came forward to the Toronto Star stating that well-known CBC Radio host Jian Ghomeshi had assaulted them. [Previously on Metafilter] As the case against Ghomeshi finally went to trial this month, it has prompted criticism over the way the defense has treated the women testifying against him. Canadian radio host and therapist Svea Vikander has decided to share her personal experiences of sexual harassment and assault, one for each day of February: "This trial is not only about a man who violated the four women pressing charges, but about whether we, as a society, trust women who tell...It's personal for me...But I can't not do it. The Ghomeshi scandal has one hell of an undertow."

The defense lawyer, Marie Heinen, has been accused of "whacking" the women testifying against her client--that is, attempting to destroy their credibility by questioning inconsistencies in the details of their accounts and producing evidence of friendly and sexually explicit exchanges between the women and Ghomeshi, after the dates they said the assaults took place.

Psychologists and therapists point out that the witnesses' responses are absolutely consistent with those who have experienced sexual assault and trauma.

As for "whacking," David M. Tanovich argues that such tactics are unethical and should be barred from use in sexual assault cases: “Whack” No More: Infusing Equality into the Ethics of Defence Lawyering in Sexual Assault Cases.
posted by hurdy gurdy girl (233 comments total) 40 users marked this as a favorite
 
My apologies: in case it's not clear, the title of the post is actually a quote--it's the title of Svea Vikander's article.
posted by hurdy gurdy girl at 8:42 AM on February 9, 2016


The Star, whom I generally like as a newspaper, came under fire wanting to publish bikini pics of one of the women. I was like, WTF does that even have to do with her testimony.

There's been the usual outpouring of shitty things said about these women and women in general on social media because of the horribly effective way his defense attorney has gone after these women. I honestly believe he's gonna walk because the system is so effectively rigged to diminish sexual assault on women. I desperately want to be proved wrong.
posted by Kitteh at 8:44 AM on February 9, 2016 [11 favorites]


Christie Blatchford's reporting, which I won't link to, has been particularly (predictably) appalling.
posted by The Card Cheat at 8:47 AM on February 9, 2016 [10 favorites]


I've had to keep this line in my back pocket, and I've sadly had to use it all too often in the last few days:

What the women he's on trial for assaulting did (or allegedly did) before or after the assault occurred is irrelevant. Were they assaulted? Did they consent to being choked and hit? If the answers are "Yes" and "No," respectively, the assaults took place.

But the same people I've had to trot that line out with are the same people who will feign confusion about why women might hesitate to report these things.

Canadaland can be hit and miss, but this is a very, very good point:

"Ghomeshi kept files on women in case they would later accuse him of violence."

posted by mandolin conspiracy at 8:52 AM on February 9, 2016 [37 favorites]


The University of Calgary Faculty of Law blog has been excellent on the subject of this trial. Here is Jennifer Koshan's analysis from yesterday of why the focus on the complainants' communications and interactions with Ghomeshi post-assault is wrongheaded. Another post by her from last week is a detailed discussion of choking and the law. Joshua Sealy-Harrington wrote about the media narrative and reconciling the presumption of innocence for the accused with robust support for victims of sexual assault in October of 2014. Alice Woolley wrote on professional ethics and representing people in situations like Ghomeshi's a couple of weeks later. (Professors Woolley and Koshan were two of the signatories to the complaint against Judge Camp last year.)
posted by there's no crying in espionage at 8:53 AM on February 9, 2016 [6 favorites]


I'm kind of astounded the that crown only intended to call the three victims to the stand. I don't know who this Nova Scotian they're planning on calling now is, but I really wish they would (and would have planned from the beginning to) call an expert witness on women's reactions to sexual assault, and especially the sort WTF-was-that-all-about kind of sexual assault that we're talking about here. I hope the judge has been to lots of trials and already knows this stuff, but I would really prefer it if this were a jury trial with some women doing to evaluating. Of course, that's exactly why there's no jury here, I guess.
posted by If only I had a penguin... at 8:53 AM on February 9, 2016


I predict the lack of a jury will ultimately work against Ghomeshi. The judge will see though all this testimonial whitewash.
posted by davebush at 9:01 AM on February 9, 2016 [12 favorites]


Actually, no jury is a feature here, not a bug. Canadian judges aren't elected, they're virtually always lawyers, or at least people with law degrees. And while yes, there is the occasional judge who gets it horribly wrong (that wretched misogynist assbag in Alberta e.g.), judges here are much more likely to rule on the law than to be swayed by bafflegab like juries are.

Oh and Heinen is a vile and despicable human being for what she's doing. It's absolutely telling that she is doing nothing to question whether the assaults happened. Which matters, because outside specific contexts like boxing, hockey, football it is simply not possible to consent to being assaulted in Canada. (Nor, technically, can one consent to being tied up. The law hasn't caught up with the relative mainstreaming of BDSM practices. Not that Ghomeshi was engaging in BDSM, he was assaulting these women.)
posted by feckless fecal fear mongering at 9:01 AM on February 9, 2016 [13 favorites]


Hearing a lot of "well, why did they go back out with him or continue to see him if he assaulted them" tripe on Twitter led me to finally talk about a couple of instances in my life that I have never talked about because a) shame, and b) knowing that people would say something similar about my own actions.
posted by Kitteh at 9:02 AM on February 9, 2016 [24 favorites]


Has the crown suggested at any point that Ghomeshi didn't do the particular acts that would be assault (i.e. that he didn't punch?). Have they suggested that he actually asked if it would be ok to punch? It seems like if he concedes the punching and the lack of consent, then isn't he essentially admitting guilt?
posted by If only I had a penguin... at 9:03 AM on February 9, 2016 [1 favorite]


jinx
posted by feckless fecal fear mongering at 9:03 AM on February 9, 2016


Yes, keep in mind there is no jury, just a judge very familiar with dirty tricks to taint witnesses. While some of this might sway a jury unfamiliar with rules of evidence and technical elements of the crime, I think it's like to just annoy the judge.

I'm a little unclear on whether this is a mixed PR/legal strategy or whether Ghomeshi is directing his own defense or what, because it doesn't seem like a very strong legal strategy to me.
posted by Eyebrows McGee at 9:03 AM on February 9, 2016 [8 favorites]


Oh, believe me, this is all very strongly calculated, from his austere suits, his decision to not take the stand, and being walked out with his mother at the end of every court day. He is definitely presenting himself as a non-threatening person.
posted by Kitteh at 9:04 AM on February 9, 2016 [7 favorites]


Why would the Crown suggest that he hadn't done these things? The Crown is the prosecution. (All law flows from the Throne; all criminal acts are technically acts against the Crown; criminal cases are listed as R(egina) v Ghomeshi; The Queen delegates her power to prosecute to Crown attorneys.)
posted by feckless fecal fear mongering at 9:06 AM on February 9, 2016 [1 favorite]


I've been waiting for this to reappear on the Blue, and I thank the OP for doing an excellent job on the post.

Let me start off by saying that:
1. I believe the women.

I am quite upset that the trial is such a shit-show. From my professional perspective, and at the risk of mansplaining, the defense has clearly done its homework, snd the prosecution hasn't. None of the post-assault behaviour should have been a surprise -- the prosecution should have discovered it, introduced it itself, and shaped the narrative. Whether that is the fault of the Crown, or of the cops, I have no idea, but someone didn't ask the right questions, or go beyond the answers given. This is basic, basic stuff, and is likely an insurmountable problem.

As for Henein, speaking professionally, she's running a master class on how to dissemble a witness. I can't fault her one bit -- this is her job, and she is doing it very, very well. She should never have been given the openings the prosecution afforded her, however.

As for 'whacking', I don't know. The problem may simply be that trusting the women is fundamentally irreconcilable with an adversarial justice system. The system we have designed is terrible for sexual assault cases, which is not to say I know what the fix is.

In the end, I'm not sure this prosecution isn't doing more harm than good. And again, #1, I believe the women.
posted by Capt. Renault at 9:06 AM on February 9, 2016 [22 favorites]


Following Julie LaLonde on Twitter around this has been really great as well as watching her deftly hit back at trolls.
posted by Kitteh at 9:08 AM on February 9, 2016 [2 favorites]


I wonder if the Crown didn't bring it up because, fuck Heinen, it is totally irrelevant what women did after being assaulted by this turd. Or maybe I'm being overly hopeful.
posted by feckless fecal fear mongering at 9:10 AM on February 9, 2016 [6 favorites]


The trial has definitely been a key in me finally getting the nerve to stand up and say that if your a male friend and don't believe these women then you are no longer a friend of mine as your comments show me your unsafe. Which of course led to a bunch of them declaring me "unfair" and "being swayed by the media". Which was sad because I hate to lose friends but at this point in my life as a survivor I'm exhausted of shoving it down. People who believe women lie to put themselves through all this garbage and pain for... whatever stupid reason... amaze me and I'm done with them. I've had to back away from coverage as it's too triggering but these women have my undying gratitude and respect.
posted by kanata at 9:14 AM on February 9, 2016 [39 favorites]


Sorry, yes I know the crown is the presecution. I meant the defence. I mean if they're saying he's not guilty then that seems to imply either it never happened or the women consented, and they're not arguing either of those two things as far as I can tell.
posted by If only I had a penguin... at 9:17 AM on February 9, 2016 [1 favorite]


Heinen is a vile and despicable human being for what she's doing.

I am not a fan of what's happening in this trial either, but I don't think this is a fair statement. She has an obligation to do her utmost for her client and vigorously pursue all defence options. This article is an interesting read on whether this type of defence should be allowed, but as long as it is, I am not too interested in bashing Marie Heinen for doing her job and am more interested in working on changing the law as it stands.

Also, as for how unprepared the Crown is, I was entirely in that camp until I read some articles that seemed to indicate he is somewhat at the mercy of the police investigation and that is where the case may have fallen down. Here is an example. How much of that is true and how much more the prosecutor could have done is something I'd be interested in hearing more about.
posted by hepta at 9:17 AM on February 9, 2016 [13 favorites]


Three other women told me similar stories, supported by evidence, of manipulation and entrapment. Ghomeshi would establish an electronic paper trail before the alleged violence took place and would make efforts to continue a correspondence afterwards. It followed a pattern.
[...]
If later they couldn't reconcile the incoherence of his behaviour and confronted him about it, he reminded his accusers that he had things on them: their texts, their nude pictures and videos, and the record of friendly contact after the fact, which he considered exculpatory.


jesus christ....
posted by suddenly, and without warning, at 9:18 AM on February 9, 2016 [13 favorites]


As for 'whacking', I don't know. The problem may simply be that trusting the women is fundamentally irreconcilable with an adversarial justice system. The system we have designed is terrible for sexual assault cases, which is not to say I know what the fix is.

The fix is simple - stop treating the "not guilty on account of the victim is a slut" defense as ethical. Stop ignoring the fact that women are often pressured by societal norms into diminishing assaults on their person. As people have pointed out, the fact that the women contacted him afterwards doesn't mean that the assault didn't happen - we just like to pretend that it does, because we would really like to not think to hard about the ramifications of the other side.
posted by NoxAeternum at 9:20 AM on February 9, 2016 [20 favorites]


Yeah, shit. It's almost like he'd studied the legal system as it currently exists and figured out how to game it. And by "almost" I mean "exactly."
posted by The Card Cheat at 9:20 AM on February 9, 2016 [34 favorites]


....and that right there tells me everything I need to know about him. A serial predator who carefully kept evidence on his victims in case any of them dared to say boo.
posted by Kitteh at 9:20 AM on February 9, 2016 [36 favorites]


I wonder if the Crown didn't bring it up because, fuck Heinen, it is totally irrelevant what women did after being assaulted by this turd. Or maybe I'm being overly hopeful.

If the Crown knew, I have to think they would have addressed it in examination in chief and given the witnesses a chance to explain it on their own terms, rather than have the defense introduce it (which you can safely assume they will) and make it look like the witnesses were trying to hide something. The Crown is at the mercy of the strengths and/or weaknesses of the police investigation.


The Star, whom I generally like as a newspaper, came under fire wanting to publish bikini pics of one of the women. I was like, WTF does that even have to do with her testimony.

The Star routinely fights against publication bans - they're probably the #1 newspaper in Canada for litigating publication bans. Not to say that the women's picture should have been published, but I wasn't surprised to see the Star try to get it out - I think they believe pretty strongly in open court.
posted by iona at 9:23 AM on February 9, 2016 [2 favorites]


I know that assaults are criminal regardless of the presence of consent, outside of BDSM - how does one draw that line? Are there legal precedents that have established such a line? Does BDSM vs. assault require explicit verbal consent beforehand, some kind of more or less formal agreement outlining particular practices in advance?

Also wonder whether the defense attorney is going to argue that it was reasonable for Ghomeshi to understand his victim's shocked responses to be consensual in nature - how much would that play a role in determining intent?

Capt. Renault - I have a feeling you might be right, regarding the practice of tearing victims apart in an adversarial system... in re the other Ghomeshi thread, I came across an alternative idea - self-quote: "Here, lawyer David Butt suggests offering victims the choice of a criminal or civil lawsuit (with both options conducted by the Crown). The idea is that civil suits have a lesser burden of proof ("balance of probabilities" vs. "beyond a reasonable doubt"), which might better accommodate the "she said / he said" nature of evidence common in many assaults. It seems sensible (to me at least)." Wonder what MeFi's legal minds think about this idea. Not that this proposal's at all helpful now :/

Thank you for this post, hurdy gurdy girl.
posted by cotton dress sock at 9:24 AM on February 9, 2016 [3 favorites]


I mean if they're saying he's not guilty then that seems to imply either it never happened or the women consented, and they're not arguing either of those two things as far as I can tell.

Seems like Heinen is trying to imply that they consented because of their post-trauma actions.

I am not a fan of what's happening in this trial either, but I don't think this is a fair statement. She has an obligation to do her utmost for her client and vigorously pursue all defence options.

Yeah to me that means using the law, not character assassination. Her job in defence is categorically not to get her client off, it's to establish a) the facts of what happened, and b) that the Crown and the police have done their jobs legally.

So, yeah, she's vile and despicable.

I know that assaults are criminal regardless of the presence of consent, outside of BDSM - how does one draw that line?

AFAIK, and IANAL, 'outside of BDSM' doesn't exist. I cannot, legally speaking, consent to you spanking me or tying me up or beating me with a bamboo cane.
posted by feckless fecal fear mongering at 9:26 AM on February 9, 2016 [8 favorites]


1. I believe the women.

2. I'll back up Cap'n Renault. This is how the Canadian judicial system works. It looks like Henein is using these "inconsistencies" to attack the credibility of the complainants. Without credibility, the case falls apart.

There is legislation in Canada that is supposed to prohibit inferences based on someone's sexual history (ss 276-277 of the Criminal Code).

Sorry I'm not giving the kind of quality comments Lemurrhea used to.
posted by LegallyBread at 9:26 AM on February 9, 2016 [7 favorites]


You know those assholes who call up their victims the next day and say "Gosh, I totally blacked out last night -- did I do anything untoward? I'm genuinely asking here, because hoo boy, I have no memories at all from approximately 10:37 p.m. until I woke up in my bed just now, and the very first thing I thought to do was call you and ask whether I might have crossed some line, even though I have totally never done anything like that before ever."?

Ghomeshi is like the evil Super Saiyan version of those assholes.
posted by Etrigan at 9:27 AM on February 9, 2016 [10 favorites]


Following Julie LaLonde on Twitter around this has been really great as well as watching her deftly hit back at trolls.

Everyone on MetaFilter who is also on Twitter should be following Julie LaLonde! She's a wonderful and brilliant person and provides intelligent insight into issues regarding: feminism, sexism, politics, & culture.

Also, Fuck Jian Ghomeshi and Bill Cosby.
posted by Fizz at 9:28 AM on February 9, 2016 [4 favorites]


This case has been a shit-show so far, and my deepest fear about it will be Ghomeshi walking due to a weak prosecutor and technicalities in the case.
posted by the uncomplicated soups of my childhood at 9:29 AM on February 9, 2016 [5 favorites]


I found the linked article by David Tamovich to be quite interesting, if muddled.

He makes a powerful case that an attorney ethically should not take a tack to intimidate a witness or complainant from persisting in the case -- the extent to which it helps his client is outweighed by the extent to which it makes it impossible for the trier of fact to make a just determination.

But he is also pushing for a breathtaking diminution of the power of attorneys to defend clients whom they know to be factually guilty. Traditionally, such attorneys labor under some specific disabilities: they can't introduce evidence they know to be false, be it forged documents supporting an alibi they know to be impossible, or putting their client on the stand to deny an act the attorney know they did. Tamovich now says that such attorneys also cannot seek to exclude or impeach prosecution evidence when they know (thanks to their knowledge of the client's guilt) to be relevant and not false. Such a rule, if applied, would transform defense attorneys into co-prosecutors in most cases, because, of course, the vast majority of criminal defendants are unquestionably guilty as sin, and the job of a defense attorney is to make sure the cops and prosecutors have gotten enough evidence in the right way to be entitled to lock their clients up for it.
posted by MattD at 9:31 AM on February 9, 2016 [3 favorites]


AFAIK, and IANAL, 'outside of BDSM' doesn't exist. I cannot, legally speaking, consent to you spanking me or tying me up or beating me with a bamboo cane.

Aha, thank you. (Just found a G&M article (sorry) that goes into it a bit, for the interested.)
posted by cotton dress sock at 9:32 AM on February 9, 2016 [1 favorite]


There is legislation in Canada that is supposed to prohibit inferences based on someone's sexual history (ss 276-277 of the Criminal Code).

Sorry I'm not giving the kind of quality comments Lemurrhea used to.


I always enter any Canadian legal thread with a heavy heart knowing that insight won't be there.

However, there's no crying in espionage's links above give some good background on this (sorry for the chunky quote):

Section 276 of the Criminal Code, RSC 1985, c C-46,is commonly known as the rape shield provision (along with section 277, which restricts evidence of sexual reputation), and provides as follows:

276. (1) In proceedings in respect of [a sexual offence] … evidence that the complainant has engaged in sexual activity, whether with the accused or with any other person, is not admissible to support an inference that, by reason of the sexual nature of that activity, the complainant

(a) is more likely to have consented to the sexual activity that forms the subject-matter of the charge; or

(b) is less worthy of belief.

One important point to note is that although this section is often described as restricting “sexual history” evidence, it includes evidence of sexual activity that occurred either before or after the sexual activity that is the subject matter of the offence. If the defence intends to lead sexual history evidence, for example in cross-examining the complainant, they must apply to the court for permission to do so. The court may only admit such evidence where it relates to:

(a) … specific instances of sexual activity;

(b) is relevant to an issue at trial; and

(c) has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice (s 276(2)).

The judge hearing the application must also have regard to several factors in deciding whether the sexual history evidence is admissible, including the right of the accused to make full answer and defence, society’s interest in encouraging the reporting of sexual assault offences, the need to reject discriminatory beliefs or biases, and the rights of the complainant to personal dignity, privacy, security of the person, and to the full protection and benefit of the law (s 276(3)).

posted by mandolin conspiracy at 9:34 AM on February 9, 2016 [3 favorites]


> As for 'whacking', I don't know. The problem may simply be that trusting the women is fundamentally irreconcilable with an adversarial justice system. The system we have designed is terrible for sexual assault cases, which is not to say I know what the fix is.

Yeah, this is what I've been thinking about recently. “Listen and believe” is good advice for people who don't get how prevalent sexual assault is. But it's not administrable in a court of law. Adversarial courts and “innocent until proven guilty” are major reasons why sexual violence is underreported, but getting rid of them (even for just a small handful of offenses) wouldn't pass constitutional muster in the US, and I fear would merely swap one problem for another.

Defense attorneys employ 'whacking' because they think (or cynically believe that juries/judges think) it's a tactic that can be used to differentiate true cases from false accusations. I think they're wrong, and that it should be a prohibited tactic in most cases, but even if that happens we're often left with she-said/he-said situations under which it's hard for a prosecutor to meet a burden of proof. I don't have any ideas either. I just think that if we're lucky enough to have made progress on this a decade from now, it won't be because of any large-scale judicial reform.

(None of what I just said necessarily pertains to the Ghomeshi case, about which I know only a bit.)
posted by savetheclocktower at 9:34 AM on February 9, 2016 [3 favorites]


and the job of a defense attorney is to make sure the cops and prosecutors have gotten enough evidence in the right way to be entitled to lock their clients up for it

Yeah. Meaning if they have gotten enough and in the right way, the defence can't be allowed to mess with it. I find this totally unproblematic. The problem is this weird notion we have as a society that the job of a defence lawyer is to exonerate their client at all costs. It's not. The job of a defence lawyer is to keep the prosecution honest.
posted by feckless fecal fear mongering at 9:36 AM on February 9, 2016 [7 favorites]


I wonder if the Crown didn't bring it up because, fuck Heinen, it is totally irrelevant what women did after being assaulted by this turd. Or maybe I'm being overly hopeful.

Personally, it does not fill me with an ounce of hope to think that the crown is relying on some naive preparatory belief that a case is going to be dealt with fairly and cleanly by both sides. This was very, very predictable - the credibility of the women in this case is paramount to a conviction, and on the other side is an elite defense attorney in her highest profile case (arguably) to date. She's going to do whatever she can not to lose, if not for Jian, than for the benefit of practice as "the" person for high-profile defendants to go to.

If all the prosecution prepared for was a straight-and-narrow facts-based case and none of the slut shaming/if a woman's story and history isn't perfect we can't trust anything they say/etc. that always happens in these cases , that to me is the opposite of hope.
posted by scrittore at 9:37 AM on February 9, 2016 [3 favorites]


The after-the-fact communications are highly relevant if the issue is consent and the communications assist the trier of fact to determine whether consent was rendered (or whether the defendant believed at the time consent was rendered, which sometimes is also useful as a defense or at least a mitigation of sentence). But if the acts that were committed were criminal per se and could not be consented to, hard to see at all why this evidence is admissible as to guilt. (Still potentially admissible as to severity of sentence.) It also means every BDSM top is a felon and goes to jail if and when his or her bottom decides he or she wants that to happen, which would be an uncomfortable conclusion.
posted by MattD at 9:42 AM on February 9, 2016 [6 favorites]


@savetheclocktower - I suspect that - esp with juries - in general, merely picking a case apart might not be enough to counter a powerful narrative; I think (and wish I didn't) that a convincing alternative story might be more effective in swaying opinion than a careful presentation of the facts.
posted by cotton dress sock at 9:44 AM on February 9, 2016




The after-the-fact communications are highly relevant if the issue is consent and the communications assist the trier of fact to determine whether consent was rendered

But one can have changing feelings about an event over time, can't one.
posted by cotton dress sock at 9:45 AM on February 9, 2016 [1 favorite]


The after-the-fact communications are highly relevant if the issue is consent and the communications assist the trier of fact to determine whether consent was rendered

These women have stated that they did not at the time consent to being choked, slapped, etc. Not a single thing they have done since changes that simple fact, and suggesting otherwise feeds into the rape culture bullshit that prevents women from coming forward.
posted by feckless fecal fear mongering at 9:45 AM on February 9, 2016 [30 favorites]


....and Moxy Fruvous goes on the trash heap.
posted by chonus at 9:49 AM on February 9, 2016 [3 favorites]


Does BDSM vs. assault require explicit verbal consent beforehand, some kind of more or less formal agreement outlining particular practices in advance?

Also wonder whether the defense attorney is going to argue that it was reasonable for Ghomeshi to understand his victim's shocked responses to be consensual in nature


IANAL However, I remember from an article at the time this first came out that consent is not a defense to assault. You cannot consent to have someone assault you under Canadian law. So basically BDSM is legal only in the sense that no one would prosecute it if there were consent, not that it's technically legal.

Second, I recall from articles at the time Kim Campbell passed the current rape bill that under this law, mistake-of-fact (i.e. I now know that she didn't consent, but at the time I believed she was consenting) defense under the current rape law is a reverse onus defence. That is, the presumption is against mistake of fact and the burden of proof falls on the defense to prove that he took reasonable steps to be assured that she consented (i.e. asked). That was quite a few years ago, and I assume there has since been a lot of case law influencing how that worked out in practice. Maybe a lawyer among us can fill us in on that.
posted by If only I had a penguin... at 9:53 AM on February 9, 2016 [3 favorites]


It also means every BDSM top is a felon and goes to jail if and when his or her bottom decides he or she wants that to happen, which would be an uncomfortable conclusion.

You know what's an uncomfortable conclusion? Requiring people who've been raped/assaulted to perform a set of criteria after the fact in order for their lack of consent to be believable.

Many of these women are in shock, are being raped/assaulted by people with a significant power advantage, or may only realize some time after the fact that what occurred was not legal or okay. Some people even have consensual sex after the fact with the person who assaulted them for a whole host of reasons.

We can imagine all kinds the uncomfortable conclusions that requiring enthusiastic, unwavering, and provable consent could lead to - but they're imaginary. The conclusions that are actually happening to women who pursue convictions in sexual assault cases are actually heinous.
posted by scrittore at 9:59 AM on February 9, 2016 [25 favorites]


I believe these women.

I'm so appalled at how they're being treated in some parts of the press, by Ghomeshi's lawyer, and in the court, and on Twitter.

These women knew that they would be attacked in this way by the defense when they came forward and forced to relive the assaults.

This trial is a nauseating spectacle of victim blaming.
posted by psychic tee vee at 9:59 AM on February 9, 2016 [4 favorites]


Adversarial courts and “innocent until proven guilty” are major reasons why sexual violence is underreported

I respectfully disagree. It's how victims are punished outside the court that matters most. If a murder witness says, "I was scared to come forward because _____", people are usually sympathetic and believe the witness. If a sexual assault victim says, "I was scared to come forward because _____", people condemn and disbelieve the victim. That's where victims are punished. If the overwhelming outside-the-court response was a simple, "He shouldn't have assaulted you, no matter what you did," none of what the defense lawyer is talking about would matter.
posted by clawsoon at 10:00 AM on February 9, 2016 [7 favorites]


It's also very, very much how victims are not only attacked on the stand, but are revictimized by being forced to relive every moment in detail over and over again.

What kind of woman won't report sexual assault? Written by a former Crown prosecutor. You're flat-out wrong that it's only what happens outside the courtroom that affects victims.
posted by feckless fecal fear mongering at 10:06 AM on February 9, 2016 [18 favorites]


It still blows my mind (angrily) that people are saying--much like they say about Cosby's victims--that these women are doing it for attention and what did they expect? Yes, because being called names, having nothing you say about your assault be believed, and having all your actions called into question is AWESOME.
posted by Kitteh at 10:07 AM on February 9, 2016 [14 favorites]


Good point, feckless fecal fear mongering.
posted by clawsoon at 10:09 AM on February 9, 2016


I appreciate what Svea Vikander is doing in recounting during the next month the many times she has experienced sexual assault or violation or harassment. But I'm also having a mini, sympathetic panic attack thinking about how often she's going to hear "Oh, that wasn't an assault," or "Come on, you're blowing it out of proportion." Numerous times for each incident, I imagine. Which, ironically, will illustrate nicely the point everyone is making about how we don't listen to the women, how the women are discredited, how the women are attacked (again) for speaking up. It's making me feel sick inside.
posted by mudpuppie at 10:23 AM on February 9, 2016 [7 favorites]


Her job in defence is categorically not to get her client off, it's to establish a) the facts of what happened, and b) that the Crown and the police have done their jobs legally.

Look, having known nothing about the guy before, I clocked Ghomeshi as an abuser just from his preemptive public statement prior to his firing. I hope he gets the book thrown at him. But this is just not right. The job of a defense attorney is to zealously defend his/her client within the limits of the law and legal ethics. Here is what the Canadian Rules of Professional Conduct for lawyers say:
– In adversarial proceedings, the lawyer has a duty to the client to raise fearlessly every issue, advance every argument and ask every question, however distasteful, that the lawyer thinks will help the client’s case and to endeavour to obtain for the client the benefit of every remedy and defence authorized by law. The lawyer must discharge this duty by fair and honourable means, without illegality and in a manner that is consistent with the lawyer’s duty to treat the tribunal with candour, fairness, courtesy and respect and in a way that promotes the parties’ right to a fair hearing in which justice can be done. [...]

The lawyer’s function as advocate is openly and necessarily partisan. Accordingly, the lawyer is not obliged (except as required by law or under these rules and subject to the duties of a prosecutor set out below) to assist an adversary or advance matters harmful to the client’s case. [...]

When defending an accused person, a lawyer’s duty is to protect the client as far as possible from being convicted, except by a tribunal of competent jurisdiction and upon legal evidence sufficient to support a conviction for the offence with which the client is charged. Accordingly, and notwithstanding the lawyer's private opinion on credibility or the merits, a lawyer may properly rely on any evidence or defences, including so-called technicalities, not known to be false or fraudulent.
So it would be unethical for his lawyer to act in the way you are suggesting. The idea that a defense lawyer's job is little more than to "check the work" of the prosecutor is terrifying. Your lawyer is often all that stands between you and the immense power of the state. The state has, rightfully, a heavy burden in a criminal prosecution--in most cases, all the burden--for darned good historical reasons. A defense lawyer, rightfully, holds them to meeting that entire burden. Even in cases of awful defendants.
posted by praemunire at 10:29 AM on February 9, 2016 [22 favorites]


A defense lawyer, rightfully, holds them to meeting that entire burden.

Yeah, which is what I said. It doesn't include character assassination to muddy the waters.
posted by feckless fecal fear mongering at 10:36 AM on February 9, 2016 [2 favorites]


I was originally critical of the Crown for not preparing the complainants adequately enough. But I'm not sure it's possible to do that. You can't prepare somebody for a firing squad by firing a few test bullets at them.

I don't blame Ghomeshi's defense lawyer. She's just doing her job. If I were to be falsely accused of a crime, I'd want someone working that hard for me.

I believe the women absolutely, and I think it would be a travesty if Ghomeshi were to be acquitted. Especially since it will reinforce the idea that sexual assault is virtually never punished.
posted by tallmiddleagedgeek at 10:37 AM on February 9, 2016 [1 favorite]


I don't blame Ghomeshi's defense lawyer. She's just doing her job. If I were to be falsely accused of a crime, I'd want someone working that hard for me.

This is the attitude that needs to die in a fire. There's nothing in her job that necessitates her engaging in borderline slander to attack a witness' credibility by playing to horrible societal norms that also need to go into the fire.
posted by NoxAeternum at 10:42 AM on February 9, 2016 [13 favorites]


This is the attitude that needs to die in a fire.

I should clarify: it's not her fault that the system is broken. Unless she is engaging in professional misconduct, the fault lies with the court system for allowing that sort of questioning.

I'm in favour of changing the rules to not allow what she is doing.
posted by tallmiddleagedgeek at 10:43 AM on February 9, 2016 [1 favorite]


The job of a defense attorney is to zealously defend his/her client within the limits of the law and legal ethics.

And, once again, there is a very strong case that "whacking" should be unethical.
posted by NoxAeternum at 10:44 AM on February 9, 2016 [3 favorites]



I should clarify: it's not her fault that the system is broken. Unless she is engaging in professional misconduct, the fault lies with the court system for allowing that sort of questioning.

I'm in favour of changing the rules to not allow what she is doing.


Blame's like fertilizer - you need to spread it where it belongs. Yes, the rules need to be fixed, but we should also condemn lawyers who use this strategy as well.
posted by NoxAeternum at 10:46 AM on February 9, 2016 [3 favorites]


[A few comments deleted. For obvious reasons this is a hotly charged topic; anything in the neighborhood of "but the women seem to be lying" isn't going to be a good way to jump in here if you want anything other than a big fight.]
posted by LobsterMitten (staff) at 10:47 AM on February 9, 2016 [8 favorites]


Irrelevant attempts to undermine the witnesses are already supposed to be disallowed in court. Relevant attempts to impeach the credibility of the witnesses are vital to a fair system. So the argument boils down to the dividing line between irrelevant and relevant attempts to impeach witnesses. Which is the judge's job.
posted by Justinian at 10:55 AM on February 9, 2016 [5 favorites]


Again: at the time, none of these women consented to being slapped and choked. What they did after is irrelevant. Women stay in abusive relationships all the damn time.
posted by feckless fecal fear mongering at 10:57 AM on February 9, 2016 [14 favorites]


Yes? I said it's supposed to be the judge's job to disallow irrelevant attacks. Not that this wasn't irrelevant.
posted by Justinian at 10:59 AM on February 9, 2016 [1 favorite]


Again: at the time, none of these women consented to being slapped and choked. What they did after is irrelevant. Women stay in abusive relationships all the damn time.

I don't think anyone here is arguing with you on the validity of these statements, they are simply saying that Gomeshi's lawyer is defending her client to the fullest extent of the law, no matter how distasteful that is. At least, that's what I tried to say.
posted by hepta at 11:00 AM on February 9, 2016 [3 favorites]


Irrelevant attempts to undermine the witnesses are already supposed to be disallowed in court. Relevant attempts to impeach the credibility of the witnesses are vital to a fair system. So the argument boils down to the dividing line between irrelevant and relevant attempts to impeach witnesses. Which is the judge's job.

It's weird that the judge let it in, then. Because it would seem that only what happened during the course of the assaults matters. And no one contests that they happened, and they're (it seems) straight-up illegal.
posted by cotton dress sock at 11:05 AM on February 9, 2016 [3 favorites]


What would prove reasonable doubt in this case?
posted by stavrogin at 11:09 AM on February 9, 2016 [1 favorite]


Heinen's strategy is clearly that these women's post-assault behaviours indicate that they are not telling the truth about the assaults as they would have behaved differently in that circumstance. This, relying on sexist and outdated ideas regarding assault, does go to the heart of whether the events these women have alleged are true. As well, this case appears to be entirely he said-she said (and she said, and she said, etc) which means that the credibility of the complainants are entirely in issue, unfortunately.
posted by hepta at 11:10 AM on February 9, 2016 [5 favorites]


Can the Crown call in expert witnesses testifying to the range of post-assault behaviour?
posted by cotton dress sock at 11:12 AM on February 9, 2016 [1 favorite]


That would be how I'd try to handle it, but I know a lot more about the American legal system than the Canadian one for obvious reasons.
posted by Justinian at 11:14 AM on February 9, 2016


In Canada, reasonable doubt is not given a specific definition, but some key concepts include that "more is required than proof that the accused is probably guilty. A jury which concludes only that the accused is probably guilty must acquit" and that "proof beyond a reasonable doubt 'falls much closer to absolute certainty than to proof on a balance of probabilities.' (R v Layton) It is not enough to believe that the accused is probably guilty - that is not proof beyond a reasonable doubt. What that looks like in this case is going to be interesting.
posted by hepta at 11:14 AM on February 9, 2016 [2 favorites]


This was another good CanadaLand article I found yesterday: When Your Friend is on the Stand at the Ghomesi Trial
posted by nubs at 11:15 AM on February 9, 2016 [4 favorites]


What would prove reasonable doubt in this case?

You don't prove reasonable doubt, you prove a case. If you can't prove your case, there's reasonable doubt.
posted by mazola at 11:16 AM on February 9, 2016 [2 favorites]


I'm wondering whether the Crown could just focus on the fact that all of the defense's questions about how the complainants behaved before or after the alleged assaults are irrelevant. What matters is whether the assaults happened.
posted by tallmiddleagedgeek at 11:17 AM on February 9, 2016



This is the attitude that needs to die in a fire.

I should clarify: it's not her fault that the system is broken. Unless she is engaging in professional misconduct, the fault lies with the court system for allowing that sort of questioning.

I'm in favour of changing the rules to not allow what she is doing.


I'm not a fan of this way of thinking. Why can't she behave as a better human? Why must she be compelled (by the law) to be more humane in the way she questions a witness or respects a survivor? Stuff like this is what often gives lawyers a bad name. Ugh. I get that she has to work in a particular way to defend her client, but you can be passionate AND a better type of human. It is possible to be both.

But maybe I'm missing some specific legal definition or code or something because I am not a lawyer.
posted by Fizz at 11:22 AM on February 9, 2016 [5 favorites]


I should have been more specific. I meant to the people in this thread, what would make you think there's reasonable doubt that he isn't guilty of sexual assault? It seems as though issues with their credibility aren't relevant to many people, so I'm wondering what would be relevant.
posted by stavrogin at 11:28 AM on February 9, 2016 [1 favorite]




I'm not a fan of this way of thinking. Why can't she behave as a better human?

Her job is to assume that her client is innocent, and to fight as fiercely as possible within the bounds of legality and ethics to do so. What if she was a "better human", and her client was found guilty when he was innocent?

What I believe is that this trial is showing how badly broken the system is. I can't imagine what the women on the stand are going through, and I believe that no one should have to endure that. But I also believe that an accused deserves to be assumed innocent until proven guilty - and, in cases of rape and sexual assault, there's so little independent evidence available. It often seems to come down to "he said" versus "she said".

As I said before, I believe the women. I think that Ghomeshi is guilty, and that he is a lowlife sex predator. But I don't know how to completely fix the system. It's a horrible tragedy.
posted by tallmiddleagedgeek at 11:32 AM on February 9, 2016 [6 favorites]


This was another good CanadaLand article I found yesterday: When Your Friend is on the Stand at the Ghomesi Trial

More context to this piece: Stacey May Fowles is one of the best writers in Canada, and has shared repeatedly about the lasting effects of her own sexual assault. Lucy DeCoutere asked her to be her designated support person for her testimony, and here Fowles is writing about what that was like, with DeCoutere's consent.

I have a lot of time for anything Fowles writes.
posted by dry white toast at 11:33 AM on February 9, 2016 [3 favorites]


I should have been more specific. I meant to the people in this thread, what would make you think there's reasonable doubt that he isn't guilty of sexual assault.

Well, the defence hasn't denied it. I wouldn't think a denial in itself was reasonable doubt, but I'm having trouble imagining that I would doubt that he had committed these assaults if even he and his own lawyer don't deny it.

Second, I suppose maybe if there weren't a pattern of many many women saying essentially the same thing. Again, that wouldn't be doubt in itself, but when there are so many women saying the same thing, it makes it very difficult to imagine that maybe it's not true.

Third, that he's keeping files on these women again makes it very unlikely that this isn't true. He's keeping these files because he believes he's assaulting women and wants some insurance to make sure he gets away with it. If even he believes he's assaulting people, why shouldn't I believe it?
posted by If only I had a penguin... at 11:35 AM on February 9, 2016 [6 favorites]


tallmiddleagedgeek - as quoted in an above comment, Heinen's duty to the courts, the client, etc is "to protect the client as far as possible from being convicted". The Canadian Professional Rules of Conduct state that she must and "has a duty to the client to raise fearlessly every issue, advance every argument and ask every question, however distasteful, that the lawyer thinks will help the client’s case and to endeavour to obtain for the client the benefit of every remedy and defence authorized by law." (my emphasis)

It may not be palatable in this situation but it certainly comes in handy when innocent parties are accused of crimes and the full power of the state is brought to bear against them.
posted by hepta at 11:36 AM on February 9, 2016 [4 favorites]


Those are all things that make you think he's guilty. I'm asking people who don't care about the credibility of the accusers what would make them think there is reasonable doubt that Ghomeshi sexually assaulted these three specific women in this specific court case.
posted by stavrogin at 11:43 AM on February 9, 2016


Disclaimer: I believe the accusers.

I can only begin to imagine how painful the last week has been for survivors of sexual assault in Toronto (and Canada). This has been everywhere. I've also become acutely aware in the last week how many women I know that have dealt with this.

I honestly can't really find fault with Heinen for her line of questioning and really can't grasp why she's being attacked...this is her job. I mean, at the end of the day, the tropes of rape culture that she is trotting out are the only "defense" (I prefer the word excuse) that Ghomeshi has. If anything galls me about this process, it's that Ghomeshi doesn't have to testify.

But I also don't begrudge any survivors their anger at Heinen, Ghomeshi or the twats who can't wait to seize on what has been presented in court to raise the absurd idea that any woman would sign up for this hell over a false accusation of rape.
posted by dry white toast at 11:45 AM on February 9, 2016 [1 favorite]


Stavrogin - looking at the case this way, I can see how someone could see reasonable doubt:

1. These allegations are years old, were never reported to police at the time.
2. There is no physical evidence.
3. The women continued to see their accuser socially and even intimately after the alleged assaults.
4. The complainants have not been forthcoming with police, have given numerous media interviews, and generally are not rock solid in terms of credibility.
5. This is a he said - she said case, so credibility is really important.

The defence starts out ahead. They have the presumption of innocence. Those above things could convince someone, maybe, that the prosecution had not proven him guilty beyond a reasonable doubt. (that someone is not me - i think he's guilty as sin).
posted by hepta at 11:48 AM on February 9, 2016 [8 favorites]


I honestly can't really find fault with Heinen for her line of questioning and really can't grasp why she's being attacked...this is her job.

Because "this is her job" is a bullshit defense. Defense lawyers wonder why they have such a bad reputation, then defend this sort of conduct as part of a "zealous defense".
posted by NoxAeternum at 11:52 AM on February 9, 2016 [2 favorites]


when there are so many women saying the same thing, it makes it very difficult to imagine that maybe it's not true.

I think part of the defense is that they colluded against him for whatever personal or maybe professional reasons. (Because of course people, especially women, especially women working in and around the arts, just love to have their characters publicly assassinated.)
posted by cotton dress sock at 11:58 AM on February 9, 2016 [2 favorites]


It doesn't include character assassination to muddy the waters.

This description covers just about every attempt to impeach a witness for lack of credibility. Including, for example, the cross-examination of Mayella Ewell in To Kill A Mockingbird. (I pick this example because it's probably the most familiar to people, not to imply that I think Ghomeshi is innocent or being prosecuted for racial reasons. I really, really don't.)

Impeachment for lack of credibility is a delicate issue. This would, presumably, be the Canadian equivalent of the U.S. Rule 613, impeachment by prior inconsistent statement ("you testified X? but two months ago, you said Y!"). Like many rules of evidence, Rule 613 doesn't reflect a modern understanding of human psychology, such as the effects of trauma, and, like most rules of evidence, could really use an overhaul to reflect what we now know better than we did in 1583. But--within the other constraints already discussed--it is your job as a defense lawyer to point out when a witness has made statements apparently inconsistent with her testimony.
posted by praemunire at 12:01 PM on February 9, 2016 [4 favorites]


See, 4 of those points are about the accusers' credibility. People are saying that their behavior after the fact is irrelevant because sexual assault victims' behavior can seem at odds with expectations. See the link Kitteh posted. So, if their behavior following the alleged assault and the lack of physical evidence doesn't undermine the accusations, I'm wondering what could.
posted by stavrogin at 12:02 PM on February 9, 2016 [2 favorites]


Behavior after the fact isn't necessarily irrelevant. People are saying that these particular behaviors in this particular case are irrelevant. The judge will decide if he agrees and if he does he will return a guilty verdict.
posted by Justinian at 12:03 PM on February 9, 2016 [1 favorite]


Oh, and also some people think the defense shouldn't be able to raise the issues at all because they are irrelevant. That's a thornier issue.
posted by Justinian at 12:04 PM on February 9, 2016


I'm asking people who don't care about the credibility of the accusers what would make them think there is reasonable doubt that Ghomeshi sexually assaulted these three specific women in this specific court case.

If the defense has proof of enthusiastic consent (say, as part of Ghomeshi's detailed filing system on prior lovers he decided to document their consent) or actual proof, either collectively or independently, that these three women are conspiring against him and perjuring themselves for their own gain.

Not a theory, not proposed character flaws or actions you may not expect, but proof they're putting themselves through this nightmare for reasons other than its true.
posted by scrittore at 12:05 PM on February 9, 2016


Because "this is her job" is a bullshit defense.

Are things different in Canada? Because in the US that actually is the attorney's job.
posted by MisantropicPainforest at 12:06 PM on February 9, 2016 [1 favorite]


f the defense has proof of enthusiastic consent (say, as part of Ghomeshi's detailed filing system on prior lovers he decided to document their consent) or actual proof, either collectively or independently, that these three women are conspiring against him and perjuring themselves for their own gain.


This isn't the way things work for reasonable doubt though. Reasonable doubt exists UNTIL the prosecution overrides it. The prosecution needs to prove these events occurred and there was no consent in order to displace the presumption of innocence and overcome reasonable doubt. Not the other way around.
posted by hepta at 12:08 PM on February 9, 2016 [7 favorites]


hepta: My understanding is that some people believe that the women's testimony in and of itself in the absence of evidence to the contrary should be taken as overcoming reasonable doubt.
posted by Justinian at 12:10 PM on February 9, 2016


scrittore, it seems like you're saying he has to prove his innocence, rather than they have to prove his guilt.
posted by stavrogin at 12:12 PM on February 9, 2016 [3 favorites]


Oh, of course. But my understanding of the court is that when the complainants say one thing and the defendant says another, it comes down to corroborating evidence, credibility, and other factors.
posted by hepta at 12:12 PM on February 9, 2016


Yeah, that's how it works but not necessarily how some people think it should work.
posted by Justinian at 12:13 PM on February 9, 2016


Stravogin, the lack of physical evidence is an absence of a particular kind of evidence, not something that creates a doubt exactly. I realize the courts dont' require a doubt to be created. It's already assumed to be there. Since you're asking what we think and not about the legal standard, I'm point out that absence of one particular kind of evidence doesn't create a doubt. After all, some type of evidence is lacking in just about any criminal case. Not every case has DNA, eyewitness testimony, video footage from surveillance cameras, receipts, etc. etc. but each case will have some combination of evidence types and the fact that it lacks some other part doesn't somehow contradict the parts that due exist. THis case is based primarily on eyewitness testimony. The lack of DNA evidence (as one example of a kind not here) doesn't negate the validity of the eyewitness testimony any more than the lack of video footage in another case would negate the recorded phone calls (or whatever).

As for behaviour after the fact, it's just not evidence of anything. It's not that I don't believe they wrote those letters, took those pictures, said those things, sent those texts, or whatever. It's that none of those things speak to whether they were punched or whether they consented.

And yeah, I will add to my list of things (and note that you've been given things that would undermine doubt, so I'm not sure why you're still wondering "what could"), if there were actual evidence of some sort of conspiracy to lie about being sexually assaulted. But again, if that were the case (if they were conspiring against him), it seems like Ghomeshi or his lawyer would deny the assaults, and there's been no implication at all that he denies any of it.
posted by If only I had a penguin... at 12:14 PM on February 9, 2016 [2 favorites]


these three women are conspiring against him and perjuring themselves for their own gain.

This is just hilarious. "For fame" is the motivation suggested in this article. Who wants that kind of fame? I suppose we can anticipate a run of speculation on DC's general mental health.

Interesting detail that I guess was used against her in court. In an email communication to Ghomeshi, she said (warning), "You kicked my ass last night and that makes me want to f**k your brains out tonight." This email was sent right around the event, and - regardless of her feelings about it, then or now - suggests that something violent happened. I wonder if his reply was admitted as evidence. (Also wonder whether there might be emails between DC and the other witness describing or discussing the assaults and their reactions to them, beyond whatever's been presented so far.)

(Also: the fourth witness' statement, which refutes the idea that all this was fabricated, will apparently be allowed, since she can't travel due to weather.)
posted by cotton dress sock at 12:23 PM on February 9, 2016 [1 favorite]


stavrogin

No, he doesn't have to prove his innocence. The proof of his guilt is in the eyewitness accounts of the assaults. Given that there are eyewitness accounts of the assaults, the only way this would not constitute proof is if they were lying. So if he wants to say "it's not proof because they're lying" there would have to be some reason to believe this. The defence has said nothing that might reasonably suggest they're lying. Evidence that they conspired to lie would be some reason to believe that.

I'm reminded of this case, some years ago, in which a man who shot a bunch of people on the subway represented himself in court. Eyewitnesses testified that this guy shot them and on cross-examination, he basically asked "Isn't it true that even though you say I shot you, I didn't?" This guy was convicted and was widely regarded as crazy for thinking that "Nuh-uh" was some kind of refutation of consistent eyewitness testimony provided by many people. Yet somehow in sexual assault cases, some people seem to think that "Nuh-uh" refutes witness testimony. It doesn't.

The judge (or jury and public) is probably going to believe a witness unless there's some reason to think they're mistaken or lying. That's not expecting the defence to prove innocence, it's just the way the whole testifying under oath thing is supposed to work. If we had to just start from the assumption that every witness is lying, the whole system would fall apart and there would be no point having witnesses. So yes, evidence that victims were lying is one thing that would make me doubt his guilt, but that's not because I expect him to prove his evidence.
posted by If only I had a penguin... at 12:23 PM on February 9, 2016 [1 favorite]


it seems like Ghomeshi or his lawyer would deny the assaults, and there's been no implication at all that he denies any of it.

He did plead not guilty to all charges which seems like at least an implicit denial, right?
posted by Justinian at 12:24 PM on February 9, 2016


Not guilty could mean he doesn't think they can prove it, or he thinks he can get away with it. A denial would be "Didn't punch her." or "I asked if I could punch her hard and she said yes."
posted by If only I had a penguin... at 12:26 PM on February 9, 2016 [1 favorite]


Man, I'm having my worst spelling day ever.
posted by If only I had a penguin... at 12:27 PM on February 9, 2016


scrittore, it seems like you're saying he has to prove his innocence, rather than they have to prove his guilt.

Nice try speaking for me - I am saying the independent testimony that I am aware of of these three women is, in my purview, enough to satisfy the burden of proof. I believe people using reason, sense, and the evidence of this trial reasonably find him to have committed these crimes.
posted by scrittore at 12:29 PM on February 9, 2016 [2 favorites]


Not guilty could mean he doesn't think they can prove it

True enough. But given that the defendant doesn't have to testify (and usually shouldn't) the pleading is the only kind of denial that occurs in virtually all criminal cases.
posted by Justinian at 12:34 PM on February 9, 2016


The prosecution needs to prove these events occurred and there was no consent

Once again, it is not possible to consent to being assaulted in Canada outside of specific sporting contexts.

The only question here is whether he slapped/choked/punched/etc these women. And the defence isn't denying it. They are tacitly admitting the events occurred, and are assassinating the characters of these women in order to muddy the waters enough to manufacture doubt out of whole cloth. That is literally all that is going on here. Heinen is employing a despicable tactic to keep a serial assaulter out of jail, and it might work.
posted by feckless fecal fear mongering at 12:34 PM on February 9, 2016 [15 favorites]


It also means every BDSM top is a felon and goes to jail if and when his or her bottom decides he or she wants that to happen, which would be an uncomfortable conclusion.

You can consent to physical assault in Canada (i.e. a hockey fight), but you cannot consent to something that causes lasting damage, even if you verbally did so in advance.

My non-lawyer view is that two adults can consent to bedroom roughhousing as long as it stays within limits. If someone decides beat the other up for real, with intent to injure, the victim cannot be understood to have given consent. That line is also part of this case. The women cannot consent to full on assault during sex.

I'm very glad there is a judge on this and not a jury.
posted by bonehead at 12:38 PM on February 9, 2016 [4 favorites]


serious question, but isn't that her job? If it works, doesn't she have an obligation to do so?
posted by MisantropicPainforest at 12:39 PM on February 9, 2016


[One deleted. stavrogin, you're now circling back around to stuff that's already been replied to (how assault victims normally behave after assaults), it's time to drop it. You've registered your skepticism already, let the thread move on.]
posted by LobsterMitten (staff) at 12:43 PM on February 9, 2016


I honestly can't really find fault with Heinen for her line of questioning and really can't grasp why she's being attacked...this is her job. I mean, at the end of the day, the tropes of rape culture that she is trotting out are the only "defense" (I prefer the word excuse) that Ghomeshi has. If anything galls me about this process, it's that Ghomeshi doesn't have to testify.

In the reddit threads on r/Canada, beyond the usual shit-show of logical positivists loudly disbelieving every statement by the witnesses because of "inconstant behavior", there is a whole stream of people relating sexual assaults that happened to them, and then concluding things like:

Seeing behaviour patterns I'm still struggling to admit to dissected on such a public scale is unnerving, and also (strangely?) a bit validating. One the one hand, it's weirdly comforting to know that other people behave like this under similar circumstances, but on the other hand, I am intensely grateful that I never came forward.

That's just one of many. That's why what the lawyer Heinen, and the columnists Blatchford and yesterday Wente are doing is despicable.
posted by bonehead at 12:45 PM on February 9, 2016 [13 favorites]


serious question, but isn't that her job? If it works, doesn't she have an obligation to do so?

The job of a defence lawyer is:

a) to ensure their client avoids jail at all costs;

or

b) to ensure the state has met its burden of proof and obeyed the law?

(hint it's b. a is disgusting and leads to exactly the kind of character assassination, slut-shaming, and total disregard for documented research about how assault victims behave that we are seeing here)
posted by feckless fecal fear mongering at 12:46 PM on February 9, 2016 [5 favorites]


How are the US and Canada different? In the US, its a). Things are different up north?
posted by MisantropicPainforest at 12:48 PM on February 9, 2016 [1 favorite]


No, the public perception of the system has become warped to the point where people think the job of a defence lawyer is to exonerate their client. It isn't and never has been. Their job is to make the prosecution prove their case.

(This is what I was told by a lawyer who worked with Clayton Ruby for quite some time. This is not a minority opinion.)
posted by feckless fecal fear mongering at 12:51 PM on February 9, 2016 [3 favorites]


(hint it's b. a is disgusting and leads to exactly the kind of character assassination, slut-shaming, and total disregard for documented research about how assault victims behave that we are seeing here)

Do you have a citation for this? To my knowledge the definition of raising a defense is for a defendant to avoid criminal or civil liability.

One key function missing from your b) example is arguing that the state may have obeyed the law and the defendant may have committed the crime, but extenuating circumstances dictate that the punishment should either be waived or reduced.

I.e., Ghomeshi arguing (it seems) that he did choke a woman, but at the time she gave him consent. It does not seem credible based on other evidence, but I do not think the assertion is outside the bounds of what a defense should be.
posted by scrittore at 12:54 PM on February 9, 2016 [2 favorites]


Clayton Ruby is roughly as famous within Canada as Dershowitz in the States, except he's not a thundering asshole.
posted by feckless fecal fear mongering at 12:54 PM on February 9, 2016 [2 favorites]


I.e., Ghomeshi arguing (it seems) that he did choke a woman, but at the time she gave him consent.

Not a defence because see the half dozen times I've already addressed this
posted by feckless fecal fear mongering at 12:55 PM on February 9, 2016 [1 favorite]


Ok. Considering your assertion goes against all public perception in the US as to the obligation all attorneys have (which is to their clients above all else) can anyone show me why the primary obligation of a defense attorney is not to their client but to making the prosecution prove their case?
posted by MisantropicPainforest at 12:55 PM on February 9, 2016 [2 favorites]


Wente and (especially) Blatchford seem positively gleeful about how the trial has gone thus far in terms of the treatment of the witnesses.
posted by The Card Cheat at 12:56 PM on February 9, 2016 [2 favorites]


Blatchford's a given. She was the primary media apologist for the Rehteah Parsons rapists too. I'd have hoped that Wente would have had a bit more sense though. She's not always so blatantly anti-victim.
posted by bonehead at 12:58 PM on February 9, 2016


The record shows that the women -- all three of them -- have lied under oath. Repeatedly and, it appears, at times in collusion.

I can't summon up enough cognitive dissonance at this point to square that with 'I believe the women'.
posted by grounded at 12:59 PM on February 9, 2016 [1 favorite]


Not a defence because see the half dozen times I've already addressed this

Except you're, so far as I can tell, stating the law over broadly. You can't consent to assault in Canda where intentional injury results. You can consent to things where injuries do not occur or where any injuries that do occur are accidental rather than intentional.
posted by Justinian at 1:00 PM on February 9, 2016


I avoid reading Wente and Blatchford. It's bad for my blood pressure, and would make me want to throw my computer across the room. And I don't want to buy a new computer.

The goal of the criminal justice system is to ensure that the guilty are convicted and the innocent are set free. The horrible tragedy of sexual assault trials is that so many guilty people are not convicted. I don't know how this problem can be fixed unless you increase the risk that innocent people are found guilty.

Is there a way that the system can be improved?
posted by tallmiddleagedgeek at 1:00 PM on February 9, 2016


Ok. Considering your assertion goes against all public perception in the US as to the obligation all attorneys have (which is to their clients above all else)

Defence attorneys are officers of the courts. Their first obligation is to justice, just like crown attorneys. This is why crown attorneys are required to hand over exculpatory evidence to the defence, because their job isn't to secure a conviction, but to work within an adversarial system to see justice done.
posted by If only I had a penguin... at 1:00 PM on February 9, 2016 [3 favorites]


Hi Metafilter! I'm the rabble.ca editor that reached out to Svea to publish this series and I'm delighted to see it found its way into the Blue. My favourite part about the series so far, which has exceeded expectations, is that it is taking up all the issues and nuances at the heart of the entire Ghomeshi nightmare, from start to finish, but it is not about him. It's about women and everyday life and the very real danger that combination poses.

If you're like me, you've been sick of JG's mug since the story broke. We're not running any article during the trial with his photo on it (at the expense of clicks) and Svea's series is inciting exactly the kind of response we wanted: not about the legal minutiae of a system we all know is broken, but the myriad, subtle ways misogyny and abuse infiltrate women's daily lives. Thanks for reading it!
posted by Catchfire at 1:01 PM on February 9, 2016 [46 favorites]


Clayton Ruby is roughly as famous within Canada as Dershowitz in the States, except he's not a thundering asshole.

I am not questioning who Clayton Ruby is (I'm four hours down the road from you), I was wondering whether or not that definition was available somewhere I can read.

I only ask because it was missing one key element of a defense which is often used - the circumstances for which a client may be guilty, but the defendant does not deserve a penalty/the specified penalty.

Perhaps there's a nuance to this person's opinion I am missing - that is not about the burden of proof (the person is guilty) nor whether the state followed the law (presumably it did if you were to argue for leniency.) It's about keeping a person out/limited in their exposure to jail.
posted by scrittore at 1:05 PM on February 9, 2016


I'm not sure it's fair to say that defence counsel's obligation stops at "checking" the police's/Crown's work; see here from the Law Society of Upper Canada's (the regulatory body for Ontario lawyers) Rules of Professional Conduct:

"Duty as Defence Counsel - When defending an accused person, a lawyer’s duty is to protect the client as far as possible from being convicted, except by a tribunal of competent jurisdiction and upon legal evidence sufficient to support a conviction for the offence with which the client is charged. Accordingly, and notwithstanding the lawyer's private opinion on credibility or the merits, a lawyer may properly rely on any evidence or defences, including so-called technicalities, not known to be false or fraudulent."
posted by iona at 1:07 PM on February 9, 2016 [1 favorite]


Is there a way that the system can be improved?

I think so. We can take away some (more) of the tools lawyers use to attack credibility and pressure witnesses, including moving to not having them testify in open court, particularly where deliberate re-abuse is possible, like here. We could strengthen shield and evidence laws and help prevent more irrelevant info from being brought up at trial. We could also incorporate a better understanding of how human emotional responses following abuse can work into the law.

It's not the worst right now, but sure, it could be a lot better.
posted by bonehead at 1:10 PM on February 9, 2016 [2 favorites]


This description from the original post, of whacking:
> attempting to destroy their credibility by questioning inconsistencies in the details of their accounts and producing evidence of friendly and sexually explicit exchanges between the women and Ghomeshi, after the dates they said the assaults took place.

is whack with respect to the second clause. The linktext goes to the CBC show "The Current," the transcript for which includes this definition:

> Whacking is legal slang for an approach used in sexual assault trials. It is cross-examination on what the complainant was wearing, whether she or he immediately reported the incident, how they processed the trauma, whether the complainant spoke to a psychiatrist, the socioeconomic status, drug, alcohol use, lifestyle, marital status, that sort of thing. Very personal questions that should have been outlawed by rape shield provisions that have come into the criminal code over the last generation.

That seems a much more reasonable description of the slut-shaming and character assassination of rape accusers, which could be a good target for statutory or judicial remedy.

The problem I have with OP's definition is that, in the hypothetical situation of an innocent man being fraudulently accused by a woman, the man's legitimate defense would substantially take the same form as his defense amounts to proving consent retroactively, assuming he believed all along that the sex is consensual, and friendly/amorous/sexy messages after the alleged assault would be a pretty reasonable thing for him to have access to, either on his own phone/computer or through legal subpoena of the carriers involved.

To those who unconditionally believe women accusers, what evidence is likely to exist that would both defend an innocent man and also not count as whacking?
posted by Sunburnt at 1:12 PM on February 9, 2016 [3 favorites]


We can take away some (more) of the tools lawyers use to attack credibility and pressure witnesses, including moving to not having them testify in open court, particularly where deliberate re-abuse is possible, like here. We could strengthen shield and evidence laws and help prevent more irrelevant info from being brought up at trial. We could also incorporate a better understanding of how human emotional responses following abuse can work into the law.

Right, and none of those things require suspending the presumption of innocence, either. (Just reinforcing the point, since there were some upthread comments about how the presumption of innocence per se might be a problem in prosecuting cases of rape and sexual harassment.)
posted by tobascodagama at 1:13 PM on February 9, 2016


What do you guys mean by not having people testify in open court? Using closed circuit TV or something?
posted by Justinian at 1:15 PM on February 9, 2016


To those who unconditionally believe women accusers, what evidence is likely to exist that would both defend an innocent man and also not count as whacking?

I reject the presumption of your quesiton; whacking isn't a method used to extract evidence, its to discredit someone.
posted by MisantropicPainforest at 1:15 PM on February 9, 2016 [10 favorites]


it is not possible to consent to being assaulted in Canada outside of specific sporting contexts.

That is over-broad. The major precedent here was a bar fight. The law stating this in the criminal code specifically mentions sexual assault in terms of consent to being assaulted as well, likely to preclude the exact concerns raised above. So BDSM is a red herring. What matters under the assault law is the intent to commit serious injury.
posted by bonehead at 1:18 PM on February 9, 2016


Using closed circuit TV or something?

Yes. Or even be deposed prior and then shown to the court.
posted by bonehead at 1:19 PM on February 9, 2016 [1 favorite]


This allows stuff the judge rules inadmissible to be edified out, for example. Less ability for lawyers to play take-back games.
posted by bonehead at 1:20 PM on February 9, 2016 [1 favorite]


What do you guys mean by not having people testify in open court? Using closed circuit TV or something?

Submitting a signed or recorded deposition as evidence rather than appearing on the stand, I presume. With some kind of allowance for cross-examination in chambers before the judge officially accepts the statement into the record?

The point about not forcing survivors to testify in "open court" is mostly about not revictimising them by forcing them to to relive their experience in a public place, with their abuser present.
posted by tobascodagama at 1:21 PM on February 9, 2016 [2 favorites]


To those who unconditionally believe women accusers, what evidence is likely to exist that would both defend an innocent man and also not count as whacking?

I don't think anyone has said they unconditionally believe women accusers.

I have said I believe witnesses testifying under oath on the condition that there be no reason to think they are mistaken or lying. I make this statement about all witnesses, not just victims of sexual assault. For those of you who think one should not believe them by default, do you by default not believe witnesses in other kinds of trials?

I have further said that I think "believe eyewitnesses in the absence of a reason to think they're mistaken or lying" is kind of necessary for the whole functioning court system thing. If someone else gets up and gives contradictory evidence, then obviously one can't believe both witnesses and that is evidence that one of them is lying and then one would begin to evaluate credibility by thinking about what story is most likely, most consistent with the other evidence and evaluating the credibility of different witnesses and their possible incentives for lying. Nobody has yet given any contradictory testimony, so there's no real reason to doubt the witnesses at this point.

If someone, say Ghomeshi, were to testify and give contradictory evidence (I didn't punch her), then one would start thinking about who has the most credibility and who has reason to lie, and whose behaviour is consistent with other evidence. I think it would still be the victims since each woman's testimony is consistent with other witnesses and Ghomeshi's wouldn't be, since they have no reason to lie and he has every reason to lie, and since his keeping files on these women undermines the credibility of any statement that he doesn't think he assaulted these women.

Finally, the question of what evidence would suggest he is not guilty has been answered numerous times. It seems like some people are reluctant to accept an answer or examples that isn't "I think these women are lying because after the assault they behaved in ways that assault and abuse victims are known to commonly behave."

Finally finally, isn't it strange that for so long "circumstantial evidence" was used as some sort of derogatory term and now it seems like some people are questioning this case because it relies on witnesses rather than circumstantial evidence.
posted by If only I had a penguin... at 1:32 PM on February 9, 2016 [7 favorites]


grounded:

The record shows that the women -- all three of them -- have lied under oath.

Except when they didn't.

Presumably this is coming from Henein and Robitaille's statements today:

Henein and Robitaille said Tuesday that they believe that DeCoutere lied during her testimony, and alleged that she told the story "for fame." The defence said they believe she may have colluded with the other two complainants in the case.

But they haven't been able to prove that. At this point, it's their belief.

I can't summon up enough cognitive dissonance at this point to square that with 'I believe the women'.

It's not some exotic intellectual contortion to square all of the testimony and evidence to date - i.e., whatever else they said or did to or with Ghomeshi - with the notion that they sure as shit didn't sign up to be sucker punched in the back of the head or surprise-choked by the guy.

And there's twenty or so other people out there saying the same thing about him, and yeah, he's not on trial for those right now, but on the balance of probabilities, believing the women isn't a leap of faith.
posted by mandolin conspiracy at 1:33 PM on February 9, 2016 [15 favorites]


I've been following the CBC liveblogs and I'm seriously impressed with Lucy deCoutere and whoever prepped her. She just kept repeating that what she did afterwards was to try to make a fucked up situation normal, and that none of it means she consented to assault. It seems like witness 3, who was in contact with LdC, got some help that way, but witness 1 was seriously underprepared for this.

I've tweeted about this case, no hashtag, once, and got people up in my mentions with ALLEGED victims blah blah. It's unreal. I'm allowed to have any opinion I want.

The thing that really bugged me is when Heinen ended a day of questioning with "Do you want to tell the court the TRUTH?" and then just essentially went "Tune in tomorrow to see what the hell I am talking about".

(The bikini thing was because witness 1 had sent a bikini pic, and there was debate about whether it should be made public if her face was obscured. I think the judge made the right call; it's not like we don't know what women look like.)
posted by jeather at 1:35 PM on February 9, 2016 [2 favorites]


The record shows that the women -- all three of them -- have lied under oath.

I've been following the trial and I have no idea what you're talking about.
posted by If only I had a penguin... at 1:42 PM on February 9, 2016 [5 favorites]


jeather, it's stuff like this that I locked my Twitter account-- also, congrats, dudes who go looking for mentions of believing assault victims to spout your grossness, your lives must be hella fulfilling--but I see it secondhand from Julie LaLonde's Twitter feed.
posted by Kitteh at 1:42 PM on February 9, 2016


Also, here are the CBC liveblogs so far: 1, 2, 3, 4, 5, 6.

Reasonably upsetting when you get to the cross-examinations.
posted by jeather at 2:03 PM on February 9, 2016


> I have said I believe witnesses testifying under oath on the condition that there be no reason to think they are mistaken or lying. I make this statement about all witnesses, not just victims of sexual assault. For those of you who think one should not believe them by default, do you by default not believe witnesses in other kinds of trials?

Yes. I don't believe witnesses by default. People are unreliable, have malleable memories, are easily influenced and manipulated whether intentionally or unintentionally by law enforcement, the press, and parties interested in the case, not to mention themselves and their own self-interest and the reputations (themselves and others that they want to protect.
posted by Sunburnt at 2:28 PM on February 9, 2016 [2 favorites]


There's a difference between, say, witnesses to a robbery who are identifying people they have never seen before and do not know personally and witnesses saying "this person I know well attacked me". The former is highly unreliable, the latter isn't unreliable in the same way. In the latter case it's a matter of either being true or a lie rather than a mistake. So I don't think it's fair to consider those sorts of witnesses inherently unreliable in the same way a third-party witness to a crime is often shown to be.

That said, it is true from those liveblogs that the defense has shown that there was at least some lying under oath which is problematic for a conviction.
posted by Justinian at 2:37 PM on February 9, 2016 [2 favorites]


I understand that, but before they became a witness they were women accusing someone of sexual assault. Before that point, would you believe them?
posted by MisantropicPainforest at 2:39 PM on February 9, 2016 [1 favorite]


Could somebody fill me in on the lies under oath that at least two people have referred to?
posted by If only I had a penguin... at 2:40 PM on February 9, 2016 [1 favorite]


Check the liveblogs, for example in day 5 the cross has the witness admitting to lying under oath multiple times.
posted by Justinian at 2:46 PM on February 9, 2016 [1 favorite]


I think they are also referring to Witness #1. Police asked her during interviews if she had any further contact with Ghomeshi after the assault. She denied so repeatedly during the interviews, and testified that her statements to the police were truthful. Under cross, the defense submitted an email from the witness to Ghomeshi about a year after the assault which opens "Good to see you again".
posted by HighLife at 2:56 PM on February 9, 2016 [2 favorites]


I understand that, but before they became a witness they were women accusing someone of sexual assault. Before that point, would you believe them?

Well, yes, for the same reason I would believe someone if they told me they were mugged, or had pizza for lunch, or that it was raining when they woke up this morning, because you can't just walk around assuming everyone you talk to is lying to you about everything. I don't demand to see the pizza receipt and I don't ask why they're eating now if they just had pizza for lunch. If someone shows up and says "I was with you at lunchtime and you didn't have pizza" then maybe I would start to doubt them, but until then, I just assume that they said they had pizza, they had pizza. And nobody here has shown up and said "you didn't have pizza." or the analogous.
posted by If only I had a penguin... at 2:59 PM on February 9, 2016 [4 favorites]


Yeah, I saw one instance on Day 4. The no contact thing doesn't sound like "lying under oath" to me, it just sounds like forgot/wrong/etc.
posted by If only I had a penguin... at 3:00 PM on February 9, 2016 [1 favorite]


Day 5:
Henein says that's not what she's asking, she says she was asking why she didn't tell police about Ghomeshi coming home with her.

"So that was a lie," the lawyer says of the statement.

"Yup," the witness said.
For example.

I think he'll still be found guilty, though. I doubt the judge will take this to mean the underlying complaint is a lie.
posted by Justinian at 3:03 PM on February 9, 2016


Yeah, that was the example I found. I searched for the word lie and didn't turn up anymore day 5, but if you say the other witnesses also admitted to lying under oath, I believe you.
posted by If only I had a penguin... at 3:07 PM on February 9, 2016


oops...in my earlier post I said Day 4 when I meant 5. Yeah, I meant 5 and that was the example I found.
posted by If only I had a penguin... at 3:08 PM on February 9, 2016


I said "witness", I think it was somebody else who said witnesses. I would have to reread the earlier liveblogs to check but I'm not gonna 'cause like I said I don't think these are the sorts of lies that will cause the judge to toss their testimony.
posted by Justinian at 3:08 PM on February 9, 2016


Or even be deposed prior and then shown to the court.

Just spit-balling here, but what do you all think of changing the rules so that if a defendant refuses to testify, that decision allows the prosecution to used deposed, videotaped testimony? IMHO the right of defendants to confront witnesses should be equivalent to the right of victims to confront (alleged) perpetrators.

The main advantage, besides favoring the ability of the jury to evaluate all of the witnesses included the defendant, would be that the prosecution could move to edit out leading questions, insinuations, etc. by overzealous defense attorneys.

Right now they can object but the jury has already seen it, so the effort is of course worthless.

I realize this might require a constitutional amendment, I'm curious whether anyone thinks it;s a bad idea on its own merit.
posted by msalt at 3:25 PM on February 9, 2016


Just spit-balling here, but what do you all think of changing the rules so that if a defendant refuses to testify, that decision allows the prosecution to used deposed, videotaped testimony? IMHO the right of defendants to confront witnesses should be equivalent to the right of victims to confront (alleged) perpetrators.

In the US you can (subject to some restrictions) introduce a defendant's own statement so long as it's inculpatory. If you got the defendant on the record saying "I did it" you can sure as hell introduce it as evidence.
posted by Talez at 3:41 PM on February 9, 2016 [2 favorites]


To me this trial is an excellent example of why women are often reluctant to come forward to press sexual assault charges. I am sure this surprises no one, but the women who were assaulted have somehow become the ones on trial.

I have had one major recurring thought while listening to the news coverage about Henein's hammering of the witnesses: if I am ever sexually assaulted, in all likelihood many people will not believe me. I will have a low chance of receiving justice and my attacker a low chance of receiving a sentence. In order to have the remotest chance of being believed, society and the justice system would expect me to be "the perfect victim." I would need to do everything "right." That is:
  • fight back physically
  • go to the police right away and press charges
  • immediately cut off all contact with the person who assaulted me.
Oh and of course I would be completely clearheaded and able to put together and carry out a plan if I had just been traumatized. Naturally. And even if I did all that stuff, there's a low chance I'd be believed/my attacker would receive a sentence.

I mean, these aren't really new thoughts. I knew all this stuff before on some level. But this is just so depressing and such a stark, blunt piece of proof. I really, really hope the fact that this is a judge and not a jury trial means Ghomeshi will get what he deserves. Just those links alone about how he plotted and planned and kept dossiers on the women he targeted...ugh.
posted by hurdy gurdy girl at 3:48 PM on February 9, 2016 [26 favorites]


No, the public perception of the system has become warped to the point where people think the job of a defence lawyer is to exonerate their client. It isn't and never has been. Their job is to make the prosecution prove their case.

(This is what I was told by a lawyer who worked with Clayton Ruby for quite some time. This is not a minority opinion.)


I have literally quoted you chapter and verse from an ethics code binding Canadian lawyers: "When defending an accused person, a lawyer’s duty is to protect the client as far as possible from being convicted" (except by a court of law upon sufficient evidence). This is not some random aspirational document put together by aggressive defense attorneys. This is a code adopted by the profession to which all under its jurisdiction (*) are supposed to adhere. That is not a minority opinion, either. It's consistent with U.S. ethical codes binding attorneys--I say that with certainty. I don't know what else to tell you.

The only reading of your paraphrase to me that makes sense in light of these codes and the history of Anglo-American jurisprudence is actually unfavorable to your position--it's a rejection of the very idea that a client needs to be exonerated by his attorney, because there is no need for exoneration prior to the prosecution's properly making its case. If you believe that, you are unlikely to be making the argument that all a defense lawyer should be doing is, basically, checking the work of the prosecution, because you are starting from a comprehensive assumption of total innocence.

(*) In the U.S., these codes are adopted by state, and it looks like there are some jurisdictional variations in Canada, as well, but this is a point on which I don't think there's much dissent.
posted by praemunire at 4:00 PM on February 9, 2016 [8 favorites]


And I've told you what an actual Canadian lawyer, who isn't exactly low profile, has told me. The key point you're glossing over is:

(except by a court of law upon sufficient evidence)

The position you're taking is that no evidence counts as sufficient, and lawyers must do everything they can--including smearing victims--to ensure their client doesn't see jail. That's utter horseshit, and as pointed out above, as officers of the court all lawyers in Canada have a duty to justice. Using every dirty trick possible to get a client off is by definition not justice.
posted by feckless fecal fear mongering at 4:08 PM on February 9, 2016 [5 favorites]


So many things about this situation get me. But my analogy for the discussion here is that if we have a grandmother who is being robbed blind and abused by her grandson, despite a lifetime's worth of experience with money, etc., no one really enters a credibility argument that her Christmas cards to him and loving emails show that he was not robbing her blind. We recognize that she is capable of being a victim and still behaving in a close way.

The idea that women have to behave in an avoidant way to prove something happened is kind of toxic. I grew up in Toronto very close to Jian's current house and our circles have overlapped since Moxy Fruvous was busking in the Annex. I know exactly why these women may have kept on with him. I live in the tolerant circles where anything, really, sexually goes, at least once, and if you are a "cool girl" of a certain era in liberal Toronto, the last thing you really want to do is raise a stink with a -- the -- CBC host of Our Generation, gatekeeper of a particular mostly-WASP strain of culture, over something you are barely sure happened because it was absurdly violent out of nowhere. (Basically Ira Glass, for you Americans.) So continuing to consort after the fact is pretty much like being a good grandmother to the tribe.

And that's the problem: we still haven't understood how trauma works, how growing up in a culture as a child of the 70s, through the AIDS and no means no at Concordia and Queens, through to hookup culture, especially among the ironic media crowd, impacts on how women deal with assault. So making a credibility argument based on an assumption that a woman would behave a particular way is whack. I am waiting to see what the verdict is.
posted by warriorqueen at 4:38 PM on February 9, 2016 [27 favorites]


...which is what Svea is sharing; amazing work Svea. MeMail me if you want a partner in stories.
posted by warriorqueen at 4:45 PM on February 9, 2016 [2 favorites]


I blame the prosecution for this mess. Their narrative was archaic and set up this quagmire. No one is perfect. I don't care what these women did or didn't do that didn't seem "proper". You have people convicted of killing and assaulting criminals, yet none of these women were even remotely in the same category, but are expected to be some romanticized notion of perfect ladies.

Besides, when a husband murders his wife, do we assume he shouldn't be charged since she stayed with him all those years? Do we let him run around loose on the streets because his victim said her vows to him in public once upon a time? Does that make it all okay?

Of course not. Her actions are irrelevant to his crime of assault and murder. You have no right to hurt someone or take her life. It is not okay because it is convenient for you, or the other person has not perfected the ways of harm reduction. Making damage to another person is wrong. We can try to justify or normalize it, but there is always sinister intent, and the more someone gets away with it, the more harm they wish to cause because now they think they are superior and thus, entitled. They become addicted to harming others, always looking for vulnerable people they can bait, prime, groom, beguile, and then intimidate.

I shudder to think how many decades back women will be set because the Crown is not operating in 2016. Women smoke weed, get drunk, have ill-advised flings, keep bad friends, take x-rated selfies, do silly things...just like men. That is no one's business and does not make them a viable target for abuse. Sorry, ladies, the law only protects you if you make the Virgin Mary look like a floozy. If I were making the case for the prosecution, I certainly would go in with realism and not a fairy tale any mediocre defence lawyer can poke holes in.
posted by Alexandra Kitty at 5:01 PM on February 9, 2016 [6 favorites]


attempting to destroy their credibility by questioning inconsistencies in the details of their accounts

That's.....just being a defense attorney. I guess she could be criticized for not actually trying to defend her client, but that's a short-sighted view.
posted by jpe at 5:14 PM on February 9, 2016 [1 favorite]


That's.....just being a defense attorney. I guess she could be criticized for not actually trying to defend her client, but that's a short-sighted view.

Don't disagree. But outside of the legal realm, we also know that this is a reputation management gambit by Ghomeshi - convicted or not, he wants to walk away from this with the doubt about the assaults firmly sowed, fed and watered in alot of people's minds.

The legal strategy is of a piece with the public relations strategy. That's nothing unprecedented, but it's a calculated strategy, with shockwaves that will be felt by other complainants in sexual assault cases, regardless of the verdict.

It's fiendishly brilliant at great human cost.

Goddamn.
posted by mandolin conspiracy at 5:32 PM on February 9, 2016 [2 favorites]


I wish this case had been held with a media ban on it. I'm sick of people pouring over in minute detail what these women acted like
I respect rabble for not showing his face. I get sick everytime I see in it my feeds. The reporting on this has led me to switch my mind about making a report in my own abuse which my therapist and I had been leading up to lately. This is just a prime example of why we don't come forward. And not just media attention but the countless people who this become an intellectual exercise. I don't know. It's making me irrationally angry that other people are even talking about why the women aren't believed. (Talking vast of internet not here)
posted by kanata at 7:18 PM on February 9, 2016 [4 favorites]




Systematically, making sex a compulsory private behavior forces the choice between overlooking abuse or convicting without evidence in all but the most extreme cases. Maybe we can mix our DNA up with the bonobos and introduce a norm of public sex. I just don't see other ways out.
posted by idiopath at 8:42 PM on February 9, 2016 [1 favorite]


A very relevant article published in Melbourne yesterday

Without going into the horrors of the cases it details, this point:

Why, for example, do people come out in droves to defend sports stars accused of similar crimes? Why are we bombarded with examples from our supposedly 'civilised' countries that show entire communities siding with the young men who rape women at parties because they're 'good boys' who 'made a mistake' and 'what else could they be expected to do when she was drinking?'

Why do less than 10 per cent of reported rapes result in convictions? Why does a victim's profession, fashion sense, sex life and blood alcohol level still act as mitigating factors in how much people are willing to sympathise with her or even believe her in the first place?

It isn't enough to rage about individual outcomes when we as a whole society are complicit in perpetuating caveats and extenuating circumstances for rape. It shouldn't be relevant that the 17-year-old Norwegian girl raped by Djohan, Kumar and Latif had been drinking with the trio before they decided to drag her into a toilet and take turns raping her. And beyond proving that consent was impossible to give, it shouldn't matter that blood reports showed Norma was high on amphetamines and had a blood alcohol level of 0.35.

But there are still people who believe that women forfeit their right to sexual agency and sovereignty when they're drunk or out with men they don't know or flirting or talking with them or kissing them or behaving as if they live in some kind of fantasy la la land where women might actually have an equal right to decide when and where sex is consensual and not just have it forced upon them. Sometimes they work at the Department of Public Prosecutions. Others are the witnesses who make judgments about how women were behaving in bars. Still others are the friends and family members who eagerly await the day their sons are released from the 'nightmare' of a vengeful slut who got what she was asking for and then cried foul afterwards.


Ghomeshi made a point of getting women alone for the sole purpose of making sure they wouldn't be believed.

He did this over, and over, and over again.

So, remember this:

On October 23, 2014, Ghomeshi's lawyers SHOWED CBC MANAGEMENT VIDEO OF HIM BEATING A WOMAN.

They were also shown images of a woman who had a broken rib, both the break and the photo were provided by Ghomeshi.

CBC management did not contact the police. Ghomeshi's own legal counsel showed it to them.

This was calculated to preemptively say that it was somehow consensual. To cast doubt.

He was documenting. Carefully.

That was his strategy, and it still is. He's been calculating this from the get-go.

Jian Ghomeshi is a predator.
posted by mandolin conspiracy at 8:58 PM on February 9, 2016 [22 favorites]


Systematically, making sex a compulsory private behavior forces the choice between overlooking abuse or convicting without evidence in all but the most extreme cases.

For every other crime, eyewitness testimony is evidence. If this were a trial where multiple people were testifying that a person known to them (the same person) had carjacked them from a parking lot in more or less the same way and there were no accompanying circumstantial evidence, would we be calling that "without evidence"? How is eyewitness testimony not evidence?
posted by If only I had a penguin... at 9:02 PM on February 9, 2016 [5 favorites]


The position you're taking is that no evidence counts as sufficient,

I am most certainly not, which should be obvious from the fact that I have said that, based on the testimony of these women and the statements of those who weren't called to testify, I think he is guilty. I always start from the position of believing a woman who says she's suffered sexual assault, and I've seen nothing related to this case that would move me significantly off that position.

But sufficient evidence, among other things, requires that the evidence be scrutinized and tested according to the methods available to us in the justice system. That includes cross-examining witnesses and impeaching them as permitted by the rules of evidence.

as officers of the court all lawyers in Canada have a duty to justice

The statement made in that post was not very precise and confounded the responsibilities of government-paid attorneys and private attorneys. All members of the bar are officers of the court. As officers of the court, they have certain responsibilities. For instance, not to enter evidence into the record which they know to be false. Under most circumstances, if Ghomeshi told his counsel that he raped his victims and she still put him on the stand to deny what he had told her, that would be a violation of the duties of all lawyers. But prosecutors (and their civil counterparts) have special responsibilities precisely because they are acting on behalf of the state and the state's only legitimate interest is in a just and accurate verdict. By their nature, these particular and extra responsibilities do not devolve upon defense counsel. If Ghomeshi told his counsel, credibly, that he had raped those victims, she would not be obliged to put him on the stand and question him about it, nor (under most circumstances) to inform the prosecution of his statements, whereas in most common-law systems there is a requirement that the state hand over any exculpatory evidence to the defense at some point.

Using every dirty trick possible to get a client off is by definition not justice.

Making up evidence is a dirty trick. Impeaching a witness through their own undenied prior statements is not. I think it is well past time that the rules of evidence were thoughtfully amended on this point (and on a number of others) to better reflect our understanding of whether certain kinds of behavior by victims affects the credibility of their statements. Until that day comes, demonstrating that a witness lied to the police about something is not a dirty trick.

And I've told you what an actual Canadian lawyer, who isn't exactly low profile, has told me.

If we're measuring them, I'm an actual government lawyer. To the extent that the systems might differ (I am U.S.-based), I have provided quotes from a fairly (let's say, out of an abundance of caution) authoritative document.

I understand that you find what's happening in the trial outrageous. I do, too. But the particular claims you are making have implications that go way, way beyond this trial, or even rape trials generally, and you would not like the world you are arguing for. The problem here is not that counsel is zealously defending her client by testing the evidence against him according to the established procedures. The problem is that this particular procedure has a damn serious flaw, arising from a nasty combination of outdated understanding of psychology and misogyny, and so women are suffering needlessly.
posted by praemunire at 9:12 PM on February 9, 2016 [13 favorites]


If Ghomeshi told his counsel, credibly, that he had raped those victims, she would not be obliged to put him on the stand and question him about it, nor (under most circumstances) to inform the prosecution of his statements, whereas in most common-law systems there is a requirement that the state hand over any exculpatory evidence to the defense at some point.

So I don't recall where, but it would have been a major newspaper, not a law journal or anything, I actually read within the last week or so that Canadian law is evolving on this point and there IS something approaching a requirement that the defence turn over incriminating evidence, just as the crown has to turn over exculpatory evidence. Well, not "just as." It's a weaker expectation and it's something that was presented as evolving over time, not a statute or established principle of common law. I think the article was presented as background for the Ghomeshi case, though not about any particular piece of evidence in the trial.
posted by If only I had a penguin... at 9:23 PM on February 9, 2016 [2 favorites]


How is eyewitness testimony not evidence?

It is. I once provided eyewitness testimony for a case where a guy was beating up a pregnant woman in front of our house.

He got 18 months in a plea deal. The defence didn't want to call me to the stand, because the plea was better than what would have happened if I had testified, as I gather from the the Crown's post-sentencing thanks she gave me.

When the Crown brought the defence lawyer out into the hall to interview me about my witness statement and what I saw, he realized pretty quickly it was a done deal. I didn't know that at the time.

In that particular case, the woman who was assaulted didn't even appear for the trial, and even without a statement from her, the conviction happened. My statement was the only thing that put him in jail.

So, praemunire's point stands:

Making up evidence is a dirty trick. Impeaching a witness through their own undenied prior statements is not. I think it is well past time that the rules of evidence were thoughtfully amended on this point (and on a number of others) to better reflect our understanding of whether certain kinds of behavior by victims affects the credibility of their statements. Until that day comes, demonstrating that a witness lied to the police about something is not a dirty trick.

So, as a witness for the Crown, the day I walked into court for the above-mentioned assault case, a few things were going on - I had written down exactly what I saw, down to the second, including what hand (left or right) the guy did this or that with when he was attacking the woman, so when my statement was taken, the cop looked up at me from her notebook and said "Well, that's the best witness statement I've ever gotten."

After the plea and sentencing agreement were sewn up, the defence came back out into the hall again, and he kind of got up in my face and said "Yeah, well, I would have cross-examined you for like an hour and a half."

He seemed a bit frustrated.

But to praemunire's point, as distasteful as it would have been, the defendant would have had the right to have me cross-examined out the wazoo by his lawyer had it proceeded to trial. I say that even though I know exactly what horrible things he did, and knowing that actually, he's been arrested for abducting women and forcing them into prostitution since then.

The Crown had let me review the copies of the what the cop had written in her notes ahead of the case coming up on the docket, and then I produced my own notes and said "Well, I think this will all be consistent."

Needless to say the Crown was thrilled with me as a witness. It's not a happy story, though, but I'm glad I put a serial abuser in jail for a year and a half because I didn't ignore the yelling outside that day.

Point is, speak out, and document everything, particularly if you're NOT the victim.

Ghomeshi documented everything. Remember that.
posted by mandolin conspiracy at 9:39 PM on February 9, 2016 [6 favorites]


Oh, a well-known example just came to mind: Paul Bernardo's lawyer handed over to the crown videos of Bernardo raping his victims. That was quite a few years ago. I don't know if he did it because it was required or because he thought it was good trial strategy. Good trial strategy is hard to imagine though -- I mean even if he wanted the videos viewed in court (Say to implicate Homolka, which seemed to be part of his strategy), why not keep them to introduce as evidence for their own side, rather than handing it over.
posted by If only I had a penguin... at 9:39 PM on February 9, 2016


there IS something approaching a requirement that the defence turn over incriminating evidence

Paul Bernardo's first lawyer, Ken Murray, withheld videotapes of multiple killings and sexual assaults by his client as part of his defense strategy. He wanted to use these as trump cards to show that Karla Homolka was the killer of some of the victims and thus show his client innocent of some of the murder charges.

Murray was charged with obstruction of justice, but later found not guilty. The judge reasoned that "... On the issue of whether Mr. Murray willfully intended to obstruct justice, because it was feasible that Mr. Murray could have used the tapes for the defence and may well have believed that he had no obligation to disclose the tapes until the trial, he found the necessary mens rea was not proved. Accordingly, he found him not guilty."

Shit like this, that a defense lawyer can get away with hiding direct, smoking-gun evidence of two of the most notorious serial killers in Canadian history is reason these laws need to change. Karla Homolka is not behind bars today as a dangerous offender as a direct result of Mr Murray withholding that evidence.
posted by bonehead at 9:42 PM on February 9, 2016 [6 favorites]


Ken Murray was tried and acquitted for obstruction of justice.

Murray had been charged for withholding videotapes showing the rape and torture of Bernardo's victims. He held onto the incriminating tapes for 17 months before turning them over to prosecutors.

posted by mandolin conspiracy at 9:44 PM on February 9, 2016 [1 favorite]


Clearly my thinking was in a muddle there, for the very premise of what I was saying was that a third party witness would make a difference.

Point stands, the expectation that sex be private complicates these cases. And currently in a way that disfavors victims.
posted by idiopath at 9:49 PM on February 9, 2016


Shit like this, that a defense lawyer can get away with hiding direct, smoking-gun evidence of two of the worst serial killers Canada has seen in a generation is reason these laws need to change. Karla Homolka is not behind bars today as a dangerous offender as a direct result of Mr Murray withholding that evidence.

Yes, this. Murray's a monster in his calculus. I mean, as a human being, if you knew that you had these in your hands...

From bonehead's link:

Mr. Murray held the tapes for some 17 months; it was his evidence that he intended to sue them after Bernardo’s preliminary hearing to attempt to negotiate a plea for him, or, at trial, to demonstrate that it was not Bernardo who killed Leslie Mahaffy and Kristen French, but Homolka. That was Bernardo’s defence from the outset. He intended to use the non-critical tapes to show that Karla was not a battered wife who was coerced into participating in Bernardo’s sexual crimes’ she was a willing participant in gross sexual conduct. Murray felt that he could hold the tapes in his file to show at trial that Karla was the actual killer of the two girls.

However, in August 1994, Bernardo’s instructions changed. He maintained that he had no contact with the two victims and he instructed Murray to suppress the videotapes (which clearly demonstrated Bernardo’s involvement with the victims). Mr. Murray arranged for John Rosen to take over the defence of Bernardo, and applied to the trial judge to be removed from the record as counsel for that accused. He sought the advice of the Law Society as to what he should do with the videotapes, and was advised in writing to turn them over to the judge presiding at the Bernardo trial. He attempted to do that, but ultimately the tapes were turned over on consent to Bernardo’s new counsel, John Rosehn, with the approval of the court. Mr. Rosen, about 12 days afger [sic] viewing them, turned them over to the police.


Ghomeshi hasn't killed anyone (yet - "Hey I choke women without warning, what could possibly go wrong?"), but he documented. He did so for the precise reason it would assist in his defence. Just like Paul Bernardo did.
posted by mandolin conspiracy at 9:59 PM on February 9, 2016 [6 favorites]


Some people seem to have a strange idea of how courts work.

Courts don't have magical truth-finding machines. What they have is rules of evidence that try to get relevant, useful information in front of the fact-finder while trying to filter out or devalue information that tends to be useless or harmful (hearsay, testimony from witnesses who appear to be dishonest or honest but mistaken, admissions obtained under duress, admissions obtained in circumstances where they might have been concocted by police etc. etc.).

But when the evidence is in, there's no special trick the court can use to find the truth. Sometimes the evidence is strong and the result is pretty clear. Sometimes the evidence looks strong but actually isn't. When the only evidence is one person's word against another, or one person's testimony against the defendant's right to remain silent, the only way the judge or jury can try to even approximate the truth is to reach into its grab-bag of prejudices and assumptions about how people probably would behave in the circumstances and make the best guess it can.

The Ghomeshi case could be exhibit A in the trial of hard cases making bad law, because he's not a very nice person, there are multiple accusers and it really looks like he's guilty (not that an "obviously" guilty person has never turned out to actually be innocent), so his lawyer is running a highly aggressive, high-risk defence that unfortunately involves being highly unpleasant to some people who are probably telling the truth.

But the presumption of innocence isn't meant to get weaker as the charges get more serious or the defendant less popular. The same rules apply to someone who really is the victim of a campaign of false accusations, and heaven help that defendant if they're poor, or ugly (plenty of research on this), or from a racial minority or an unpopular social group, or if the accusers are police, and their lawyer thinks it's unethical to be mean to the prosecution's witnesses...

That's not to say courts are perfect. Of course they're not! But there's no point in condemning them without at least trying to understand the compromises they need to make when they come up against unsolvable problems.
posted by A Thousand Baited Hooks at 2:45 AM on February 10, 2016 [9 favorites]


On further reflection, turning the lived experience of a human as victim into the object we call "evidence" has multiple ethical and human problems.

Can we name a single factor of a memory itself, making memory or experience look like faked evidence, that isn't also a symptom of abuse or trauma? People who go through trauma instinctively deny the reality of that trauma. They behave in self-destructive ways pretending that trauma isn't important, or even actively trying to recreate the experience. They change their story over time as they heal and try to understand their past.

Also reifying the experience of being a victim (turning it into a legal object we call evidence) risks ignoring the human cost of re-experiencing the pain. Memory isn't a photograph or journal we can dispassionately recite from, it's a process of actively recreating internal states we have had in the past (including emotions).

This isn't saying, of course, that we shouldn't believe a person's story of experiencing private violence. But it's saying that the nature of the human experience of emotional violence makes arguing passionately its reality itself a violent act, and this is a structural problem within adversarial justice.
posted by idiopath at 3:44 AM on February 10, 2016 [4 favorites]


Thanks for the link to Vikanders series. Just seeing all those first person experiences stacked up day after day really drives home how our culture accepts sexual violation of women.
And it resonates with my own experience. Add in the whispered stories of friends and it just seems to be a constant weight on our lives. And it seems unimaginable that a woman might complain because isn't this just what being young and female looks like? Isn't this just my life, and that of my friends?
posted by chapps at 8:00 AM on February 10, 2016 [3 favorites]


I think I'm just incredibly depressed in that sexual assault cases are played as "well, let's theorize about the judicial system while these actual real life women live with the trauma for their rest of their lives" online. Awesome, I can tell myself and other women I know who have horrible experiences that at least we're contributing to that.
posted by Kitteh at 8:08 AM on February 10, 2016 [7 favorites]


So if Ghomeshi has shown Heinen other photo evidence of the women he's beaten (such as the video shown to CBC management), and Heinen sits on the evidence (because it doesn't involve the three women whose assault the Crown is prosecuting), is there any ethical / professional exposure, like Murray's obstruction of justice charges in the Homolka case?
posted by anthill at 8:11 AM on February 10, 2016 [1 favorite]


I get that our legal system depends on lawyers vigorously defending people against the state, why I'd want the same treatment if I were accused of a crime, and how it could lead to terrible abuses if a different approach were used. I really do. But still...I really don't see how you go home and sleep at night after putting somebody you *know* is guilty of heinous crimes back on the street. Have you improved society, made it a better, safer, happier place? Perhaps in the most abstract terms, but...I just cannot perform the mental gymnastics which must be involved. Maybe you take a course in law school.
posted by The Card Cheat at 8:44 AM on February 10, 2016


But the presumption of innocence isn't meant to get weaker as the charges get more serious or the defendant less popular. The same rules apply to someone who really is the victim of a campaign of false accusations, and heaven help that defendant if they're poor, or ugly (plenty of research on this), or from a racial minority or an unpopular social group, or if the accusers are police, and their lawyer thinks it's unethical to be mean to the prosecution's witnesses...

There is a difference between the defence lawyer "being mean" to the prosecution's witnesses and "exploiting and perpetuating the misogynist beliefs that already ensure rampant sexual abuse of women."

I mean, I get what you're saying about the problems in the system, but I think framing this as "being mean" to a witness is disingenuous.
posted by hurdy gurdy girl at 8:46 AM on February 10, 2016 [8 favorites]


I think I'm just incredibly depressed in that sexual assault cases are played as "well, let's theorize about the judicial system while these actual real life women live with the trauma for their rest of their lives" online.

This isn't really an accurate description of this thread. Most of the participants in the legal diversion have expressed a direct interest in finding ways to reduce the trauma for survivors who come forward to testify against their attackers, within the restrictions of the legal system. That none of us (as far as I know) are actually in a place to do anything about it doesn't change that the motivation of this discussion lies not in some abstract discussion for funsies but a genuine interest in making things better for survivors of sexual abuse.
posted by tobascodagama at 9:00 AM on February 10, 2016 [3 favorites]


In case anyone else is only coping with this trial by focusing on scholarly pushback against upsetting trends and practices, professors David Tanovich and Elaine Craig have written for a piece for the Globe published today against the practice of "whacking" complainants in sexual assault trials, which includes links to their own scholarly research:

"The Ethical Identity of Sexual Assault Lawyers", forthcoming from the Ottawa Law Review

"Examining the Websites of Canada’s ‘Top Sex Crime Lawyers’: The Ethical Parameters of Online Commercial Expression by the Criminal Defence Bar", published in UBC Law Review

"The Inhospitable Court", forthcoming from the University of Toronto Law Journal

"'Whack No More': Infusing Equality into the Ethics of Defence Lawyering in Sexual Assault Cases", originally presented at the International Legal Ethics Conference in Banff in 2012
posted by there's no crying in espionage at 9:02 AM on February 10, 2016 [9 favorites]


That's not to say courts are perfect. Of course they're not! But there's no point in condemning them without at least trying to understand the compromises they need to make when they come up against unsolvable problems.

Let's not pretend the conduct of the defense here was ideal. I'd welcome an examination the real social costs to women who, in the vast majority, won't even report sexual abuse because they fear exactly the approach that Heinen has chosen to use.

The status quo may work for the innocent, but it does not work for better than 90% of the victims of sexual assault. That seems fundamentally unjust to me.
posted by bonehead at 11:19 AM on February 10, 2016 [4 favorites]


2nding Tanovich's "Whack no more". Great article. p. 507 is a crushing retrospective on the neanderthalic 1999 Ewanchuk / McClung case.
posted by anthill at 12:27 PM on February 10, 2016


There is a difference between the defence lawyer "being mean" to the prosecution's witnesses and "exploiting and perpetuating the misogynist beliefs that already ensure rampant sexual abuse of women."
It's not the defence lawyer's job to play second jury and deliberately choose to run a weak defence because they think their client "should" get convicted.

I mean, how would you (or anyone else) feel if you were facing serious charges and your lawyer said "now, you might be innocent but I'm not comfortable with the broader social implications of the defence I'd need to run to get you acquitted"?

Of course, there are plenty of things a defence lawyer shouldn't do - like lie to the court, or suggest jury nullification. But until the law is changed to exclude the kinds of tactics Heinen is using (maybe it should be! I don't know), it's not fair to condemn her for using them.
Let's not pretend the conduct of the defense here was ideal.
Of course it wasn't ideal; courts are human institutions. The problem is that it's really, really hard to come up with a way of fixing the problems in this kind of case without making it impossible to defend someone who is actually innocent.
Great article. p. 507 is a crushing retrospective on the neanderthalic 1999 Ewanchuk / McClung case.
I don't have much sympathy for judges like this, though.
posted by A Thousand Baited Hooks at 12:38 PM on February 10, 2016 [1 favorite]


Of course it wasn't ideal; courts are human institutions. The problem is that it's really, really hard to come up with a way of fixing the problems in this kind of case without making it impossible to defend someone who is actually innocent.

The fact is though that Heinin's conduct is hurting real people, right now, today. See for example, the quote from a victim above about her line of questioning at trial. We know that more than 9 in 10 victims never report at all. I hold Heinin directly responsible for that statistic (for her part of it , of course).

What she has done in the past week may be called "ethical" by the bar, but she's suppressing the natural justice rights of victims of sexual assault. This has to change, and lawyers like Heinin, and those who think her line of argument is defensible are symptoms of the disease.
posted by bonehead at 12:47 PM on February 10, 2016 [10 favorites]


But until the law is changed to exclude the kinds of tactics Heinen is using (maybe it should be! I don't know), it's not fair to condemn her for using them.

It damn well fucking is acceptable to condemn her for exploiting shitty, misogynistic cultural stereotypes in a "not guilty on account of the victim being a slut" defense. I'm getting really tired of all these arguments about how it's somehow undermining justice to say "hey, if a defense lawyer is using a shitty misogynistic defense based on cultural fuckups, they're a pretty horrible person." Maybe if defense lawyers want to clean up their reputation, they might consider saying these sorts of defenses aren't acceptable.
posted by NoxAeternum at 1:00 PM on February 10, 2016 [7 favorites]


Related to bonehead's comment above, the Tanovich & Craig article in the Globe gave rise to some interesting discussion on twitter this morning. Peter Sankoff, professor of criminal law at the University of Alberta, observed that complainants in sexual assault cases may not be forthcoming with disclosure to police or the Crown due to (justifiable! totally sympathetic! I would want to do exactly this if I ever reported anything that happened to me, which I won't! guess why!) fear that they'll be "whacked" when they testify -- which creates opportunities for brutal cross-examinations that arguably constitute "whacking". So it's a problem insofar as it influences what sexual assault survivors are willing to disclose during investigations, even if the strategy happens not to be deployed in a particular trial.

Sankoff's conclusion, which is certainly shared by Tanovich and Craig, was that we gotta talk about constraints on evidence. Even if Henein's cross-examination was conducted pursuant to what the law allows, that doesn't mean that the law can't be subject to change.
posted by there's no crying in espionage at 1:02 PM on February 10, 2016 [6 favorites]


Seeing Jian Ghomeshi's name on the front page reminded me of the discussion about Cosby the other day and whether or not it was still OK to appreciate his comedy. Other than a few comedy bits, I was never a particular fan of Cosby. However, I loved Moxy Früvous for a long time and now their music has been tainted by Ghomeshi's actions and I have no desire to listen to them again.
posted by bendy at 4:05 PM on February 10, 2016 [3 favorites]


I was a bit taken aback by Heather Mallick’s breezy ironic take in the Star today on what women ought to do in order to be successful sexual assault complainants -- in reality, no matter what signifiers of “credibility” you can check off from a list, the goalposts will always be shifted away and anyone who wants to will find other misogynist myths they can cite to explain why they can’t believe what you tell them about what happened to you. I don’t think it is necessary or productive to craft an extended joke about it at the expense of women whose rapes you imagine to be straightforward and easy to cope with. But I suppose we have been in the feminist commentary twilight zone ever since Brenda Cossman wrote that article for the Globe and Mail about what the law would have to say about some hypothetical alternate scenario where the women Ghomeshi punched did ask for it.
posted by there's no crying in espionage at 6:28 PM on February 10, 2016


Catchfire, somehow I missed your comment before...thank you for your role in bringing Svea's series to fruition. And also for the decision NOT to run Ghomeshi's photo.
posted by hurdy gurdy girl at 10:15 PM on February 10, 2016 [3 favorites]


I don't know if Mallick sounds breezy so much as she does irate. Is she suggesting people turn up at that event to make their feelings known?
posted by cotton dress sock at 10:32 PM on February 10, 2016 [3 favorites]


I agree, cotton dress sock--that Mallick piece did not read as breezy or a joke to me. She seems stone cold furious.
posted by hurdy gurdy girl at 11:29 PM on February 10, 2016 [5 favorites]


Maybe “joke” is too strong a word! But rape survivors in general are already collateral damage in this whole affair (who among us has not been feeling cross-examined personally, has not been going over and over and over everything we did "wrong" and how it must make us liars, for the last week and a half? I was so grateful for Lucy's statement delivered by Gillian Hnatiw on the steps of Old City Hall last week, for the reminder that in my personal life there do not need to be any stakes attached to how I process what happened to me), and I wish we could be more careful with one another than this. It is extremely hard for me to read someone else’s stone cold furious list of all the hallmarks of “credibility” that these complainants were raked over the coals for lacking in the form of sarcastic recommendations for future victims, because victims who do happen to fulfill the "criteria" are still not believed or respected. I hope it is possible to make the point that misogyny will create opportunities to undercut women’s credibility no matter what without imagining out loud a scenario where Linda Frum would be a perfect rape victim.
posted by there's no crying in espionage at 5:07 AM on February 11, 2016 [2 favorites]




I just saw that on Twitter, mc, and threw up my hands and went, "WTF."
posted by Kitteh at 7:50 AM on February 11, 2016 [2 favorites]


What???
posted by cotton dress sock at 8:09 AM on February 11, 2016


Related to the theme of the justice system utterly failing women who are abused by men, Zoe Quinn drops charges against her ex-boyfriend who started GamerGate.
posted by tobascodagama at 8:18 AM on February 11, 2016


Emphasis added:

The relaxing of bail conditions to accommodate already scheduled trips or other circumstances is common, said Leo Russomanno, a criminal attorney who often deals with bail variations. But, it could also mean more flexibility when preparing for the trial. For example, if Ghomeshi kept letters and messages in his home it would be much easier to search through them if he’s not living elsewhere.

And then there’s the issue of women's safety. The current bail conditions prohibiting him from contacting several women only cover the currently ongoing proceedings and witnesses. There are no conditions restricting contact with other alleged victims. There are 23 allegations against Ghomeshi


And from a prior CanadaLand article:

That's when he reminded her in an aggressive tone that he had kept records: "i have text messages...you WANTED it..."

Three other women told me similar stories, supported by evidence, of manipulation and entrapment. Ghomeshi would establish an electronic paper trail before the alleged violence took place and would make efforts to continue a correspondence afterwards. It followed a pattern.


You know, I was holding some hope that Ghomesi would get convicted on some of this stuff, despite the defense strategy of throwing shit everywhere to see what might stick. But this bail relaxation thing just...yeah...fuck it. Our system apparently either can't handle this type of situation or it doesn't give a shit about handling this type of situation. Yeah, innocent until proven guilty and sure he needs to be able to participate in his own defence, but holy fuck - all of this together is so goddamn depressing. I can't see any reason why anyone who is a victim of sexual assault would want to go forward after this.
posted by nubs at 8:24 AM on February 11, 2016 [5 favorites]


Apparently the verdict is likely to be rendered tomorrow (CBC live updates).

Kevin Donovan and Alyshah Hasham, tweeting the Crown's closing argument:

Crown: Court doesn't require expert evidence to explain why a complainant might come forward years later.

Why did we not call an expert , crown muses. He says lets turn to credibility of witnesses

I feel that this was a terrible, terrible choice... Is the following intuitively understandable, even to an experienced judge?

Crown: Lucy's reaction: "went to great lengths to normalize the situation." Candidly admitted her behaviour might seem bizarre."

Crown: Violence came out of nowhere. Didn't have a way to frame it or process it. She knew they were in same industry. Was a people-pleaser
posted by cotton dress sock at 9:04 AM on February 11, 2016 [1 favorite]


Oh, great. Now Heinen is taking it upon herself to define appropriate reactions. "H: You might forget an email, letter. But LD did not forget her feelings"; "H: no prior existing relationship here. incident occured on first date. No power imbalance, no financial dependence etc".

The Crown fucked up, imo. Massively.
posted by cotton dress sock at 9:54 AM on February 11, 2016


It's like they *wanted* to lose.
posted by The Card Cheat at 10:25 AM on February 11, 2016


Crown: Court doesn't require expert evidence to explain why a complainant might come forward years later.

Why did we not call an expert , crown muses. He says lets turn to credibility of witnesses


Crim is really not my area, but I would have called in some expert testimony to explain the range of post-assault behaviours. It's not enough to argue that there is a range, that some acts may seem bizarre, you need to establish those as facts before the Court. Not only that, but you directly counter the defence's main/only/best argument. Now there's nothing to speak against that.

The Crown didn't know the full range of facts going in, and were surprised by Henein. That may not have been the Crown's fault, but rather in the incomplete dossier handed to them by the cops -- who knows? But the additional fourth witness not being on the list from the beginning, the lack of expert testimony addressing the post-assault behaviours -- it all looks like Amateur Hour.

Going up against a stone cold pro like Henein, and it's Bad Fucking News.
posted by Capt. Renault at 12:19 PM on February 11, 2016 [5 favorites]


Thanks for offering an informed view, Capt. Renault. It kind of just blew my mind that the Crown didn't call expert witnesses, given that it seems they had the opportunity. So they were surprised, because they're allowed to be; why not at that point petition for more time to reformulate their strategy? Why not get a subpoena for Ghomeshi's email records, or another search of his home (not that he couldn't have taken that teddy bear and any tapes with him to Washington or wherever the f he went)? Yeah, the tape he showed the CBC might have been prejudicial, but couldn't it be argued that it was relevant? I mean ok this is just me drawing from years of watching stupid TV law shows, but christ.

I guess he probably can't be tried again for the same crimes. And I guess the Crown can't be sued by a third party, or by the victims (can they?). This is just - incredible. It's got to have a dampening effect on victims coming forward in the future, unless some major paradigm shift happens.
posted by cotton dress sock at 1:42 PM on February 11, 2016 [2 favorites]


I guess he probably can't be tried again for the same crimes

IANAL, just a Canadian, and I think the Crown can appeal an acquittal, but in all honesty I'm not sure what grounds they've left for themselves here to base that on. I know there's another charge that is proceeding, so hopefully they'll be better prepared for moving that one forward; I highly doubt any other complainant against Ghomesi is going to come forward at this point.

I guess there might be civil suits for the victims to pursue, but in all honesty I can't blame them for not wanting to go through a circus again around this.

At this point, I'm left with the likely vain hope that the way this has happened leads to some better process for dealing with sexual assault cases in the future and that some people don't sleep very well when Ghomesi carries on and does this again.
posted by nubs at 2:36 PM on February 11, 2016 [1 favorite]


He is facing a second trial in June relating to complaint by a co-worker at CBC. He's not free and clear yet.
posted by bonehead at 3:00 PM on February 11, 2016 [2 favorites]




No verdict until March 24th?
posted by nubs at 5:17 PM on February 11, 2016


The judge is in a real bind now. If he lets G go (because it sounds like he may have to), women will have it *so much harder*. Few sane women will go to the police when they ought to.

If he convicts G, I don't see how that won't be appealed (successfully, probably). It would have to be done for the sake of PR/encouraging a belief in justice/short term morale (women's), in the hopes things would quiet down by the time the appeal came up. But if the trial wasn't perceived as just by a majority, his professionalism would be questioned, and women would experience a huge backlash.

(The blurb I read about him suggests he does care about social justice, and is fair. Which I suspect means G is getting off this time. I'm angry at that prosecutor.)
posted by cotton dress sock at 10:20 PM on February 11, 2016


From what I understand, the Crown didn't call expert testimony regarding the victims behaviour following the attacks, because there's already case law saying that a witness can't be held less credible for continuing a relationship with her accuser. So long as their stories were consistent regarding the lack of consent, I still have hope.
posted by peppermind at 3:35 AM on February 12, 2016 [3 favorites]


Yes, my impression was they didn't call expert witnesses because the judge was quite clear on the law, in a way a jury would not be.

Also, in the US, a delay until March 24 would suggest the judge is going to write a highly detailed and tightly argued decision, which gives me some hope he knows a conviction will be appealed and is going to affirmatively head off some avenues of appeal by pre-arguing and rejecting some of those arguments.
posted by Eyebrows McGee at 4:59 AM on February 12, 2016 [3 favorites]


I really hope so, Eyebrows McGee.

So long as their stories were consistent regarding the lack of consent, I still have hope.

I guess their reliability and credibility are at issue; the law's the law, but the judge can't unhear those emails. A research-based explanation of these specific reactions would have been so helpful, imo. Also, having gotten everything possible out of the victims before they were put on the stand. Of course it's easy to criticize... But it's down to "reasonable doubt". I think Heinen did her job.
posted by cotton dress sock at 5:44 AM on February 12, 2016


Yes, my impression was they didn't call expert witnesses because the judge was quite clear on the law, in a way a jury would not be.

I don't think the expert witness would have been clarifying the law, but a question of fact. The defence tried to argue that they did X after the assault. A woman who had been assaulted would never do X. Therefore, they obviously weren't assaulted. Even people in this thread have said that a woman wouldn't do X after being assaulted. So the expert witness would testify that victims do all sorts of things, including continuing interaction with the assailant, after an assault.

The idea that he's writing a detailed decision to head off an appeal from the defence gives me some hope. But then again, couldn't he be equally likely to be planning to acquit and heading off an appeal from the crown?
posted by If only I had a penguin... at 6:50 AM on February 12, 2016 [2 favorites]


It would have to be done for the sake of PR/encouraging a belief in justice/short term morale (women's), in the hopes things would quiet down by the time the appeal came up. But if the trial wasn't perceived as just by a majority, his professionalism would be questioned, and women would experience a huge backlash.

Fortunately or unfortunately, this is just not how our justice system works. While this case is obviously hugely symbolic in Canada, it is a real court case, about real people, real facts, and not about PR or morale or our belief in justice.
posted by ssg at 7:05 AM on February 12, 2016 [1 favorite]


I think the possible impact of the decision on the community (and wider society) has to be in the back of his mind.
posted by cotton dress sock at 7:12 AM on February 12, 2016 [2 favorites]


"...because there's already case law saying that a witness can't be held less credible for continuing a relationship with her accuser."

This was news to me when I heard it, and it makes sense. Still, I would like to have had an expert in there to reinforce it, particularly when the post-assault behaviour wasn't an issue going in.
posted by Capt. Renault at 7:13 AM on February 12, 2016 [2 favorites]


I wouldn't read anything into the March 24th date. The judge may be working a bunch of written decisions in this period, not just this one. It's pretty common for judges to have a couple of weeks blocked off just to be writing away undisturbed. Then again, he could be working on just Ghomeshi -- we have no idea.
posted by Capt. Renault at 7:19 AM on February 12, 2016 [2 favorites]


All this about the judge got me wondering about who he is, and hsbrecord. The Star did a profile.
posted by chapps at 7:32 AM on February 12, 2016


This, by all accounts is a very good judge. He's made some really tough calls before. He's the guy that ruled carding unconstitutional, for instance. He seems to write judgements that stand up and get cited as precedents.

I'm not so sure this was such a slam-dunk by the defense either. We'll have to see. In any case, I think we can trust him to administer the law fairly.
posted by bonehead at 7:55 AM on February 12, 2016 [2 favorites]


A very good judge? Paul McLeod of Buzzfeed writes to the contrary. The victim was drugged, complained immediately, went to the cops.... and still didn't get justice.

The Canadian legal system seems horrifically useless at prosecuting sexual assault.
posted by anthill at 9:16 AM on February 12, 2016 [3 favorites]


"I wouldn't read anything into the March 24th date. The judge may be working a bunch of written decisions in this period, not just this one. It's pretty common for judges to have a couple of weeks blocked off just to be writing away undisturbed. "

I'm reading more into the initial wide reports of "verdict expected tomorrow" by court watchers followed by "judge has announced verdict will be delayed until March 24." That suggests to me he specifically wanted time to focus on writing this up really carefully and that it is a specific delay, not a normal timing issue, but it could totally be that he's just swamped. (And, yeah -- while based on the tenor of his management of the trial I don't think he's going to head off the Crown's appeals, it could also totally be that he's very carefully writing up why "we all totally think he's guilty but the Crown failed to prove its case, here are extremely explicit instructions for what the Crown needs to do next time so this doesn't happen again.")
posted by Eyebrows McGee at 9:22 AM on February 12, 2016 [1 favorite]


Most importantly, Horkins had “major concern” about her credibility because she did not move during the alleged rape or immediately after. The judge found that the amount of drugs and alcohol in her system would not have incapacitated her as she described.

For crying out loud. Yeah, what in the world would make someone not move after an assault? Maybe someone with expertise could speak to that. Oh well!
posted by cotton dress sock at 9:25 AM on February 12, 2016 [1 favorite]


Yeah that buzzfeed article made me lose pretty much all hope. Unless there's something buzzfeed isn't reporting (i.e. the decision was actually based on some technicality of law), then that looks very bad. And it also shows him providing a written decision, even when he's acquitting, so not to prevent a defence appeal.

The Star article is just a bunch of lawyers who say they like him and think he's basically fair. That's not the question. The question is does he understand that what Ghomeshi presented as "the way women really behave during and after an assault" is not anything close to true. The Buzzfeed article suggests that he doesn't understand that.
posted by If only I had a penguin... at 9:32 AM on February 12, 2016 [5 favorites]


That buzzfeed article really is bleak, yike.
posted by chapps at 9:44 AM on February 12, 2016 [1 favorite]


The Star article is just a bunch of lawyers who say they like him and think he's basically fair. That's not the question. The question is does he understand that what Ghomeshi presented as "the way women really behave during and after an assault" is not anything close to true. The Buzzfeed article suggests that he doesn't understand that.

Most of us aren't going to bother doing research on a judge's past rulings on similar cases. I would have hoped that the Crown might have spent a bit of time on it, though.
posted by cotton dress sock at 9:47 AM on February 12, 2016 [1 favorite]


For those interested in the Buzzfeed article, the actual decision is here.
posted by mazola at 9:56 AM on February 12, 2016 [3 favorites]


The conclusion, in full:
E. CONCLUSION

[ 66] The allegations with respect to C.P. fail for uncertainty. Her level of intoxication and her fragmented recollection of the events handicap her evidence. The accused denies those allegations. I am legitimately concerned that her memory may have been seeded by her conversations with others and that her sincere recollections of the evening are, in fact, unreliable. It would be dangerous to register a criminal conviction on the basis of this evidence. That charge must be dismissed.

[ 67] Turning to the allegations with respect to Ms. B.. Experience tells us that in most cases where the interested parties give conflicting accounts of the events, the truth will more often than not be found in that version of events that is consistent with what a practical and well-informed person would recognize as most probable or in harmony with common experience. Said more simply, an account that challenges common sense usually requires very close, careful and critical examination.

[ 68] The dynamics of human sexual behaviour are not something that lends itself to scientific understanding, let alone judicial notice or a measurement against the standard of common sense. By way of illustration only, I ask myself: What is the likelihood that this grown man would drug and rape a friend of his younger sister, in his own living room, while his wife and sister asleep upstairs? Never mind that the victim’s friend is sleeping just a few feet away in the same room? On the other side of the coin, what sense does it make that this young woman would force herself on this man, her friend’s older brother, in all the same prevailing circumstances? Either scenario challenges common sense.

[ 69] At the end of a properly conducted criminal trial, where the evidence has been put in at its highest by skillful counsel, such as at this trial, it is very often impossible to confidently declare that the truth has clearly been discovered and the allegations resolved one way or the other. This is one of those trials. I am afraid that I am left in a state of great uncertainty as to where the truth lies in this case and this is a classic form of reasonable doubt.

[ 70] In the pattern of the W.(D.) framework, I am clearly unable to embrace the evidence of the accused as the truth. There are a number of troubling aspects of the defence evidence that prevent me from accepting it. That, of course, is not the end of the matter.

[ 71] The evidence of the complainant and the evidence in support of the Crown’s case also present a number of serious concerns and prevent me from accepting that evidence without great reservation as well. A comparative analysis of the evidence supporting the two contrasting versions of the events leads squarely in this case to reasonable doubt.

[ 72] Our system of justice is not perfect. We have an unfortunate history of occasionally convicting the innocent and probably more frequently, freeing the guilty. When one considers the grave consequences of being wrongfully convicted of an offence such as this, one can understand why nothing less than proof beyond reasonable doubt can be accepted as the foundation of a criminal conviction.

[ 73] I have no hesitation recognizing that this accused has been entitled to the full benefit of the presumption of innocence throughout these proceedings and is now entitled to the full benefit of the reasonable doubt that lingers after a full and careful examination of all the evidence. For all of these reasons, the charges against Mr. A.M.[1] are dismissed.
posted by mazola at 10:12 AM on February 12, 2016 [2 favorites]


That's mildly better. I mean one key factor seems to be the accused denied the assault and provided a different account of it. Ghomeshi did neither. Second, he says that one has to think about which of the stories is more plausible. I think on that score the victims would win over Ghomeshi if his implied story is "I never punched them." since A) He doesn't deny it and B) There's no reason for them to make this up. Third, he seems to think in the buzzfeed case that the women were intoxicated and that might have messed up their memories. No intoxication alleged among Ghomeshi victims. Fourth, he's concerned about how victims talking to one another might have distorted their memories or made the susceptible to suggestion. In the Ghomeshi case, the talking about it came many years later when their memories would be as set-ish as memories get by the time they were talking about it with other victims.

Still, on the basis of that decision, I'm guessing he'll acquit Ghomeshi, too, but those things give me little glimmers of hope.
posted by If only I had a penguin... at 11:14 AM on February 12, 2016 [3 favorites]




I'm not sure about 2-b and 4, IoIhaP, but even granting those points, do you think it'll take the judge past reasonable doubt? I'm not optimistic...

But: Jesse Brown on the defence's suggested motivation, and the bravery of Lucy DeCoutere.

(I don't know if that argument was made?)
posted by cotton dress sock at 3:16 PM on February 12, 2016 [2 favorites]


The Syrup Trap weighs in (satire site) and is on point.
posted by chapps at 8:18 PM on February 13, 2016


Ouch. That is unfortunately spot on, chapps.
posted by hurdy gurdy girl at 12:28 AM on February 15, 2016


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