What was really on trial in the Jian Ghomeshi case

Why women in sexual assault cases may be worse off than ever


 
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Jian Ghomeshi attends his pre-trial hearing at Old City Hall court in Toronto.  The disgraced former CBC radio host plead not guilty to sex assault and choking charges and elected to be tried by a judge alone.  (Melissa Renwick/Toronto Star/Getty Images)

Jian Ghomeshi attends his pre-trial hearing at Old City Hall court in Toronto. The disgraced former CBC radio host plead not guilty to sex assault and choking charges. (Melissa Renwick/Toronto Star/Getty Images)

Update, March 24: Jian Ghomeshi has been found not guilty of sexual assault and choking. The judge in the case said the complainants were simply not credible.


The world was reminded again recently of how alleged victims of sexualized violence are uniquely shamed and blamed for a crime they didn’t commit, after an 18-year-old woman reported being gang raped in a Brooklyn park earlier this month. In the woman’s telling, she and her father were approached by five teenagers, one wielding a gun; her father was ordered to leave and she was sexually assaulted. The accused, aged 14 to 17, predictably told a different version while in custody. Yes, sexual activity occurred, their lawyers said, but it was consensual, contrary to police reports stating the young woman had been visibly traumatized and injured. They claimed a cellphone video taken by one of the boys showed the woman “smiling” and “laughing.” Then the capper: they reported the woman had been drinking alcohol with her father and made the outrageous claim the pair were having sex, a charge denied by the father. (The woman has not spoken.)

The media had a field day impugning the woman. Questions, none related to the actual incident, piled up, including why her father took so long to contact police. On CNN, reporter Pamela Brown tried to dig for dirt in an interview with New York City councillor Laurie Cumbo, asking what Cumbo knew about reports the alleged victim “was drunk, combative, and that she bit a police officer and she initially refused treatment.” In a response that went viral, the councillor decried the typical questioning of people alleging sex crimes—the “Was she drunk?” “Was she properly dressed?” “What time was it?” line of inquiry. “We need to focus on those five individuals who committed this heinous crime and what were the bad decisions they made all throughout the day,” Cumbo said. “Have they been drinking? Have they been smoking? What would click in someone’s mind to think that something like that was okay?”

Canadian criminal defence lawyers concur. “There’s far too much scrutiny of the victim in sexual assault cases,” Toronto lawyer Susan Chapman says. “It’s unparalleled.”

Just how unparalleled will be on display on Feb. 1 when Jian Ghomeshi’s criminal trial commences at Toronto’s Old City Hall; the former CBC Radio host faces four charges of sexual assault and one charge of overcoming resistance by choking (a fifth sexual assault charge will be tried in June). Last fall, in a bid to forestall the inevitable glare on Ghomeshi’s four accusers, Gillian Hnatiw, the Toronto lawyer representing Lucy DeCoutere (the only complainant to request not to have a publication ban on her name) issued a statement: “Fundamentally, the case is about the alleged behaviour of Mr. Ghomeshi,” it read in part. “It is important to victims everywhere that we remain focused on that fact.”

The directive is noble, if unrealistic, given the way sexual assault cases are tried in this country. Ghomeshi’s lawyer, Marie Henein, is known for cross-examination likened to “a machete” in a recent Toronto Life profile. That descriptor is gentle, say lawyers who know her: “Those women don’t know what they’re getting into,” says one.

Related from Anne Kingston: Everything you need to know about the Jian Ghomeshi trial

R. v. Jian Ghomeshi will put klieg lights on the most common sexual-assault allegation scenario, and the most difficult to prove beyond a reasonable doubt. It involves an accused who’s known to the complainant— in contrast to a “stranger in the bushes”; all three complainants in this case socialized with Ghomeshi before and after the alleged assaults, which date back to 2002 and 2003. It is also typical that reporting of the assaults was delayed.

The trial is destined to expose the try-the-accuser prosecution of sexual assault, an area of criminal law in need of radical overhaul, according to those who work within it. Thirty years after significant changes were made to the Canadian Criminal Code to remove the stigma and stereotypes surrounding sexualized violence—including the introduction of rape shield provisions to prevent an accuser’s sexual history being aired in court—women coming forward with sexual assault allegations are worse off than ever. Sex crimes continue to be treated singularly within the law. No one asks the victim of a mugging why they handed over their wallet, or what they were doing in that neighbourhood, or question whether the crime even took place. We know false claims are the anomaly (two to eight per cent, according to FBI studies). Yet disbelieving the complainant remains the norm. Conviction rates have not risen a whit: according to the 2012 study “Sexual Assault in Canadian Law” they stand at 0.3 per cent. And complainants are still on trial. Consider the defence lawyer slang for questioning those who dare come forward: “whacking.”


Darren Calabrese/CP

Darren Calabrese/CP

It may seem inflammatory to suggest women are worse off now compared to a time when marital rape had just been labelled a crime. Changes to the Criminal Code were intended to improve how courts treated complainants, almost always women, and to broaden understanding of sexual assault. “ ‘Sexual assault’ replaced ‘rape’ to eradicate that false, almost pornographic focus on penetration and to try to address in generalized terms the actual harm experienced by victims,” explains Toronto criminal lawyer David Butt. That’s a particularly invasive form of violence, he says, “one that violates sexual integrity.” We’ve also seen decades of research into and education about sexualized violence—“White Ribbon” campaigns (Ghomeshi was a vocal supporter), “No means no” initiatives.

Related from Chatelaine: Lucy DeCoutere on nightmares, healing and the Jian Ghomeshi case

Yet those working within the system note changes unanticipated when laws were rewritten decades ago—like cellphones and social media—which render rape shields porous and that breach complainant privacy in new ways. Twenty years ago, complainants protected by publication bans weren’t at risk of online bullying and harassment. And there was no risk of defence lawyers combing through Instagram and Tinder to seek out incriminating pics or posts to create reasonable doubt. All of that makes coming forward fraught in ways it wasn’t a generation ago.

Today, a “because it’s 2016” belief in female sexual agency can be used against complainants. That women freely go out at night, dress as they want, and enjoy sex outside of marriage has made it plausible to suggest a woman would consent to sex with five boys, one of them armed, in a public park or, in the case of Rehtaeh Parsons, consent to sex with two boys at a party while vomiting out a window. At the same time, the courts often uphold a Victorian model of prim womanhood in which women would experience such violation and shame after a consensual sexual encounter that they would fabricate a claim or seek revenge.

“There’s much higher sensitization to sexual assault, its impact and the seriousness with which it has to be treated,” says Butt. “But will you have more success [as a complainant]? No. And that’s the problem.” Sexual assault remains the most unreported (only eight per cent reported in 2004, according to Statistics Canada’s crime victimization survey, which interviews women anonymously) and underprosecuted of offences. Lawyers regularly discuss whether they’d advise a loved one to report a sexual assault, says Butt. “I’ve had countless conversations with police officers, judges, defence lawyers, attorneys— and at end of the day we shake our heads.”


Actor and Air Force Captain Lucy DeCoutere during a video interview with the Star in regards to her past personal experiences and interactions with CBC host Jian Ghomeshi. Lucy is the first one to speak out publicly about Jian Ghomeshi's hitting and choking.

Actor and Air Force Captain Lucy DeCoutere during a video interview with the Star in regards to her past personal experiences and interactions with CBC host Jian Ghomeshi. Lucy is the first one to speak out publicly about Jian Ghomeshi’s hitting and choking.

Sexual assault trials are unique in our justice system in that there is dispute over whether the crime happened at all—even though disappearance of money or a car can be just as difficult to prove. “Typically, there’s no question of whether somebody was injured or money was stolen,” Hnatiw tells Maclean’s. “The actus reus part—whether the crime occurred at all—is rarely in play, but that’s a common defence in sexual assault.”

The accused’s right to a vigorous defence, combined with presumption of innocence, creates an inevitable “he said/she said” showdown, even though the law recognizes consent is subjective: “There is no such thing as implied consent in sexual assault,” says Toronto criminal lawyer Jonathan Rosenthal. “Consent is viewed though the eyes of the victim.”

Yet those who come forward aren’t treated as autonomous agents. They’re subject to publication bans (also employed to protect children)—which telegraphs the message that being a victim of sexualized violence is shameful. The ban is problematic, lawyers say. “It tries to ameliorate any embarrassment that complainants have been sexually assaulted and have to face this horrible experience in the courtroom,” says Butt. “Is it paternalistic? Yes.”

In an ironic twist, sexual assault complainants aren’t asked to consent to the ban; they have to opt out, as DeCoutere did. That sends a signal too, says Hnatiw: “For a lot of women, coming forward and laying charges is about regaining control over a horrific event in their lives. Being told, ‘Well these are the terms on which you can do it’ can be further disempowering.”

That, of course, is just the start. Accusers in sexual assault cases have their personal history laid bare in a way not seen in other criminal prosecutions, a double standard summed up by Kate Harding in the recently published 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.”

Rape shield laws can be skirted: it’s possible to bring application in writing under Section 276 of the criminal code for “relevant” details on a complainant’s sexual history, as Henein did in the Ghomeshi case. These applications are supposed to be rare, but they’re common, says Chapman. “And they continue to succeed in two scenarios: to probe prior victimization and to probe the relationship between the perpetrator and the complainant.”

Cellphone content further extends the scope of admissible evidence: “If you walked in with a briefcase of medical records and tax returns, they wouldn’t say, ‘We’re going to ask you for that,’ because it doesn’t seem relevant,” says Chapman. “But [information that] shows up on your phone—all contacts, pictures—the Crown is routinely collecting that info, which then has to be disclosed to the defence. It used to be women could pick up the phone and talk to their friends, but now there’s a permanent recording or messaging.”

If that strategy is used in the Ghomeshi defence, it will be all the more galling, given the collective catharsis of women speaking out and supporting each other, seen in the #BeenRapedNeverReported hashtag that trended on Twitter after allegations mounted against Ghomeshi. Such communication between complainants can be framed as collusion or conspiracy in court, a tactic many expect Henein to employ. The idea that there’s something suspicious about communication between women is antiquated, says Hnatiw, citing the Cosby case: “If you are one of the women at the eye of that unique, very public storm, who else are you going to talk to about that experience? But the gloss that gets put on that in criminal courts is that it’s copycat or fabrication.”

More from macleans.ca: Jian Ghomeshi: How he got away with it

Legal experts point to another ongoing problem: The very red flags used to discredit the witness and raise “reasonable doubt”—why didn’t they come forward earlier, why did they see the defendant again (both expected to be deployed by Henein)—reflect dynamics of how sexualized violence actually occurs. “Yes, she was giggly at the party, she did have too much to drink, and she did kind of like this guy beforehand,” says Chapman. “But all that dropped at a certain point of time. It’s not unusual. It shouldn’t be used against your credibility.” It’s also common to wait to report, if report at all, when the accused is in the same social circle. “Most people try to forget and move on, or they rationalize or they focus on mental health and well-being as opposed to engaging in the criminal process,” says Hnatiw.

But enduring rape myths continue to animate sexual assault cases, lawyers say. Among the most prevalent: the “woman-as-sexual gatekeeper” model in which sexual assault is dismissed as “sex gone bad,” not criminal behaviour. During an infamous 2014 Alberta trial, Justice Robin Camp, now a federal judge, questioned the 19-year-old woman who alleged being sexually assaulted over a bathroom sink during a house party: “Why couldn’t you just keep your knees together?” and “Why didn’t you just sink your bottom down into the basin so he couldn’t penetrate you?” he asked. He acquitted the man, referring to the alleged rape as misbehaviour. The ruling was overturned on appeal and is set for retrial. (Camp remains on the bench but will be steered away from cases involving “sexual conduct”; he vowed to “undertake a program of gender sensitivity.”)

While the “formal culture” of the court is resolutely committed to “the utter rejection of those myths,” says Butt, the informal culture—“what actually happens in the courtroom”—can allow them to slip through, “which is why it is so notoriously difficult to get convictions in acquaintance sexual assault scenarios.”


Jian Ghomeshi exits the College Park courthouse with his lawyers during a hearing in which three new charges of sexual assault were laid. Photograph by Cole Garside

Jian Ghomeshi exits the College Park courthouse with his lawyers during a hearing in which three new charges of sexual assault were laid. Photograph by Cole Garside

To change that reality, Butt and others are advocating for specialized sexual assault courts like those that exist for criminal cases involving drugs and mental health; these will entail a subset of judges with special training in the psychological dynamics of sexual assault and lawyers for complainants. “A one-size-fits-all criminal justice model doesn’t fit the reality of sexualized violence by the people who are experiencing it,” Butt says.

Complainants’ access to lawyers, destined to be controversial, could even out a lopsided playing field. As it stands, accusers appear as witnesses in the people’s case against the alleged perpetrators; they’re not given counsel of their own. “They have few people they can speak to with any confidence,” says Hnatiw. “If they go to a therapist [they] are at risk of having therapy records exposed. They cannot speak to the Crown with any frankness because they’re under obligation to disclose their statements to the defence. Friends or any formal support network can be subpoenaed as well.” A lawyer would also provide witness prep: “To be thrown on the stand and be subject to adversarial cross-examination is retraumatizing for many.”

Butt would also like to see the burden of proof lowered from “beyond a reasonable doubt” to a balance of probability, as well as reduced penalties. “The bar is so high,” he says, “that even if the defendant is remotely believable, the law says a conviction won’t happen.” He’s prepared for criticism that reduced penalties are soft on sexual assault. “My answer is: with a conviction rate of three in 1,000, being hard is sure working well for us, isn’t it?” He rejects the suggestion that lowering the burden could make it easier to be convicted: “The change in direction should only be at the conclusion of a thorough and professional investigation.”

He believes a parallel court is the only way change can come: “We either continue to rearrange deck chairs on the Titanic or we consider taking a completely different direction and explore ways that we can be responsive to the needs of victims of sexualized violence by seeking, and gaining for them, some sort of accountability.” Chapman agrees: “Most women just to want it known it happened and this matters. Time and time again I talk to women who’ve experienced the most devastating thing in their life, and say, ‘What would you like to see happen? If he was prepared to apologize would that make any difference?’ And they say ‘Absolutely.’ ”

A spirit of change is in the air. Last year, University of Windsor law professor David Tanovich called for “ethical lawyering” in sexual assault cases in “Whack no more,” published in the Ottawa Law Review: “It is time to address the discriminatory lawyering and denial of access to justice that is taking place in these cases,” he wrote. Whether such sentiment will affect Marie Henein’s much-anticipated performance remains to be seen.


 

What was really on trial in the Jian Ghomeshi case

  1. I can understand fully a woman having issues coming forward after a sexual assault. But why on earth would you date the perpetrator again. That, unfortunately, could well be their undoing.

    • So, you don’t get the whole “date me or I’ll make sure you’re fired from your job and won’t get another one in this field.” that men in positions of power have over the women around them?

      • And this is what you believe in the ghomeshi case. He was threatening them so they accepted the violence?

        Ghomeshi is a loser with some kind of mental problems, but so far the two women seem to have their own issues.

        I can see if they understand that he was a powerful person in the Canadian arts community, so they would be hesitant to come forward. But why would they be calling him back and emailing sexually suggestive letters months after the deeds. That to me suggests opportunism more than victimization.

      • Nonsense.
        He had no professional or personal relationship with any of them. It was just short term dating.
        Your comment is irrelevant and confuses the issue.

    • Yes, my guess would be ‘I’m your boss and you’ll never work in this industry again if you don’t date me and pick me up a sandwich ASAP.”

    • I get it….they weren’t spanked when they were children.

  2. As a father of two adult daughters, grandfather of a teenage girl, and the brother of three sister’s it’s very difficult not to think of doing sexual predators unspeakable harm. Instead I would prefer to send a mental hug to all victim’s of such despicable and evil behaviour. If these charges are in fact true those women are going to need all the strength and support they can get. Should this man be found responsible and sent to jail he won’t escape the angry father’s in there, you can’t hide from them because you have to eat….

  3. Some fairly major problems here – it would be useful to have a similar ‘academic’ type article from the other side. But to start – the writer seems to be suggesting that once a woman cries ‘rape!!!’ – that should be the beginning and end of the process. Accusation = proof of ‘guilt’ who needs an expensive trial? Just punish the accused. Which is kind of contrary to most democratic legal systems, where any accused is entitled to a defense. A *fair* defense. Comparing the alleged assault to theft is also incorrect – with sexual assault, in the kinds of cases she is talking about, there is (usually) no question that the sex took place, the point of contention is whether it was consensual or not, and there are many points indicating it could have been that it is only fair to raise – with most theft, we more or less never hear an argument that ‘Oh, no, I didn’t steal the money he gave it to me!!’. And we need to consider the media – who actually is ‘attacking the victim’ here? The defense may raise arguments trying to make the case it was consensual, but then it’s the ‘femi-nazi pretend journos; out there who start screaming ‘blaming the victim!!!!’ etc – if they’d just let the legal system do what it’s there to do, without trying to prejudge the guilt of the accused, things might be a bit more sane. As I said, a longer article exploring some of these things would be useful here, rather than this attempt to force the Cdn legal system to stop doing what it’s there to do.

    • Except, of course, you have just blamed the victim who gets no lawyer, no legal right to a defense and her every action criticized. The legal system is broken in the case of rape. A *fair*defense would give the woman the same rights as the rapist to have his background and attitude challenged, his dating practices discussed and denigrated, his choice of underwear questioned. And no, 50 years ago, women were being blamed for their rape and it still happens today, it has nothing to do with your derogatory term femi-nazis( which is simply a method of attempting to shut women up, by the way). Why must men always assume that the victim is the liar? Is your ego so tiny that you can’t imagine a woman demanding both justice and respect against a man?

      • “Except, of course, you have just blamed the victim”
        No he didn’t he blamed feminists.

        “no legal right to a defense”
        That’s because she isn’t being charged. People don’t get a free lawyer every time they do something they may be criticized for.

        “and her every action criticized.”
        And is that worthy of concern? People are saying she did something she shouldn’t, that happens in a free country, get over it.

        “A *fair*defense would give the woman the same rights as the rapist to have his background and attitude challenged, ”
        But the accused has LESS right to not have his background and attitude challenged. The whole trial is a challenge of his attitude and anything that shows a pattern can be introduced IIRC.

        “Why must men always assume that the victim is the liar?”
        We don’t, but we reserve the right not to assume he/she isn’t.

        ” Is your ego so tiny that you can’t imagine a woman demanding both justice and respect against a man?”
        What the hell are you talking about?

    • I believe what the writer is trying to point out is that even in cases where women have obviously been attacked (5 youth attack 1 girl; a man punches and chokes his victims; 2 boys rape a girl while she is vomiting), the women involved are put on trial to prove that they are indeed virtuous enough to be considered true victims rather than consensual and batsh*t crazy willing participants. Somehow it doesn’t work that way in a murder trial because even a female victim can’t consent to her own sexual assault and murder so if the perpetrator chokes the victim a little to hard, the whole blame the victim defense is suddenly moot.

      • ” even in cases where women have obviously been attacked (5 youth attack 1 girl; a man punches and chokes his victims; 2 boys rape a girl while she is vomiting), ”
        Where was it shown that these women had obviously been attacked? They had obviously had sex with multiple partners and obviously been drinking, but that doesn’t prove rape. In fact what would make it “obvious” in the first case it seems to me is the video, the contents of which the author doesn’t mention.

        “the women involved are put on trial to prove that they are indeed virtuous enough to be considered true victims”
        It has nothing to do with virtue. Sluts are raped all the time. What they have to prove is that they didn’t consent.

        “Somehow it doesn’t work that way in a murder trial ”
        Yes because people can’t legally consent to their murder in most jurisdictions. Whether they should be allowed to or not is another issue, they can’t. Of course if the death was claimed to be unintentional (e.g. breath-play accidents) then the argument that they consented to the risk WILL be raised and their behaviour WILL be examined. Really do you get ANYTHING right?

  4. Thank you for the article which very much furthers a necessary dicussion in the area of supporting sexual assault victims. The acquaintence sexual assault crime is extremely difficult to prove. The process in many ways encourages victimizing the accuser yet again as the defense of the accused boils down to some form or other of “don’t believe her.”

    Two things: I like the discussion about special courts. The focus of our criminal justice system, unfortunately or not, is not on the accuser. The focus in our system is on the government’s ability to prove that the accused is guilty beyond a reasonable doubt. Stepping away from “proof beyond a reasonable doubt” and “innocent until proven guilty” will be a problem as the government, in a free society, seeks to wrest that freedom from the accused and punish them by incarceration.

    Two: As a person involved in the criminal justice system who considers himself an avid advocate of sexual assault victims, my experience is that the FBI stats mentioned in your article are not representative of reality. I make no comment on the Ghomeshi case, the FBI, or any other case. It is my experience that the statement ,”We know false claims are the anomaly (two to eight per cent, according to FBI studies). ” is seriously unreflective of reality.

    Obviously this comment is not going to be popular but please consider this: When a Detective (assume a caring, experienced, talented, compassionate, motivated individual decides the “accuser” is lying, misrepresenting the truth or completely fabricating a sexual assault, that is not “usually” documented in any public document. The case goes away, the notation regarding “no known suspect” or some kind of case closing notation occurs. Opening a case against an unreliable, fabricating witness is in most instances a low percentage undertaking. The case is deemed “unable to be proven beyond a reasonable doubt.” To my knowledge no one tells the FBI or the RCMP that there’s been a false claim.

    These cases, very important to our concerns about justice, are complicated. My point is that I think they are far more complicated than anyone not immersed in the criminal justice system knows.

    • Let me get this straight. You are stating that the FBI/RCMP statistics that 2-8 percent of rape claims are false is incorrect and this is based on knowledge gained from where? The FBI/RCMP garner their statistics because they investigate the rape claims and find after intensive investigations that 2 to 8 percent of claimants have made false claims based on the evidence they uncover. Some cases they do not prosecute because they cannot win, not because they think the claimant is lying. In cases where the claimant is believed to have made a false claim, the claimant is charged with making a false claim.

      • From where: Years of public service with local law enforcement, prosecutor, police officer, detective. I haven’t done any exhaustive study, nor have I seen the FBI study. Consider being a local prosecutor with a citizen claiming to be an assault victim. You decide the alleged victim is not telling the truth. You believe the “claimant” has lied, completely (happens) or in part. You decide that because of this you won’t go forward because, among other factors (including ethical factors) “you can’t win the case” nor should you try (no pun intended).

        The standard for proving cases is “beyond a reasonable doubt.” I would say that it is highly unlikely that the prosecutor would pursue a case against the “fibber, embelisher, fabricator, outright liar.” I would say it just doesn’t work that way.

  5. Long story short the little pric# is going to get away with it.

    • Yes, it is interesting. The defence attorney is even trying the one victim in the press for waving her privacy and giving quite interviews but how about the supposed perp. He wrote a whole poor me story on Facebook and not a peep from his defence attorney about that. The pric# might not get away with it. Star power wise, the victim is more popular and more respected and surely more believable.

      • He’s more believable because he hasn’t been shown to have repeatedly lied in court.

    • Actual story short there’s zero evidence that he did it.

  6. Did he deliberately choose a lawyer who looks like himself in drag? Or is that his sister? Same nose. Same lips. Same eyebrows, Similar eyes. It’s like his identical twin came out as a woman.

    • No he chose her because she is one of the top 10 criminal defence lawyers in Canada.
      Looks aren’t everything Mud.

  7. Please excuse my ignorance, but why is the rape shield protection being discussed? Maybe because it was prior to the complainants being put on trial…but it’s my understanding that the rape shield law protects against PAST sexual history insofar as it is used to discredit the complainant. Also, the argument on technology, I don’t really get. I mean instagram and tinder, etc can be contextualized, can they not? Maybe that’s the issue you’re speaking to ; that they have to be contextualized to begin with (explain you smiling with her/him)…but again, if we’re talking about this case in particular or any sort of behaviour AFTER the fact, isn’t that a reasonable question to ask?

    My issue here is not with the defence strategy but rather the prosecution’s. Did they not know about these communications after the fact? And if so, why didn’t they see it necessary to prep the complainants before trial? And if they didn’t…well…someone didn’t do their due diligence.

    But I thank you for presenting this piece. It seems that the majority of the readily available media is perpetuating and unbalanced criticism and demoralization of the complainants (present AND FUTURE).

    • No the Crown and Police did not know.
      The 3 women all with held important information from the police and the Crown and lied under Oath.
      Crown was blind sided by this “pack.”

      • HOW could the prosecution NOT KNOW? It’s one thing for the police…I get that. But the prosecution? Isn’t that your job? To make sure you don’t get totally blindsided? And another thing…aren’t they supposed to be made aware of the evidence before trials to avoid being blindsided?

  8. Reading this MacLean’s writer’s articles on this trial it seems to me that Ms. Kingston is very biased. Her writing creates a distorted impression of what is occurring here.
    She skirts over just how dishonest (purgery) the statements these 3 women have given under Oath to the Police and to the Crown, really are.
    Does this writer have an Agenda too?
    Or is it that her areas of writing (noted above) have not included any area where the writer has needed to practice the amount of knowledge and of diligence that writing about a criminal trial demands?
    These 3 women will be lucky if they are not penalized for purgery and slander/defamation before this is done!

  9. The coverage of this trial by Anne Kingston is completely biased.
    Put a reporter on this who understands the legal system. There are a number of important issues being played out here that need to be fairly addressed.
    Macleans, you can do better than this.

  10. We need special courts for crimes against women. Women are too feeble-minded and weak to be able to stand up to a judicial system that relies on truthful testimony and evidentiary due process.

    Those are patriarchal constructions. Women need lower, more flexible standards so their victimologies can be heard and counted as true, regardless of messy things like evidence and testimony under oath.

  11. ” Yes, sexual activity occurred, their lawyers said, but it was consensual, contrary to police reports stating the young woman had been visibly traumatized and injured. They claimed a cellphone video taken by one of the boys showed the woman “smiling” and “laughing.” ”
    OK, I’m confused, did this video actually exist or didn’t it? I mean if there was video then that should have settled the issue of consent right? But you mention it and then you don’t mention what was in the video. Did it confirm the defendants version or deny it?

    “has made it plausible to suggest a woman would consent to sex with five boys, one of them armed, in a public park or, ”
    But that was always plausible. Women consent to sex with multiple partners every day. More than 4 is uncommon, sure but not exactly unknown. As for one of them being armed, lots of people are armed, that doesn’t make consent to have sex with them impossible. It is quite possible to have consensual sex with someone who has a gun on them at the time. While of course a belief that if they you don’t agree you will be shot is not consent, that cannot be implied merely from the presence of a gun. Lots of people know people who carry guns but they do not believe will shoot them if they refuse to have sex.

    ” in the case of Rehtaeh Parsons, consent to sex with two boys at a party while vomiting out a window.”
    Again, vomiting out a window is entirely consistent with consenting to sex. Lots of people are held to be capable of consent to actions while drunk enough to vomit. For instance someone that drunk paid a woman to have sex would be charged with procuring prostitution.

    “Gillian Hnatiw, the Toronto lawyer representing Lucy DeCoutere (the only complainant to request not to have a publication ban on her name) issued a statement: “Fundamentally, the case is about the alleged behaviour of Mr. Ghomeshi,” ”
    Except it isn’t. Fundamentally it’s about whether that behaviour was consented to. Nobody disputes tha the women in question had sex. What people dispute is their reason for doing so. Their mental state at the time isn’t just part of the case _it is the case_.

    “Sex crimes continue to be treated singularly within the law. No one asks the victim of a mugging why they handed over their wallet,”
    That’s because people don’t usually go up to strangers on the streets and offer them their wallets. People do however go up to others (strangers or not) and offer to have sex with them.

    ” or what they were doing in that neighbourhood,”
    Who is asking anybody what they were doing in that neighbourhood?

    ” or question whether the crime even took place. ”
    Again that’s because a stranger having your wallet is evidence that he took it without your consent. But actually even this is too weak a claim against your argument. If I represented a mugger found with a victim’s wallet I would absolutely question whether the crime took place. Maybe the wallet fell out of your pocket and my client, being the good citizen he is, sought to return it. Maybe the victim was drunk and ashamed of how careless he was and so pretended to have been mugged for sympathy or to avoid censure for losing the money.

    “And there was no risk of defence lawyers combing through Instagram and Tinder to seek out incriminating pics or posts to create reasonable doubt.”
    You’re right there wasn’t. So if a “victim” had made numerous comments about how well she was getting on with the “rapist” after the “attack”, those comments would have been made in private conversations. It would be impossible to prove these conversations ever took place. Now you can look up what these women said about their “attacker” and compare it to how an actual victim would act. That’s not a bad thing.

    ““Typically, there’s no question of whether somebody was injured or money was stolen,” Hnatiw tells Maclean’s. ”
    Actually there’s often a question of this. People can’t just claim that someone took money without at least some evidence that it existed in the first place. Defendants might well insist that the property owners lied about thefts to collect insurance money. It’s not AS common as claiming that a rape didn’t occur because of consent, for obvious reasons, but it still happens.

  12. I just wanted to follow up at this late date about the story that the author of this piece in the very first paragraph

    http://www.chicagotribune.com/news/nationworld/ct-brooklyn-gang-rape-charges-dropped-20160225-story.html

    to quote:

    “Prosecutors announced that they were dropping all the charges against the five teens, aged 14 to 17. The woman and her father had provided inconsistent and unreliable stories, said Brooklyn District Attorney Ken Thompson. Snippets of cellphone videos suggested the sex was consensual.

    Worst of all, the father himself had been “engaging in sexual conduct” with his own daughter when the incident began, Thompson said.”

    This is the allegation that Anne Kingston herself characterized as “outrageous” in the last sentence of the paragraph.

    A note should be added this story stating that the author here was completely wrong.

    Moreover, and as if the Ghomeshi proceeding didn’t bring this out entirely, the story illustrates why there has to be a proper, objective police investigation into all crimes, including accusations of sexual assault, the very notion of which Kingston seems (or in fact does) poo-poo.

    It is a testament too of the declining journalistic standards of a once fine publication.

  13. Do not view this case for more than it is. It is very much part of
    the same old practice at the federal government and federal crown
    corporation levels.
    Until they fall out of favor, these violent bullies are protected. Any target denouncing their misconduct is quickly discredited and silenced. Pleasing females who play along are part of the discrediting process.
    Once the bully falls out of favor, the powerful want him out and bring forward the pleasing females to testify against him.
    In this instance, the defense lawyer knew the practice all too well.
    In 1992, during a phone-in TV program, a retired female employee of the CBC called in to state that she reached the high ranks of the company by using sexual harassment and passed herself off as a role model.
    The women who testified at the hearing worked as they were trained to work. They were consensual; they did not agree to be assaulted, but such is the risk of earning your living that way.
    Supreme Court of Canada decisions never changed federal employment workplace practices and neither will this. These bullies are a dime a dozen in the federal sector.

  14. Women are certainly worse off – but it is because of the antics of DeCoutere and the other two women who have trivialized sexual assault by their ludicrous and dishonest behaviour. It is utterly incredible that these women are not facing trial for perverting the course of justice. The should at least be facing a heavy fine. Because of their vacuous stupidity and mindless self regard they have created conditions where women who have experienced genuine sexual assault will have a more difficult time getting heard.

  15. Let’s suppose that Ghomeshi did behave as the women claim. How is he supposed to know that they were not consenually taking part in rough sex if they clearly wanted to have sex with him again? One of his accusers admitted to having sex with him again and DeCouterse’s infamous comment shows she clearly wanted to. The whole thing is ludicrous. DeCoutere and her fellow complainants should be in the dock.

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