Content warning for sexual assault, victim blaming.
In a move that surprised absolutely no one, especially survivors of domestic and sexual assault, or people who pay any attention at all to the treatment of sexual assault survivors in the Canadian criminal justice system, Ghomeshi has been found not guilty on all charges — four counts of sexual assault and one count of choking.
The criminal court system is designed to fail victims of sexual assault. With only a 25 percent conviction rate of people accused of sexual assault, and the fact that 90 percent of sexual assaults go unreported to police, the system is broken. The burden of proof for victims is incredible, to the point that some wonder if they need to film every sexual encounter they have, just in case, so they might have a better chance at conviction.
When you’re relying on your memories of a traumatic experience to prove someone guilty, the likelihood of failure is almost impossibly high. When almost a third of rape victims experience post-traumatic stress disorder (PTSD), and the criteria of PTSD includes memory loss or distortion, your story will always be filled with holes and inconsistencies.
In order to fully understand the verdict at this emotional point, I’ve selected some quotes directly from the verdict (which you can read in full, here). I will warn that the sentencing is filled with victim blaming and rape culture myths.
Excerpts from the verdict
The truth is that victims do behave oddly. I personally tried to amicably contact my abuser multiple times, hoping for the same thing that L.R. hoped for. I hoped that if I could draw my abuser into a conversation, I could get them to tell me what they did and why they did it. I hoped to be able to stop gaslighting myself, or convincing myself that it didn’t happen, or that it wasn’t as bad as I thought, if I could just get the abuser to acknowledge and validate what happened. This is a normal response technique.
Lucy DeCoutere didn’t come out until trial about the fact that she had kissed Ghomeshi. With our culture of victim blaming, I can completely understand this. How would people perceive her when people were already accusing her of coming forward for the fame, if they’d known that she’d kissed him? People stay in abusive relationships for years or decades, and being abused doesn’t mean that there isn’t also tenderness and affection shown in the relationship. In fact, one of an abusive person’s grooming steps is to intersperse kindness with cruelty.
Jian Ghomeshi came out and stated he was being persecuted for his BDSM proclivities, and that everything he did was consensual, but there’s no proof of consent being given prior to these attacks. And even if it was consensual, under Canadian law, a person cannot consent to physical harm. While this is definitely problematic in its own way, the fact that this wasn’t discussed in the sentencing is an issue in and of itself.
Witnesses might want to suppress any information that might be interpreted negatively, precisely because of what happened at this trial. Victims have their stories picked apart and prodded at, when memories of traumatic events are often disjointed, with holes and inconsistencies and time gaps. Every positive action the victim took before, after, or during the attack is scrutinized as acceptance and approval, and evidence that the traumatic experience didn’t happen.
In fact, these three women all seemed to respond to stress by befriending their assailant as a way to survive.
I’ve spent a lot of time wondering if my harassment actually happened. If it was weird, or wrong, or out of place. I felt, at times, sometimes even the same time, flattered and scared, complimented and worried. I’d go from being happy and on top of the world to crying in a hidden corner, having anxiety attacks at the prospect of seeing him again.
No victim will be able to perfectly remember, over a decade later, how long the assailant’s hands were around their neck. Time shifts and distorts during traumatic experience, and it feels longer than it may actually be, especially due to the confusion of what is actually happening. Assault is an incredibly scary thing to experience, and when you’re in danger you might not be aware of what, precisely, that danger is or where exactly it’s coming from.
When two women are going up against a celebrity that has a great lawyer and a solid defense team, and their testimony is the only thing that might bring them justice, I believe that feeling as part of a team is not just natural, but essential. The fact that this was entered into the sentencing at all stands to demonstrate how much bias there is against survivors, and how isolating it is. When even the bond you share with other survivors and your anger towards the perpetrator is questioned, we know our system is broken.
Trial proceedings are not simple when you are a complainant or a defendant. It is confusing, and scary, and complicated, especially when the truth happened so long ago. I might remember the scent of someone’s perfume, but not what they were wearing. I might remember hands around my neck, but not remember the email I sent them the next day. I might remember that I cuddled with my assailant, but shame causes me to bury it down and pray I forget.
One of the biggest problems with trying sexual assault cases in the criminal court system has always been, and will always be, the lack of tangible evidence along with there being no reasonable doubt. The system is designed to fail sexual assault survivors in this regard. The entire burden of proof is on their consistent telling and retelling of their traumatic story. The entire burden of proof is on their behaviour, before, during, and after the event, and the way it lines up with our perceived notions of how victims act.
This isn’t one case of three women not being perfect witnesses or victims, but demonstrable proof that the system is broken. We know people are being sexually assaulted and that their assailants are not being tried or convicted. We know that there are rapists in our communities, at our jobs, at our schools. People we work with and see every day, people we love, people who are kind and gentle. People who are not our idea of the perfect villain, assaulting the idea of our perfect victim.
Changing the narrative
So how can we do better? How can we change things, maybe not for these three women, but for the countless other victims across Newfoundland and Labrador, and across all of Canada?
We need to change the narrative about who a rapist is, and how they behave. Rapists can be wonderfully charming, witty, fun and beautiful people in so many regards. They can be anyone (including someone of any gender). They can be people we care for, people who have helped us in the hardest of times, people who do good for the community.
But they can be very clever, using our own prejudices against us. They hear us say that if a person can’t remember how long they were choked for, that they’ll be found not credible. They hear us say that people who claim to be raped are liars, and they’ll know that their victim will be told they’re a liar too. They understand that if someone dresses or acts in a certain way, or partakes in certain sexual behaviours, that they’re asking to be assaulted or even want to be assaulted.
They can use those assumptions to control their victims. They can use those assumptions to keep their victims quiet, or create a clever trail of communication that they can hold onto for a decade just in case anyone gets brave enough to take them to court.
They use the court system’s presumption of innocence, and the fact that they cannot be forced to take the stand and incriminate themselves, to achieve a 2.5 percent conviction rate.
Another step we need to take is to further our understanding of trauma and how it relates to memories.
Memory loss is part of the diagnostic criteria of PTSD. Thirty-one percent of rape victims developed PTSD (woman-only study) in their lifetime, and 11 percent still have PTSD today. Thirty percent of rape victims have experienced a major depressive episode. Men who are sexually abused have a much higher rate of alcohol and substance abuse issues.
Memory holes and lapses are then exceedingly common in sexual assault survivors — however, they are all told that they are not credible witnesses, and going through the justice system would be an immensely painful waste of time.
The perfect victim is someone who is strong but damaged. Someone who remembers everything, took a detailed account of what happened immediately after. Someone who got a rape kit test done the next day and cut off all contact with their assailant and immediately pressed charges. They’re someone conventionally attractive but with high morals, someone who doesn’t drink, dress provocatively, or flirt.
Expecting victims to live up to [the perfect victim] standard is not just absurd, it’s incredibly harmful…
The perfect victim doesn’t exist, and instead is a coping mechanism that we use to tell ourselves that it won’t happen to us. That we’re safe.
But expecting victims to live up to this standard is not just absurd, it’s incredibly harmful, and leads us to question anyone who doesn’t line up with this narrative.
People who are further stigmatized or discriminated against, such as people who are promiscuous, are a minority, have an STI, are sex workers, are LGBTQ, are impoverished, have a criminal record, use drugs, or are mentally ill or physically disabled, face even more prejudice. This gets even worse with intersection of these issues.
In 2012 we heard how Robert Pickton could have been arrested much sooner, if only Ms. Anderson wasn’t told by Vancouver’s lead investigator that she wasn’t a credible witness on account of her being an addict. Despite the fact that she broke free from her handcuffs after a knife fight. Despite the fact that the RCMP collected Pickton’s blood-spattered clothing, a used condom, handcuffs and bandages. They didn’t even bother testing for DNA, which would have lead to connecting him with at least one more missing woman. Over a dozen of Pickton’s victims would have been alive today if not for the biases against people who aren’t the “perfect victim”.
Improving the justice system
But it’s not just our beliefs that need to change. The justice system does too.
In 2013 criminal lawyer David Butt wrote in The Globe and Mail that, in his experience, “often what matters most to victims is not the label of a ‘criminal conviction’ for perpetrators – and not a jail sentence.
“Victims are overwhelmingly insightful and realistic. They seek above all validation for their suffering. And beyond that they want modest redress, and some effort to show the perpetrator how hurtful their behaviour has been,” he said. “These ends, that best serve victims’ real needs, can often be achieved with a civil lawsuit, not a criminal prosecution.”
Mr. Butt goes on to recommend allowing a victim to choose between a civil suit and criminal suit, without the hefty fees of a private civil case. This would be a great step forward to ensure the integrity of our justice system while understanding that survivors or victims of rape deserve justice.
Would the 51 percent likelihood of assault — the balance of probabilities required in a civil lawsuit — be met in the Ghomeshi case? It’s impossible to say. But future victims need this as an option.
In these days after the verdict, one of the most important things to do is to listen to what the survivors around you are saying, and to be considerate of your own words. When you’re talking about this at the water cooler as if it were just another piece of news, consider that at least one in 17 (the lowest statistic I could find; others suggest as many as one in three) women are sexually assaulted in her life. Consider that nearly 20 percent of rape victims are men. Consider that 70 percent of rapes are perpetrated by someone the victim knows, and over 50 percent happen on a date.
You might just be talking about the news, but the person you’re talking to could be a victim, or a perpetrator. Consider how your message might be perceived by them.
There’s no simple solution, but it’s clearly time for change.
If you, or someone you know, is feeling triggered by the ruling, the NL Sexual Assault Crisis & Prevention Centre has trained and compassionate volunteers ready to talk to you: 1-800-726-2743. The Coalition Against Violence also has a list of local resources.