Next month Justice Horkins will deliver his decision as to whether Jian Ghomeshi has been proven guilty beyond a reasonable doubt of four counts of sexual assault as well as one count of overcoming resistance by choking. This trial dealt with allegations made by three complainants, and another trial is scheduled later this year to address allegations made by other women. Media discourse on the trial demonstrated that when an accused person is tried for sexual assault, society places the sexual assault victims on trial as well.
The witnesses in the Ghomeshi trial have been disbelieved for not fitting into the box which society has defined for victims. The women did not describe the event as one which involved tears and attempts to fight off their alleged attacker. They did not flee from the scene of the crime and run straight to police. They did not faint at the thought of having to encounter their attacker again; in fact, all complainants reached out to Ghomeshi after the alleged sexual assaults. Upon hearing this inconceivable post-incident conduct, many concluded that Ghomeshi was falsely accused, because it makes no sense for a victim to behave in any other way than a damsel in distress.
A common thread between the three complainants who testified is that they each tried to normalize the assault immediately after it had happened. Witness 1 wondered if the first time he pulled her hair was intentional, as she had just finished an enjoyable date with Ghomeshi who had been charming and charismatic. The second woman, Lucy DeCoutere, “didn’t want to be rude” after Ghomeshi pulled her hair and slapped her, so she continued the evening activities with him, and saw him on several more occasions. She did not report what had occurred because “I always thought assault meant you were beaten to pieces. I didn’t think this qualified.” Finally, witness 3 continued the trend of blaming herself for seeing Ghomeshi after the alleged assault against her. She stated that the incident was out of character for him, and that she typically gives people second, third, and fourth chances. Like DeCoutere, witness 3 did not know that the incident would count as sexual assault or that there was any criminal act against which to press charges.
Marie Henein, defence counsel for Ghomeshi, used witness 1’s post-attack correspondence with Ghomeshi to destroy her credibility. This is an understandable legal tactic because witness 1 falsely stated in her evidence that she did not communicate with Ghomeshi after the assault. However, DeCoutere made no such statement, so why were her emails and letters to Ghomeshi displayed and read to the Court? The correspondence revealed that DeCoutere sought Ghomeshi out after the alleged offence and that she tried to initiate sexual contact the following day. Despite DeCoutere’s explanation of trying to normalize what had occurred, and that at the time she felt that “I put myself in this place”, Henein’s cross-examination had the effect of turning many into disbelievers of DeCoutere’s evidence. If this post-offence conduct were not enough to cast doubt on DeCoutere, Henein continued by highlighting DeCoutere’s humorous tweets and interviews on the subject of her alleged assault. Henein suggested that the assault never occurred, which is odd, given that she did not draw out any evidence to contradict DeCoutere’s version of the events in question.
DeCoutere explained in court that just like an intimate relationship where a person still loves the person who physically abuses them, or stays in an abusive relationship, sexual assault victims may respond in a variety of ways. Continued contact, referencing the event in a joking way, or expressing excitement about testifying are examples of possible responses, and DeCoutere has been chastised for all of the above.
Witness 3 had her credibility questioned because she did not inform police that she went out with Ghomeshi subsequently, which involved further sexual contact. She explained that she did not think it was relevant and that it was also embarrassing. Why witness 3 left out the “embarrassing” fact that she later performed manual stimulation on Ghomeshi reflects what women are taught about sexual activity in our current society: sexual promiscuity is not ladylike behaviour. Perhaps it was the witness’s concern about being perceived as promiscuous that caused her nondisclosure to police, or perhaps it can be attributed to rape culture, wherein a victim is expected to flee an attacker and to know better than spending further time with the man who traumatized her.
Whether Jian Ghomeshi is legally innocent (committed the acts but cannot be proven beyond a reasonable doubt), factually innocent (did not commit the acts alleged), or found guilty of committing the assaults, it can be safely said that our society is guilty of perpetuating rape culture. This trial has demonstrated that the average citizen commenting on the witnesses’ behaviours has neglected to become informed on an issue which plagues our society and disproportionately victimizes women – sexual assault.
Here is a crash course on the elements of sexual assault: non-consensual + application of force (touching another person in a non-trivial, non-trifling way) or threat of force + violation of one’s sexual integrity = sexual assault.
Further requirements such as reporting immediately and giving the attacker the cold shoulder are not realistic for several reasons. One extremely troubling theme in the three victims’ testimony is that they felt ashamed of how they had acted after the assault, and that they did not know that the incident constituted sexual assault. In a country which does not include consent in educating youth on sexual assault, it is unreasonable to place requirements on victims to respond instantly and logically. When society shames female sexual promiscuity and ignores the prevalence of sexual assault, it is inappropriate to place the burden on victims to recognize the full spectrum of assaultive behaviour and to report embarrassing incidents candidly and objectively.
The lesson to be taken from the Ghomeshi trial is that 100 years after women’s enfranchisement, we must continue to fight for equality. We must fight to remove gendered stereotypes of appropriate sexual behaviour, and a pivotal step in this direction is education. Ontario is the first province to introduce consent into their new sex-education curriculum for adolescents, which was implemented this year. All 61 school boards of Alberta approve of introducing consent into the curriculum, and hope that the Alberta government will implement mandatory instruction. Until education is delivered to youth, boys and girls will continue to receive inaccurate information from media and their peers, which further perpetuates harmful gendered stereotypes about sexual activity and sexual assault. As a result, victims will likely wonder what they did wrong to encourage the assault, and will refrain from sharing their experience for fear of how they will be perceived. Eliminating rape culture is the battle of this generation, similar to the fight for suffrage 100 years ago. Education is a promising step to this end.