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

Sexual assault - two worrisome public events

The Canadian media has been buzzing with the trial of Jian Ghomeshi. He is a former broadcaster with the Canadian Broadcasting Corporation (CBC). There were women who came forward to tell of their allegations that sexual activity with Ghomeshi was not consensual. He was fired from the CBC and charged with several offences.

The trial has been high profile. It is perhaps the way that the women have been treated in the court that is the most sensational story. Their behaviour has been dissected in salacious detail. The women have been on trial as opposed to Ghomeshi who did not testify in his defence. The challenge is that victims of sexual assault suffer from memory distortions, enmeshed relationships, shame and guilt and a tremendous amount of fear about how they will be treated by friends, family and the community. The intense cross examination they received in court will have only added to these fragile emotional states. Stories from victims are typically disjointed and often have inconsistencies in them.

Jian Ghomeshi

We await the decision of the court in March.

However, the real lesson here is for other victims. There is little value in coming forward with your story. You will be treated badly. Your story will be challenged in a way that will go to the heart and will be discredited.

A good look at the memory issue can be found in this CBC story. What is important as a take away, is that traumatic memories are not formed and recalled in cohesive, through ways but more as the essential essence of what took place. By comparison, cross examination in courts will focus on minute details, inconsistencies, contradictions and things forgotten. In other words, cross examination will use the very weaknesses of traumatic memory as the basis to discredit the witness.

The second story comes out of the Vatican. As Time magazine reports (as do many other news outlets)

The Catholic Church is allegedly telling newly ordained bishops that they have no obligation to report child-sexual-abuse allegations to law-enforcement officials, saying instead that the decision to take such claims to the authorities should be left to victims and their families.

Given that the Roman Catholic church has been plagued with sexual abuse scandals for decades now, this announcement is somewhat incredulous. The Church is shifting responsibility off to the victims. Many victims will find that obligation onerous. It takes tremendous courage to come forth with sexual abuse allegations but now the victims are being told they must carry the burden further and make a separate decision to bring in the police. That is a lot to ask of victims. Again the Church is failing its victims.

However, there is a story here that is getting missed which is the obligation in many parts of the world to involve the authorities via child protection. A common theme through much child protection legislation in the developed world is that of mandatory obligation to report when a child may be at risk of harm. Most often that is thought of as a caregiver but priests, nuns and brothers often act in roles of parents in schools, orphanages, athletics and so on.

We see in Canada how the Church engaged in sexual and physical abuse of First Nations children in the Residential Schools for decades. Those children and their families lacked the capacity to get action. This should be remembered. The obligation to act should rest with the institution on whose behalf the cleric acts.

Both of these cases highlight how society continues to fail in their obligation to protect people from sexual abuse and assault. The clear messages are that victims will have to struggle to be heard, believed and protected from further abuse.

The graphic above shows very clearly that we have not created an environment where sexual assault can be spoken about. These two stories add to the power of silence. Even if Ghomeshi is found guilty, the trial has sent a clear message to victims, telling the truth is very hard to do and the way in which the case will be managed may do you a lot of harm.

UPDATE

The Associated Press reports that, since the course noted above for Catholic clerics:

Pope Francis' top adviser on clerical sex abuse says bishops have a "moral and ethical responsibility" to report all cases of suspected rape, molestation and other abuse to police — even where local laws don't require it.

A statement released by Boston Cardinal Sean O'Malley goes beyond the Vatican's current guidelines for bishops. Those 2010 guidelines say bishops and superiors must report suspected cases where civil reporting laws require it.

O'Malley, who heads the pope's abuse advisory commission, issued the statement after a recent course for new Catholic bishops on handling abuse cases featured a French monsignor who reportedly said bishops don't have to report cases. He said it is up to families and victims to do so.

Sexual Abuse and Consent: UK Judge gets it wrong

The BBC has reported:

Stuart Kerner, 44, from Kent, received an 18-month suspended sentence for two counts of sexual activity with a child by a person in a position of trust.

While the sentence seems quite low for the offence, what is most concerning is the context of the sentence. This is a case where a teacher was in a position of trust in a school. He entered into a relationship with a 16 year old student at the time that his wife miscarried with their second child. More can be found on the story on the BBC.

Stuart Kerner

The most disconcerting part of the story is, however, a view that the judge felt the child had become obsessed with Kerner and thus, groomed Kerner. In other words, the court is putting responsibility for the sexual abuse on the victim. Such a view states that the obligations of a person in authority can be modified based upon the child's behaviours. Let's expand the thought - if a child is highly oppositional, rude and perhaps even violent, then violence by a teacher in return might be permissible. But that is not allowed because we expect the adult to be able to manage their emotions, stay in control and respond in a measured and safe manner.

In this case, the failure of the adult, Kerner, to control himself is being excused because of his personal circumstances and the obsessive behaviours of the child. This is a very dangerous line of reasoning that, if applied in a variety of other criminal matters, diminishes the responsibility of the perpetrator and increases the responsibility of the victim.

This decision also missed the mark when the child is considered. This was her first sexual experience. She was 15 when the relationship appears to get underway. Her notion of relationship, sex, boundaries and even love will be highly underdeveloped. Her executive functioning is that of a 15 - 16 year old which means that she is more likely to be influenced by emotion and impulsivity than rational, long term thinking. Kerner, on the other hand, at 44 years of age, should be expected to have the maturity to work his way though both his emotions and the responsibilities of his position.

The judge has also failed to understand that Kerner was part of a system responsible for protecting children. Schools are meant to be safe places. Teachers are meant to be guardians of that safety. Kerner did not offer that. He compromised it for this student but also for all students by making a behavioural statement about what is acceptable.

I have no doubt that Kerner has paid quite a price for his behaviour. He is not able to work with children meaning that his career is in shambles. He has been subject to a great deal of public media. But these are all the result of choices that he made as an adult. There are the unspoken victims as well - his family, children as well the school, colleagues and the other children who had been aware of the relationship which would have created confusion for them.

This case matters because the courts have made a statement about responsibility that needs to be challenged.