In a deeply disappointing verdict issued today, Justice William Horkins found former CBC Radio host Jian Ghomeshi not guilty on four counts of sexual assault and one count of overcoming resistance to sexual assault by choking. Horkins’ verdict, especially in the absence of testimony from Ghomeshi, hinged on the credibility and behavior of the three complainants, and highlights the unfair burden placed on accusers to behave in a way that others perceive as “consistent” with how a victim “should” behave.
While it’s of course Horkins’s job to analyze the evidence presented before the court, he takes pains to outline what he sees as flawed behavior from each of them regarding how they remembered the incidents and, even more troubling, how they behaved toward Ghomeshi aftewards. “Each complainant in this case engaged in conduct regarding Mr. Ghomeshi, after the fact, which seems out of harmony with the assaultive behaviour ascribed to him,” wrote Horkins. “In many instances, their conduct and comments were even inconsistent with the level of animus exhibited by each of them, both at the time and then years later. In a case that is entirely dependent on the reliability of their evidence standing alone, these are factors that cause me considerable difficulty when asked to accept their evidence at full value.”
As Jen Zoratti wrote in the Winnipeg Free Press, “Deeply entrenched ideas about how victims should be — i.e. they remember all their emails and definitely do not send after-the-fact bikini photos to their alleged abusers — do at least some of the work when it comes to poking holes in a complainant’s credibility, the benchmark for which is already set high for sexual assault victims. To be a credible victim is to be a perfect victim. A victim who went to the police right away, not the media. A victim who broke off all contact.”
It’s worth noting that each of these women came forward as a result of the publicity surrounding Ghomeshi’s firing from the CBC in 2014, yet the fact that they waited over a decade has been used against them, similar to how Bill Cosby’s accusers have been lambasted for waiting “too long” too come forward. Horkins notes of the first complainant, “L.R. came forward publically with her complaint in response to the publicity and specifically, in response to then Chief Blair of the Toronto Police Service publically encouraging those with complaints about Jian Ghomeshi to come forward.”
He paints an image of women motivated not by justice, but revenge, and basically accuses DeCoutere of courting attention when he writes, “Ms. DeCoutere engaged the services of a publicist for her involvement in this case. She gave 19 media interviews and received massive attention for her role in this case. Hashtag ‘ibelievelucy’ became very popular on Twitter and she was very excited when the actor Mia Farrow tweeted support and joined what Ms. DeCoutere referred to as the ‘team’.”
Also damning? That she wasn’t sunshine and roses when she thought about Ghomeshi before the trial. “In her email correspondence with one of the other complainants, exchanged after the charges were laid, Ms. DeCoutere expressed strong animosity towards Mr. Ghomeshi.”
Since when is expressing “strong animosity” toward someone you’re going on public record accusing of sexual assault and choking somehow out of character? Horkins seems to be grasping at any efforts to paint DeCoutere as an opportunist, seeming to suggest that by using the press to share her story she’s somehow already damned her legal case.
He similarly suggests that DeCoutere and the complainant identified as S.D. colluded in a way that would make their testimony less credible. “The extreme dedication to bringing down Mr. Ghomeshi is evidenced vividly in the email correspondence between S.D. and Ms. DeCoutere. Between October 29, 2014 and September 2015, S.D. and Ms. DeCoutere exchanged approximately 5,000 messages. While this anger and this animus may simply reflect the legitimate feelings of victims of abuse, it also raises the need for the Court to proceed with caution. Ms. DeCoutere and S.D. considered themselves to be a ‘team’ and the goal was to bring down Mr. Ghomeshi.”
Again, the notion that some feelings are “legitimate” while others are not only bolsters the idea that there’s a right way and a wrong way to think about one’s alleged assailant. Especially when we consider the similar patterns in Ghomeshi’s alleged assaults, both those in this case and those reported by other accusers, have taken, it shouldn't seem unusual if two women who say they'd gone through analogous traumatic experiences want bond over it.
Victims were specifically encouraged to come forward by police, but once women did, they were faced with the precisely the kind of scrutiny, judgment and assumptions that keep so many women from sharing their own stories of assault, let alone reporting them. Indeed, Horkins goes out of his way to blame these women for not always precisely remembering the sequence of events they’re describing, something quite common among sexual assault survivors, and for making decisions around what they considered pertinent to the trial. Of DeCoutere, Horkins wrote, “It is difficult for me to believe that someone who was choked as part of a sexual assault, would consider kissing sessions with the assailant both before and after the assault not worth mentioning when reporting the matter to the police. I can understand being reluctant to mention it, but I do not understand her thinking that it was not relevant.”
Horkins quoted an email DeCoutere sent Ghomeshi within a day of when he allegedly choked her which said, “Getting to know you is literally changing my mind, in a good way. You challenge me and point to stuff that has not been pulled out in a very long time. I can tell you about that some-time and everything about our friendship so far will make sense. You kicked my ass last night and that makes me want to fuck your brains out, tonight.” Horkins commented in his verdict that, “There is not a trace of animosity, regret or offence taken, in that message.”
That DeCoutere may not have had time to fully process what had happened, that she may have wanted to forget about it, that she may have not wanted to confront Ghomeshi directly about his actions in the immediate aftermath, are not given an ounce of consideration. Regarding the email and a letter DeCoutere sent Ghomeshi four days later, Horkins describes her missives as “seemingly odd reactive behavior.” He similarly dismisses her explanation for spending the weekend with him after the assault as a way to “normalize” the situation, and that she sent him a photograph of the two of them doing karaoke together as a way to see him “less of an assaulter and more of a friend.”
The problem is not that DeCoutere’s correspondence was presented as evidence, rather that the words on their face don’t tell us the frame of mind DeCoutere was in when she wrote them, nor do they in any way negate the possibility that Ghomeshi did in fact choke her. What she did explicitly tell the court about trying to see him in the best light possible is treated as inconsequential.
As Nina Burrowes, a psychologist who works with victims of sexual abuse, told The Globe and Mail, “When you live your life assuming this will never happen to you or if it does happen, you’ll scream, fight and run away, it can be incredibly confusing when you experience the reality of abuse and find yourself reacting in a very different way.”
DeCoutere told Chatelaine after her testimony but before the verdict, “Post-incident conduct — that term has come to haunt me. When I was concerned about emails with Jian, they were emails from before [the assault]. I wasn’t even thinking about after because I didn’t think it mattered — because it shouldn’t matter. Now I understand that it matters because it measures your memory. I didn’t know my memory was on trial.”
By relying on outdated stereotypes about how victims “should” behave, Horkins showcases the way the burden of proof required is slanted against alleged victims, whose credibility is, according to him, dependent on their having a perfect memory and behaving in ways he would deem “correct.” But this only further cements the notion that there are “correct” and “incorrect” ways to behave after an assault, that women should be able to immediately process those decisions and move immediately from thinking of a man such as Ghomeshi as a potential date or love interest into a potential criminal. That sort of mental whiplash is an impossible task, one that, if taken to its logical extension, only holds out the possibility of justice for an extremely small percentage of victims.
As Horkins notes, “one of the challenges for the prosecution in this case is that the allegations against Mr. Ghomeshi are supported by nothing in addition to the complainant’s word. There is no other evidence to look to determine the truth. There is no tangible evidence. There is no DNA. There is no ‘smoking gun’. There is only the sworn evidence of each complainant, standing on its own, to be measured against a very exacting standard of proof.” Given that this is the reality for sexual assault cases, it’s all the more imperative that judges understand the weight of the testimony given, the reasons memories may be imperfect, and the reasons why victims of sex crimes may behave in ways that seem, to an outsider, confusing, but make sense within the context of abuse and “politeness conditioning.” To essentially conclude that none of these women were truthful based on the reasons Horkins provided means it’s the rare woman who will ever be believed when accusing a non-stranger, especially one she’s previously shown interest in, of sexual assault.
If this is how those who come forward in such cases are treated, it’s not surprising that according to a 2004 study, 91 percent of sexual assaults in Canada go unreported to the police. Even in a situation where law enforcement specifically asked victims of Ghomeshi to seek justice, his accusers were treated as if they should have behaved not as human beings, but as the supposed “perfect victim” whose case would have been unassailable. The problem is, she doesn't exist.
Look at Barbara Bowman, one of the 35 women who’ve accused Bill Cosby of rape. In an essay about why she didn’t come forward sooner, Bowman wrote, “Back then, the incident was so horrifying that I had trouble admitting it to myself, let alone to others. But I first told my agent, who did nothing. (Cosby sometimes came to her office to interview people for ‘The Cosby Show’ and other acting jobs.) A girlfriend took me to a lawyer, but he accused me of making the story up. Their dismissive responses crushed any hope I had of getting help; I was convinced no one would listen to me. That feeling of futility is what ultimately kept me from going to the police.”
One would hope that this verdict showcases the damning dilemma victims are all too aware of facing: that if they do seek justice from the courts, they are opening themselves up to essentially being put on trial themselves and having their behavior before, during and after their assaults used to judge their credibility. As Amanda Dale of the Barbra Schlifer Commemorative Clinic told The Guardian regarding the case, “I think the scrutiny is actually a good thing because it blows the lid off the myth that the criminal system has been working.”
Compounding the way these three women were treated in this verdict are those who’ve now taken the trial’s outcome as proof that Ghomeshi is “innocent,” a misguided, dangerous way of thinking that encourages men in power like Ghomeshi and Cosby to use their fame to commit crimes because they know the chances of being found guilty are slim.
We should heed the words of DeCoutere’s lawyer Gillian Hnatiw, who told reporters during the trial: “Violence against women is not about the behavior of the woman. It is not about how they cope with an assault or the details they commit to memory in the aftermath. It’s not about whether they see their abusers again or send flowers, any more than it is about what they wore or how much they had to drink.”