“Violence against women is not about the behaviour of the women.” – Gillian Hnatiw, Lucy DeCoutere’s Lawyer
Last year, a growing list of allegations against Jian Ghomeshi came forth and his beloved fans rushed to his rescue. In response, I wrote a piece urging people to avoid getting swept up in the ‘scandal’ and consider the overarching systemic issues at play in society before defending their favourite radio host.
Now, eighteen months later, the highly anticipated and highly publicized trial has begun. And with its inception, it brings to light how these societal values and norms translate into our criminal justice system.
When ruling on a sexual assault case in the Canadian judicial system, a judge and/or jury must determine, as a question of fact and law, whether or not consent was given. The legal test is that a person must take “reasonable steps” to ensure to which the sexual activity is being consented. It is unclear what exactly counts as taking ‘reasonable steps’, but we do know that the victim not saying “no” is not enough. In making this determination, the judge/jury decide whether they believe the defendant took reasonable steps and examine the complainant’s character and behaviour. This, at best, turns the courtroom into a ‘he said, she said’ battle, and at worst, a slut shaming affair.
A Prosecutor’s Playbook.
So how does this look in practice? Here are a few strategies in the prosecutor’s arsenal to discredit the complainant:
Step One: Analyze the character of the complainant. This means you want to dig up as much dirt as possible on the victim in order to make them look like a bad person, and therefore unreliable. If possible, bring up any past run-ins with the police, evidence of a poor employment history, and any details of the complainants sexual history that might put the individual in a bad light (including how many partners they’ve had and in what circumstances).
Step Two: Dissect the relationship with the accused. You want to bring up facts about the complainant’s relationship with the attacker to show the jury how close the two were; how the attacker would never do this because their relationship is meaningful. Alternatively, you want to show an enduring relationship between the two in order to illustrate that clearly there was no malice at hand, or else the complainant would have severed all ties and instantly reported it to the authorities. During cross-examination, Mr. Ghomeshi’s lawyer did an excellent job of it. Marie Henein accused one of the complainant’s of lying under oath when she said she had wanted no contact with Ghomeshi, even though she had written emails to him after the attack. The complainant said the emails had been used a “bait” to get Mr. Ghomeshi to answer questions about the assault. but her response was drowned out the by the growing skepticism of the courtroom.
Step Three: Examine the victim’s behaviour. Dwell on the foolishness of the complainant’s behaviour with the message that they brought the attack upon themselves; they only have themselves to blame. Explore the circumstances in which the two first met, whether or not the victim conducted himself/herself properly, and explore their opportunities/motivations for getting into a situation in which sexual activity could have taken place. You want the jury to think that the way the complainant behaved suggested she might have consented at the time, or the defendant might have believed that she consented. In the alternative, imply to the jury that whatever happened during the event, it was at least in part the complainant’s fault, so therefore the defendant does not deserve to be convicted.
Remember that little thing called victim shaming? The North American justice system is a shining example of perpetuating this debilitating phenomenon. By allowing prosecutors to attack the ‘credibility’ of a victim (97% women) based on his or her sexual history, perceived feelings/actions, and hearsay, this turns the table and puts the victim on the proverbial stand rather than the defendant. The complainant, a sexual assault victim, is forced to justify his or her clothing decisions, sexual preferences, and emotional responses. The trial shifts the focus away from the defendant, accepting that they ‘thought they wanted it’ or ‘that never happened’, and instead maligns the victim for ‘putting themselves in that situation’.
As author Kate Harding posited, in her book Asking For It: The Alarming Rise of Rape Culture and What We Can Do About It, “Imagine if every pedestrian who reported being hit by a car were thoroughly investigated for evidence of suicidality, while the driver’s claim of ‘I didn’t see him there,’ would be reason enough to drop any charges.”
R v Ghomeshi has sharply highlighted the most difficult to prove and most common sexual assault allegation scenario: a perpetrator and victim(s) in a close relationship. It veers away from the ‘stranger in the street’ scenario, instead involving an accused who has close proximity to the complainant. In this case, all of the complainants were in touch with Ghomeshi before and after the alleged assaults.
For better or for worse, this trial has exposed the cruel nature of sexual assault proceedings, putting the victims on the hot seat. It’s an area of the Canadian criminal justice system in need of radical overhaul.
This paradigm in the court plays off of the embedded viewpoint to which North American society too often subscribes. Even educated women like Margaret Wente are quick to condemn the women on the stand. Her statement that the court “needs witnesses who are consistent, credible and open. And Ms. DeCoutere, for one, was not,” reinforces the troublesome status quo of sexual assault proceedings. Calling Ms. DeCoutere a “lovesick fan, pursuing a man who was no longer interested in her” is a classic example of the horrendous stigma regarding sexual assault law in North America.
Thirty years ago the Canadian Criminal Code underwent substantial changes, intending to remove some of the stereotypes and stigma that surround sexualized violence. The changes implemented to the Criminal Code were envisioned to improve how courts treated sexual assault complainants, and to broaden the court’s understanding of it. Canada replaced the term ‘rape’, seeking to eliminate the dramatized, almost pornographic focus on penetration and replaced it with ‘sexual assault’ in order encompass all the forms of harm that the victims experience. The Criminal Code also included provisions like the rape shield to prevent a complainant’s sexual history being aired in court (though this can be easily skirted today). Furthermore, the last thirty years have seen a surge in sexual education in schools and great movements like “No means No” and “Take Back the Night”. Unfortunately, and very clearly, this has not been enough.
Yet, sex crimes continue to be treated differently from other criminal offences and the logic as to why simply escapes me. No one asks the victim of a mugging why they handed over their wallet, what they were doing in that neighbourhood, or whether the crime even took place. Arguably, women today who bring forth sexual assault allegations are perhaps more vulnerable than women in the 1980’s. Yes, I know it seems dramatic, especially since the concept marital rape was nonexistent back then, but stay with me.
Unforeseen Societal Shifts.
Two majors changes in society have aggravated the victim’s plight of seeking justice in our criminal system; 1) Technology, 2) Sexual Agency.
Thirty years ago victims did not have smart phones containing thousands of personal conversation and documents. Thirty years ago, social media did not publicize one’s life. These new aspects infringe upon the complainant’s privacy and can unfairly poke holes in their narrative. Prosecutors are more than happy to tease through a victim’s Twitter account, Instagram photos, and emails. One racy photo posted four years ago can become extremely relevant. One email, written to appease your rapist, can change everything. Today, not only do complainants have to endure an aggressive and offensive trial process, but they also are often inflicted with online gender based violence and harassment. Victims today are forced to endure new, different and often painful challenges that previous generations were spared.
Another change that was not anticipated thirty years ago was the autonomy seeking, sexual liberation of women. A woman’s decision to go out alone at night, dressed however she wants, and engage in sexual activities with an individual who may not be her lawful partner, is often used against her as the complainant. This sexual agency has made it plausible to suggest a woman would consent to almost anything. In the case of 17-year-old Nova Scotian Rehtaeh Parsons, this included the notion that she consented to sex with two boys at a party while vomiting out a window. Furthermore, the courts uphold this 18th Century English model of chastity and purity, in which women are expected to feel violated and shameful after a consensual sexual encounter that they will thus feel the need to fabricate a claim so to make themselves feel better.
It is no surprise that sexual assault remains the most unreported and under prosecuted crime in North America. According to Statistics Canada’s crime victimization survey, only 8% of all sexual assault cases in 2004 were reported to the authorities.
Violence against women is not about the character of the victim. It is not about the behaviour of a woman. It is not about how they look, dress, act, or carry themselves. It’s not about how many drinks they had or how well they can remember the night. It is not about whether they have remained in contact, or in a close relationship, with their attacker(s).
Violence against women is about a human, worthy of respect and entitled to fundamental rights, enduring life altering abuse.
Let’s remember that.