Giving victims a voice in the criminal justice system

Giving victims a voice in the criminal justice system Giving victims a voice in the criminal justice system Giving victims a voice in the criminal justice system Giving victims a voice in the criminal justice system

Who was protecting the rights of the victims in Ghomeshi’s sexual assault trial?

The judge at Jian Ghomeshi’s sexual assault trial says he will deliver his verdict on March 24. Justice William Horkins announced the date after the Crown and the defence wrapped up their closing arguments February 11th in Toronto.

Ghomeshi’s defence lawyer says the Crown has failed to prove beyond a reasonable doubt that the former broadcaster committed the crimes of sexual assault and choking. In their closing arguments, lawyers Marie Henein and Danielle Robitaille said that in the course of the trial, Ghomeshi’s three accusers were proved to be unreliable witnesses who withheld information from police and even lied to the court.

The lawyers used especially tough language when summarizing the testimony of one of the complainants – “Trailer Park Boys” actress Lucy DeCoutere – who’s accused Ghomeshi of choking and repeatedly slapping her while they were kissing in his bedroom.

Henein says DeCoutere’s testimony related to one of the charges – overcome resistance by choking – doesn’t meet the elements of the offence, since she testified that she was not resisting when Ghomeshi was allegedly choking her.

Crown prosecutor Michael Callaghan said earlier today that the credibility of Ghomeshi’s three accusers has nothing to do with the way they behaved after the alleged incidents, since the law is clear that everyone responds differently to sexual assault.

Henein agreed that the women’s behaviour and their continued involvement with Ghomeshi after the alleged sexual assaults were not relevant to the case. However, she said that the fact they lied to the court was.

“There is not an expert who will testify that perjury is indicative of trauma,” Henein said. “What a witness cannot do is lie about their conduct and then say “Oh geez, that’s just how victims of trauma behave.’”

Callaghan said in his closing arguments that each of the complainants reacted to the alleged sexual assaults in their own unique ways based on their individual personalities and life experiences.

He said the first complainant didn’t go to police immediately after the alleged assaults because she didn’t think her allegations were serious enough. Callaghan adds another complainant, DeCoutere, didn’t go to police immediately because she was unsure of the reporting process. The third woman only came forward in 2014, Callaghan says, because media reports of other allegations against Ghomeshi caused her to see a pattern. Callaghan asked the Justice William Horkins to consider all three women’s allegations, their credibility and reliability separately.

The 48-year-old former CBC Radio host, who has pleaded not guilty to the charges, didn’t testify during trial and has maintained his silence ever since being arrested in November 2014. Ghomeshi acknowledged in October 2014 that he engaged in rough sex acts, but said it was consensual.

The Ghomeshi case clearly highlights the difficulty of prosecuting sexual assault cases in Canada and the myths about how women behave following assaults that permeate society. While official statistics tell us there are 460,000 sexual assaults in Canada every year, we also know that a minuscule amount, only 3 out of every 1,000 cases, will result in a conviction (source: YWCA Canada). Most perpetrators of sexual violence are not charged, prosecuted or convicted.  The criminal justice system is failing.

Lucy DeCoutere’s lawyer, Gillian Hnatiw, stated, “This is and remains a trial about Mr. Ghomeshi’s conduct. What Lucy did or how she felt in the aftermath does not change that essential fact. It’s telling that the defence did not accuse her of dishonesty regarding the objective facts of the assault itself. She maintains her allegations and remains resolute in her decision to come forward. And, please be reminded, when the allegations against Mr. Ghomeshi first began to surface, he himself admitted that he does enjoy and engage in violence for sexual pleasure. Violence against women is not about the behaviour of the women; it is not about how they cope with an assault, or the details they commit to memory in the aftermath any more than it is about what they wore or how much they had to drink. Lucy wants survivors of violence to know that what they do in the aftermath in no way changes the truth. There is no right or wrong way to cope or react or move or move forward with your life.”

Federal Member of Parliament Charlie Angus issued a statement highlighting his frustration over the process that has vilified the women who came forward in this case. “I have known Jian Ghomeshi casually for 25 plus years. What did I learn from the trial? 1) That a woman who remembers being beaten is not considered credible because she didn’t know the make of his car. 2) That famous people can afford lawyers known as “Hannibal Lecter” for their ability to take sexual assault witnesses apart. 3) That Jian won’t bother to refute any of the charges because as some law expert says: “There are many reasons why an accused elects not to call evidence. One of them is that the complainants have been destroyed in cross-examination.” 4) That Jian flourished as a predator in what should have been the safest organization in the country and that the legal system continues to fail women and 5) that nobody close to Jian even pretends he is innocent, and somehow this isn’t an issue — the women are.”

Perhaps Justice Horkins will focus on the evidence presented about Ghomeshi’s deliberate acts of violence instead of allowing the focus or scrutiny to be wrongly placed on the victims. As Guila Benchimol stated in her Huffington Post column, “Making the perpetrator disappear is the point of focusing on victims in sexual assault cases. We focus on their responsibility, which makes that of the perpetrator harder to see, and we focus on their credibility, expressing doubts about their account….Ghomeshi seems to have vanished at trial.”

Our adversarial justice system is simply unable to deal adequately with sexual assault and reform is needed.  The victims, whose sexual integrity has been violated, should not be placed on trial. The CRCVC believes sexual assault victims should have independent counsel with legal standing in court to advise the complainant directly and represent their interests directly before the court. Without legal representation, we will continue to see the vilification of the victim in the aftermath of sexual violence and extremely low reporting rates which allows perpetrators to evade justice.

The Canadian Resource Centre for Victims of Crime offers support, research and education to survivors and stakeholders.

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