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Friday, March 25, 2016

The tragedy of the Jian Ghomeshi case but it's not about the judge

The acquittal of Jian Ghomeshi on four counts of sexual assault has rightly caused an uproar in Canada. But the focus of the debate is not about what the judge did unless you want to congratulate him for doing precisely what we ask judges to of. He assessed the evidence and the credibility of it against the appropriate standard of whether or not there was a reasonable doubt. He concluded there was.



The real lessons come from what evidence was put in front of the judge which led to the decision. One might also criticize the theatrics of the defence counsel. One might go further and ask whether or not the case was presented in the light of what we really know about the victims of sexual assault.

In Canada, only about 6 per 100 cases of sexual assault are reported to the police. It's a pathetic statistic but there are many reasons why it exists:


  • There is fear of how the victim will be judged - certainly we saw good reason for that fear based on how the victims were dealt with by Ghoneshi's lawyer. That lawyer will no doubt state that she was doing what she was supposed to do - vigorously defend her client. Yet, should a victim leave a cross examination more damaged when she came into the court? The Macleans magazine interview with one victim, Lucy DeCoutere illustrates the high price she paid.
  • Witnesses are often not believed. My own experience with victims is that telling the story is a huge risk as the victim is not often seen that way. They are probed for evidence that they led the perpetrator on, failed to make clear they were not offering consent or had allowed themselves to become too impaired to properly protect themselves. It's called victim blaming and it's real.
  • There is much shame arising from being a victim. This arises from some of the same victim blaming forces. There are also some communities and cultures who will also see the victim as forever "damaged goods". 
There are many other reasons but these are some of the most powerful. But there is one even greater reason - women are vulnerable to the societal structures that allow men to dominate, control and demand. We are still socializing boys to believe that somehow they "deserve" what they want which includes sex. 

The judge was missing some clear evidence that helped the court fully understand the behaviours of victims. What the women described on the stand (at least as reported by the media) is quite typical of victims of sexual assault. This includes believing that they were somehow at fault. This leads to further contact with the perpetrator. Victims are also often caught up in the enmeshed dysfunctional relationship were they feel they are responsible for making it better. Courts need expert evidence on these types of behaviours. The effects of sexual trauma also distort memory, impact decision making and influence the cohesiveness of the story. Traumatic memory can compartmentalize the story such that when it is told, it is told incompletely. The court also needs expert evidence to explain the neurobiology of traumatic memory and behaviours that arise from that. 

Children who have been sexually abused are just as likely as an adult not disclose, particularly given that the perpetrator is most often someone they know and trust. As Esposito (2015) notes:


Sadly, disclosure of childhood sexual abuse is often met with disbelief, anger, or rejection. This leaves a child feeling isolated, unnoticed and unsure. Children say they don’t disclose because they are afraid of the consequences to themselves and others, they feel ashamed or in some way responsible for the abuse, they are unsure whether an abuse has occurred, or they do not know where to turn to for help. Children therefore make calculated decisions about disclosing; they consider who they will tell, whether they will be believed and how much detail they should provide. (p.1)

We have an urgent conversation in Canada which is how to encourage disclosure and make it safe to do so. We must also speak about how these cases are managed in the courts. The Ghomeshi trial will have a chilling effect on the willingness and ability of victims to disclose. The real lesson from the trial: "You will not be believed; You will be attacked and vilified; Your perpetrator will get away with with it, so why try".

As a nation, we need to change these messages but we also need to change the message that sexual assault is ever permissible. The cultural position of boys and men needs to change (and yes, males are  by far the most common perpetrators). They need to truly understand that consent is a necessity.

Our non-judicial institutions also need to protect victims far better than they have been. There has been an avalanche of media coverage about sexual assault on post secondary campuses. These stories have, unfortunately, also highlighted how victims in post secondary are not protected. This is an example of how institutions can play a role in prevention but also in supporting victims.

The story of sexual assault needs changing. Ghomeshi's case took us further away from protection and prevention. The message is loud and clear - even if you are found out and charged, your chances of being convicted are poor. The odds are stacked in favour of perpetrators in this country. How truly sad!

Reference: Esposito, c. (2015). Child sexual abuse and disclosure: What does the research tell us? New South Wales: Office of the Senior Practitioner, Family and Community Services. Available at this link



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