Survivors and Due Process


I’ve been looking for an article somewhere that articulates how I feel about the Ghomeshi verdict. I’ve posted many articles commenting on the judge’s ruling, and on the limits and purpose of our legal system. I’ve had lengthy discussions, and engaged in many a debate about various characterizations of what exactly went down. And yet, in all of the blog posts and facebook discussions and news articles, I have still not found what it is I am looking for. So I guess I will just have to create it myself.

There are many competing voices on the Ghomeshi case; on what happened and how we characterize what happened, and about who and what is at fault and who and what is not. Most of my time thus far has been spent defending what I see as a mischaracterization both of the judge’s ruling and of how the legal system worked. Some people believe this has been my focus because I do not care about victims of sexual assault. That I think our system is perfect, and worked perfectly, and nothing needs to change. People are very good at imputing intention when anger and hurt are involved. But the reality – my reality – is very different.

I decided to go into law later than many people do. It wasn’t something I had dreamed of, or even really considered as a possibility. I did so because of personal experience and frustration with the current legal system, and a desire to change the parts of it that seem to be failing people. But I also did it with a deep respect for the system itself, and a desire to fully understand exactly what the system is and what its main objectives are before trying to claim I knew all of its problems and could solve them. I recognized that in order to validly critique something and make it better, I needed to ensure I truly knew what it was I was attempting to change. I need to ensure I truly know what it is I am attempting to change.

And so, in the aftermath of the verdict of not guilty, I have seen two main stances. On the one hand, I have seen people jumping to the defense of the legal system – laying out why the judge was right in his legal analysis, why the system worked and why people need to stop claiming these things didn’t happen and that the judge is a dirty misogynist who is perpetuating stereotypes and that the system didn’t work the way it was supposed to. At least in my posts, this has been largely my focus. And I do believe these things are true.

On the other hand, I have witnessed countless numbers speaking out with rage and hurt at the injustice of it all. Visceral reactions from survivors and allies, angry at a system in which so few assaults are even reported, and where of the few that are, only a handful result in convictions. They are angry at the ways in which being forced to publicly testify puts complainants at the centre of a deeply vulnerable and painful process, and at how in far too many ways it seems it is the women and not their evidence whose credibility is challenged through rigorous cross-examination. And I do believe these things are true as well.

You see, while perhaps I have not done a very good job of portraying this outside of the more nuanced discussions I’ve been involved in, I don’t think we need to choose sides. I think it is not only possible, but is in fact extremely important, that in our reactions to Ghomeshi we support both of these viewpoints. And I also think it is necessary that we correct the misinformation being spread by both sides in this social commentary.

The justice system worked the way it was built to work, and the judge overall exercised sound legal judgment in applying the law. The justice system, however, was not built to deal with sexual assault, and the criminal standard of proof – while necessary and important in protecting people from wrongful conviction – is not well suited to supporting victims through the process of conviction or in holding people accountable where the only evidence available is conflicting testimony.

The judge was not immune from being bothered by stereotypes that continue to be perpetuated – and while he made clear they were not the reason for his verdict, we cannot ignore their prevalence and the harm they continue to do. Nor can we ignore the ways in which this verdict will be used by people to continue to perpetuate myths about sexual assault and the women who come forward. The women in this case absolutely hold responsibility for how they contributed to the downfall of this case. But that should in no way impute on them the idea that they made it all up, or that most women make it all up. And yet it will be used that way, and that is hugely damaging, hurtful and problematic.

The process of cross examination is difficult in any case. For survivors of sexual assault, the process can be (and often is) even more traumatizing than the assault itself. Being forced to publicly relive the assault in front of your abuser in open court, and then having every possible piece of evidence that may show your testimony is not credible picked apart for the world to see is nothing if not traumatic. Add to it the fact that far too often it is the complainant and not their testimony that seems to be at issue, and that much of the time the complainant has not received appropriate counseling or support, and you have a recipe for disaster. Survivors who are already carrying around unbearable shame burrow even deeper into it, and often end up questioning if they really are the cause of the abuse, and if they really even deserve to be in a courtroom telling their story. This is wrong and sad and hard – not because the system is broken but because the system was never built for them in the first place. And that is a truth we all need to understand.

The burden of proof is high for a reason. A conviction doesn’t only mean jail time or probation. It also means a life time of public stigma. It means a loss of career, livelihood, family, friends. It is an enormous punishment, and therefore it is necessary to make sure only the guilty are convicted. Cries that the burden of proof should be lowered here, that a personal intuition or public consensus should be enough to overturn evidentiary rules, throw out due process and convict are uninformed and dangerous. In the common law system, verdicts set precedent, and precedent is powerful. Rules require a lot of thought and careful discussion before changing because the ramifications are always far bigger than whatever reality we may be presently considering. We talk about justice as if it is entirely confined to the case in front of us, or to one particular kind of crime. But justice also must be served through the system as a whole. And the thing about the system is that every part of it is intricately connected to every other part. The ripples of change get very big, very quickly.

Every person who comes forward with a sexual assault complaint has been hurt. How they have been hurt and who has hurt them are not always determinable. Sometimes the answer is complex and cannot be easily broken down. But that they have been hurt, that they feel hurt, is a truth we need to acknowledge. A presumption that a complainant is lying is not necessary in maintaining the presumption of innocence. And a requirement that we believe the complainant and therefore that we also impute guilt on the accused is also not necessary. A complainant may very well be telling their truth, but their truth is not the only truth or only experience, and neither person’s story needs to be thrown out at the expense of the other. The courts are there to figure out what can be proven as true, not what is or is not true.

None of these realities are inconsistent. All of these realities contribute to a deeper and fuller understanding of what the issues really are, and only when we can acknowledge the full picture can we be informed in a way that will help us produce effective solutions.

Solutions like building a new system that is built specifically for these kinds of crimes.

Solutions like examining the assumptions and inferences we make in sexual assault trials and about sexual assault survivors, and changing the law in ways that keep these assumptions and inferences out of our courtrooms.

Solutions like finding different systems that already exist and may be better suited to dealing with sexual assault and sexual assault victims.

Solutions like putting better supports in place for complainants, supports that will guide them not only through the legal process, but through the emotional process as well.

Solutions like focusing not just on our legal systems, but on the broader social systems that continue to perpetuate and constantly reinforce a culture where abusers feel they can get away with assault, and survivors feel shame and responsibility for having been assaulted.

Solutions that focus less on punishing crimes that may never be proven, and more on validating the hurt suffered by those involved and on helping survivors and even abusers move through their hurt and into hope.

That is the truth we should all be talking about. That is the truth we should all be listening for. That is the hurt we should all be working together to heal.





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