Sunday, 15 May 2016

Truth and Consequences: Reflections on the Ghomeshi Scandal

This piece that originally appeared in Critics at Large is a followup to my review of The Hunting Ground. It examines the transgressive behaviour of a former broadcast celebrity, if not in a legal sense, certainly in a moral and ethical sense. Perhaps if the conversation on sexual assault and harassment are advanced and more people become informed along with a greater sensitivity to the victims is achieved, the trial and subsequent peace bond agreed upon may have some beneficial outcome. 

Jian Ghomeshi (right) exiting a Toronto courthouse with his lawyer Marie Henein. (Photo: Frank Gunn/AP)

As I was writing about Kirby Dick’s disturbing, albeit flawed documentary, The Hunting Ground, that profiles several women who were victims of sexual assault on American campuses and the apparent official indifference they confronted, it was hard not to think about the outcome of the Jian Ghomeshi trial and the firestorm that it created here in Canada. As most people know, that trial was a high profile case of a former marquee radio host for the CBC that publicly terminated him in the midst of several allegations of disreputable behaviour towards a number of women. The juxtaposition of the American film and the Canadian trial is unsettling because my responses are complicated. Initially, I experienced an almost visceral antipathy toward the male perpetrators. It was easy to feel a sense of outrage about what happened to these young women in The Hunting Ground and the suffering they endured, exacerbated by the blaming-the-victim rhetoric and hostile responses they encountered, even though I believe that the filmmakers could have done a better job at vetting at least one of the women. At the outset of the Ghomeshi trial, I was quite prepared to jump on the media bandwagon and consign the accused to Dante’s Second Circle of Hell for “carnal malefactors.” My feelings of antipathy toward Ghomeshi deepened after reading a powerful online account by Jessica Knoll, who recounts her own gang rape that inspired her novel, Luckiest Girl Alive, and the subsequent vicious treatment she received by her peers and at least one teacher who regarded her as a slut. That essay is of course totally unrelated to the Ghomeshi trial but it did contribute to my mindset that the justice system in general does not always serve women who are the victims of sexual assault.

However, as the Ghomeshi trial unfolded with the cross-examination of the three witnesses and the revelations of sandbagging the media, the police and Crown prosecutors, it became apparent that the Crown’s case was imploding. The inconsistencies between what they told the authorities and what was revealed in the court, their behaviour after the alleged attacks, that included the email collusion among the complainants who were determined to “cook his goose” and “make the predator pay for all the shit he has done” had impeached their credibility. A not guilty verdict was not unexpected and neither was the outraged reaction.

A sampling of the bile from social media is provided by CBC correspondent Neil MacDonald. In ad hominem attacks, they revile Judge William Horkins as “an aging, shameful, misogynistic, hate-filled, victim-blaming, ignorant, abusive, sickening, brutally vilifying, mansplaining, privileged white male.” Some of this venom is written by people who should have known better. MacDonald cites Andrew Burke, an associate professor in the Department of English at the University of Winnipeg, who impugns Judge Horkins for writing a judgement that was “a total masterclass in misogynist, arrogant windbaggery." Burke took great exception to Horkins’ alleged statement that "We must fight against the stereotype that all sexual assault complaints are truthful." The problem is that Horkins did not make that statement. Anyone who has read his judgement, that is readily available online, would not make such a false allegation. What Horkins did say was that "Courts must guard against applying false stereotypes concerning the expected conduct of complainants." But after hearing the witnesses' testimony he did remark: "However, the twists and turns of the complainants in this trial illustrate the need to be vigilant in avoiding the equally dangerous false assumption that sexual assault complainants are always truthful." Most importantly, he added that “the judgment of this Court depends entirely on an assessment of the credibility and the reliability of each complainant as a witness.” And in this case, since the witnesses had manipulated the court, their evidence was “tainted by outright deception.” They had therefore violated their oath “to tell the truth, the whole truth and nothing but the truth." In his view, the witnesses were simply not credible.

As a result of the lies and omissions, Horkins concluded that there was reasonable doubt, and, in Canada, United States and the UK, a guilty verdict can never be reached unless the prosecution proves the allegations beyond all reasonable doubt. As the judge rightly says: “Believ(ing) the accused is probably guilty or likely guilty, that is not sufficient.” This is not slippery legalese; presumption of innocence and the need of the Crown to prove its case beyond all reasonable doubt along with the right to remain silent are bedrock principles of the justice system. In a case that depends entirely on the credibility of the witnesses – there was no smoking gun, no corroborating witnesses or DNA evidence – he had no choice but to find the accused not guilty.

Protesters outside court in Toronto on March 24, 2016. (Photo: Frank Gunn/The Canadian Press)

Marie Henein, Ghomeshi’s lawyer, was also criticized both for her performance in court. To suggest that she is a traitor to her sex or she could not be a feminist because she defended Ghomeshi is absurd. The suggestion that defence lawyers should not skewer complainants in sexual assault cases is less extreme but troubling because the implication behind it is that assault victims never lie and should always be believed is not founded on experience. Some critics contend that the accused should be forced to testify in a sexual assault case, but that would turn the clock back to the sixteenth century to Star Chamber courts where witnesses were forced to testify. The right to remain silent is fundamental principle and every defence lawyer has to make the decision as to whether the client should be put on the stand. Henein wisely decided not to. For those who criticize her high fees might consult the illuminating profile of Henein by journalist Marci MacDonald. Clearly, some of her clients can afford the fees. As for the marginal who have exhausted the legal avenues, she and her team offer their services pro bono among others to aboriginal people and those struggling with mental health issues.

Henein was also criticized for her after trial reflections, notably expressed in her interview with CBC news anchor Peter Mansbridge. I think Henein made a number of valuable, insightful remarks: besides refuting the irrational tweets – she is on the wrong side of history, she has put women’s rights back seventy years – she rightly contends that justice guarantees a fair trial and not the outcome that one might expect, that “#WeBelieveSurvivors” is not a legal principle, nor should it be; an accused will never be the same regardless of the outcome; and that the system needs and will receive tweaking. But the conversation must be informed, measured and objective. Yet I also can understand the criticism expressed by Denise Balkissoon, especially Henein’s comment that the Canadian justice system is impartial “each and every single day,” given the experience of visual minorities, aboriginal peoples and the poor. I suspect that Henein might even agree with several of Balkissoon’s specific criticisms of the justice system.

The most valuable outcome from the Ghomeshi trial could be informed public conversation and the thoughtful suggestions about how to legally address sexual assault cases in the future. Women who do come forward need to be better informed by investigating police officers that their videotaped statements are handed over to defence lawyers, who mine and sift them for the purposes of cross examination. They need to be schooled in the art of cross-examination by either their own lawyers or the Crown. I am surprised that this does not happen more frequently since preparing a witness for cross examination occurs so frequently in movies and on television. When one of the complainants told the press that she expected only a “conversation,” I was struck by the naiveté of the remark. Complainants need to know that their emails, text messages, Facebook photos, Twitter posts, blogs, public comments and actions post-assault will be exhumed and can be used against them in cross examination. This knowledge may be the most important lesson that can be gleaned from the Ghomeshi trial. At the same time, perhaps judges also may need to be more sensitive to how women behave after an assault. The testimony of experts, who have worked with assault victims, could be helpful. One professor who teaches sexual assault law suggests that “women who have been assaulted by people they know act in ways that are often counterintuitive” and that there is “no script.” I think the key phrase is “people they know.” I cannot imagine the women assaulted in The Hunting Ground establishing any further contact with their predators since they did not know them prior to the assault.

A second sexual assault trial for Ghomeshi originally scheduled for June was instead resolved on 10 May. The case involved a single complaint of sex assault alleged by former Q producer Kathryn Borel after a workplace incident at the CBC in 2008. Ghomeshi signed a peace bond in exchange for the Crown dropping the last sexual assault charge against him. He agreed in essence to “keep the peace and be of good behaviour” for as long as a year. Ghomeshi did read in court an apology in which he acknowledged “sexually inappropriate behaviour,” that he had crossed a boundary and that he had been insensitive to the fact that his conduct was demeaning to Borel. Although he expresses “deep regret and embarrassment” for his behaviour, it is premature at this time to say whether the public has witnessed the beginning of his road to redemption or if his carefully worded mea culpa is a calculated publicity stunt to regain the support of his erstwhile legions of fans. He didn’t apologize for the crime of sexual assault nor did he mention details such as the simulation of sexual intercourse.

Kathryn Borel speaking following Jian Ghomeshi's apology in court on May 11.  (Photo: Bernard Weil/Toronto Star)

Perhaps this resolution, as unsatisfying as it will be for many people, since the peace bond is not an admission of legal guilt, is the best possible outcome. Borel in her statement to the press indicated that this agreement “seemed like the clearest path to the truth.” Also I think that the Crown likely has been reviewing its case, has found certain frailties and that there was little expectation of a guilty verdict. I also suspect Borel did not want to go through the gruelling process after witnessing what happened in the earlier trial. Had there been a trial I expect that she would have been better prepared for the pitfalls of cross examination and that there would not have been the verbal pyrotechnics of gotcha, Perry Mason moments, that Henein excelled in achieving in the Ghomeshi trial. But there was no assurance of a guilty verdict.

Borel’s statement was also a damning indictment of the CBC and its toxic workplace culture. Her contention “that in the three years they worked together,” Ghomeshi made it clear to her that “he could do what he wanted to me and my body,” a boast that could only have been uttered with the complicit approval of the corporation, notwithstanding his exploitation of the power imbalance. As a celebrity host, he could act with impunity. When she brought his behaviour to the attention of the tone-deaf management, she received “a directive that, yes, he could do this, and yes, it was my job to let him,” and that “his whims were more important than my humanity or my dignity.”

Even after Ghomeshi’s allegations were made public, the CBC behaved appallingly. It did not initiate an independent investigation but appointed employment lawyers who had worked for the corporation previously. Their remit was limited to probing incidents that involved Ghomeshi, not the larger CBC culture. Most notoriously, the staff members were informed that they could be disciplined for information they provided to the lawyers, prompting the union to discourage its members from cooperating with the investigation. As a result, an anodyne report was issued followed by general apologies and reassurances that changes are taking place. What took place before the scandal became public and its aftermath bears a strong similarity with the scathing criticism made in The Hunting Ground by the filmmakers who indict American universities for coddling sexual malfeasants.

When Judge Horkins acknowledged that his finding of reasonable doubt "is not the same as deciding in any positive way that these events never happened," he was likely saying that they did happen. Ghomeshi’s public apology to Borel reinforces Horkins’ statement. Regardless of the legal results, it is a safe assumption that Ghomeshi’s reputation is in tatters. I am reminded of another case dramatized in the 2015 Oscar-winning filmSpotlight about the investigative reporting by journalists for the Boston Globe that exposed the sexual predators of young boys by priests and their protection by senior Church authorities. Cardinal Bernard Law, the Archbishop of Boston, resigned in 2002 because of his role in protecting these priests. Law never appeared in a court of law but he was publicly pilloried and regarded as a pariah, forced to leave Boston to find a haven in the Vatican.Likewise, Henein was probably right about Ghomeshi that his life would never be the same. I would be very surprised if Ghomeshi ever works in the Canadian media again. The court of public opinion can be as unforgiving as a guilty verdict in a criminal trial, perhaps more so.

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