Ghomeshi trial: Everything wrong with sexual assault law

Brenda Cossman, a law professor at the University of Toronto, says the trial will discourage victims from coming forward.

Credit, Ulrich Baumgarten/Getty Images.

Credit, Ulrich Baumgarten/Getty Images.

Jian Ghomeshi was acquitted on Thursday on all four charges of sexual assault and one charge of choking. Having followed the trial, the acquittal isn’t surprising. One by one, each of the three complainants had their credibility — as it is defined in these kinds of cases — decimated on the stand. Defence counsel showed on-going contact with the accused, inconsistencies with police statements and collaboration between the witnesses. Each day, the trial seemed like more of a train wreck, as the Crown’s case collapsed, inexplicably broadsided by one revelation after another by defence counsel.

But that does not make the acquittal any less disturbing. The trial was literally a performance in everything that is wrong with sexual assault law, or more specifically, the way our sexual assault laws are applied. The Criminal Code provisions on sexual assault are actually pretty good — there is an expansive definition of consent or more specifically its absence, and the Supreme Court of Canada has insisted that consent be positive and on-going. But the social norms through which these laws are applied still leave a lot to desired.

Related: Full coverage of the Jian Ghomeshi trial

Sexual assault allegations revolve almost entirely around the credibility of the complainant. As the judge said in the Ghomeshi case, “There is no tangible evidence. There is no DNA. There is no ‘smoking gun.’ There is only the sworn evidence of each complainant.” That’s the thing about sexual assault cases — there is almost never a smoking gun. There is only the testimony of the complainant. And sure, credibility is important in all criminal cases. But there is something unique about how the credibility of complainants works — or doesn’t work — in sexual assault trials.

The underlying suspicion has long been that women lie about sexual assault. They consented to the sex, but they subsequently regret it. They were embarrassed/dumped/hurt/deceived — you can pretty much fill in the blank – and then turn around the falsely accuse men of sexual assault.

The suspicion is only heightened if the complainants don’t behave in ways that society considers befitting of a sexual assault victim. There are lots of complicated reasons that victims of sexual assault have on-going relationships with their abuser. But, if they do, they are at risk of no longer looking like victims. As the judge concluded in the Ghomeshi case: “Each complainant in this case engaged in conduct regarding Mr. Ghomeshi, after the fact, which seems out of harmony with the assaultive behaviour ascribed to him.”

Related: What I wish I’d known before testifying in the Ghomeshi trial

And if they don’t remember the details perfectly, if there are inconsistencies in their statements, or if they fail to disclose all of the ugly details because they are trying to present as good victims, well, now their credibility is even further destroyed.

Given how sexual assault trials go, given the centrality of the credibility of the complainants, given the prevailing norms about appropriate gendered behaviour, there is nothing at all surprising that the trial resulted in an acquittal. And that – the fact it is not surprising – is the most upsetting thing of all.

What happens to other victims of sexual assault — past, present and future — out there? Will they be emboldened to come forward? I really can’t see why they would. I can’t see why a woman with less than perfect facts would report sexual assault, and put herself on trial. Frankly, I cannot even imagine what perfect facts look like. Stranger rape in a dark alley, I guess. But, complicated, messy, intimate-partner sexual assault?  Not so much.

brenda cossmanBrenda Cossman is a Professor of Law and Director of the Bonham Centre for Sexual Diversity Studies at the University of Toronto. 

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