The Jian Ghomeshi Trial Shows How Women Make Justice — Not The Courts

Like feminists across the world, I am enraged by yesterday’s decision by Judge William B. Horkins to acquit Jian Ghomeshi of four counts of sexual assault and one count of overcoming resistance by choking.

Ghomeshi, a formerly beloved Canadian broadcaster, was accused of hitting, slapping, biting, punching, and choking three women over a decade ago. But he has been accused of many more assaults than those of which he was acquitted yesterday. In the media and arts scenes of Canada, the grapevine squarely pegged him as a sadistic creep. Women would whisper to each other not to date him. Media programs at universities warned each other not to send women to intern on his radio show, “Q.” He was a “missing stair,” like James Deen, who, repeatedly called out on his violence by Stoya and other women porn performers, still continues to work in porn.

My anger is not, chiefly, with the judge, the vicious defense, or the weak prosecution. My anger is with the entire patriarchal capitalist, colonialist justice system — not just in Canada but across the Western world — that demands we all adhere to standards of truth, proof, and doubt inimical to women and to all marginalized people. I support anyone who uses the justice system to defend themselves, to protect others, to seek accountability — but I have no confidence that that system can deliver justice in a case where the marginalized go up against the powerful.

I am angry, but I am also resolute, because, despite Horkins’ decision, women have always known, and still know, that Ghomeshi is an abuser. That is why, as the Crown’s lawyer walked out to make a statement to reporters, his words were overwhelmed by the sound of protesters chanting: “We believe survivors.”

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In the trial, Ghomeshi’s lawyers didn’t stand a defense — they simply attacked the credibility of the women who accused him. The defense highlighted inconsistencies in their accounts of the assaults, even though the women had been recalling events of brutal trauma that took place years ago. Many of the defense’s strategies focused on the women’s seemingly inconsistent behaviors after the assaults, such as writing friendly notes to Ghomeshi, taking photographs sitting with him on a park bench, or sending him flowers. Led by the high-profile lawyer Marie Heinin, the defense team didn’t directly argue that Ghomeshi had not assaulted those women. Instead, they sowed the seeds of “reasonable doubt” in the mind of the judge, and, yesterday, they reaped the awful crop: In the verdict, the judge accused the complainants of selective reporting of the truth, of misleading the Court, of collusion.

Decades of campaigning against sexual assault in our society and years of patient education by experts on the reality of sexual assault seem to mean nothing to the judge. He sat in isolation, trying not Ghomeshi — the one supposedly on trial — but the three women who accused him, stringently disregarding the broader context of Ghomeshi’s well-known pattern of abuse. The whispered warnings of women over years, the long list of women coming forward to report their own violent Ghomeshi encounters after the story broke in the media in 2014, meant nothing to the judge — or, rather, took significance only when he wanted to accuse the three complainants of collusion.

We know that there is no one proper or right way to behave when one has been the victim of assault. Victims can have confusing recollections — in fact, the brain chemistry of trauma confounds recall, particularly years after the event. Victims can try to please or placate their attackers, particularly if their attacker is staggeringly powerful in the communities where they are trying to build their careers. After a vicious attack by Ghomeshi, Lucy Decoutere, the only one of the three accusers in this case who has made her name public, stayed at Ghomeshi’s house for an hour. Zosia Bielski described DeCoutere’s explanation in The Globe and Mail: “[DeCoutere] had been brought up to make the people around her happy and comfortable, to ‘foster kind thoughts’ with a ‘pleasing personality.’ She said she’d been raised to be polite to a host — even an allegedly violent one, apparently.”

And here lies the problem with the defense’s fixation on the complainants’s behaviors post-assault, the defense’s assertion that if the women were telling the truth, they would have done so in a clear, linear fashion: As women, we are socialized to be nice — to make peace with those who attack us, and to downplay violence — sometimes, consciously or unconsciously, even burying the significance of the attack in our own minds. To any woman who has experienced assault, these reactions are familiar, and the impulse to smooth things over rather than calling abusers out is incredibly compelling. Victims of assault can even wind up staying with their attackers or continuing relationships with them. None of these things invalidate the reality of the assaults, but, tellingly, dangerously, Horkins interpreted this behavior as a lack of credibility.

He also tore into the complainants for not sharing details of the emails sent and time spent with Ghomeshi after the assaults when they made their reports. Under cross examination, the three women claimed that they didn’t bring these things up because they didn’t seem relevant to the charges.

This is fucking true: An assault is an assault is an assault, without regard to what happens before it or after it. These women came forward to the police in rage and hope and solidarity, and it disgusts me to see them treated so cruelly because they don’t act like a “perfect victim” in the abstracted performance of a court of law.

One of the women said, under cross examination, that she had not disclosed everything because she was new to the judicial process and faced challenges in navigating the system. Horkins replied, acerbically, in his report, that the system was simple and all she had to do was to tell the truth, the whole truth, and nothing but the truth.

This was that statement that made me realize that my anger at the verdict was not just at the judge, at the media dragging the women over the coals, at the baying mobs threatening them — but at the justice system itself.

To this system, two victims of Ghomeshi’s abuse sharing strategy and solidarity online is “collusion.”

To this system, Lucy Decoutere’s courage in heading a campaign against Ghomeshi means that her complaints are “agenda-driven,” not truth.

To this system, women holding back on details that they know will mean the press and the public see them as crazy — potentially destroying their families, careers, and networks — means that they must be lying about their assaults.

I reject this system, which places the lofty standard of reasonable doubt above the reality of how sexual assault works in a culture where rape is both normalized and stigmatized.

I reject this system, which was called upon to throw a violent man in jail, for placing reasonable doubt above the reality of the roar of woman after woman calling Ghomeshi out in their own communities and in the press.

I reject this system, which not only has let these women down, but has repeatedly denied justice to women who have been assaulted. Cindy Gladue, an Indigenous woman and a sex worker, was murdered by a man posing as a client. At trial, the defense demanded that Gladue had liked violent sex. Her memory was desecrated further when her preserved pelvis was brought into court as evidence. And, sadly, horribly, her killer was acquitted of the charge of murder.

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For me, two things are true: I am enraged at Ghomeshi’s acquittal, at the acquittal of Gladue’s torturer and murderer, and, across the border in the United States, I am enraged at the grand jury panels, judges and juries who acquit the cops that rape and murder marginalized people. To convict them would have been a form of justice, and because of that I shout alongside the protesters who stood outside the Gladue and Ghomeshi courts and shouted, “Guilty.”

Yet, at the same time, I no longer believe that the courts and the cops of states built on hegemony and white male violence can truly serve justice, no matter how they are reformed. Their very concepts of truth, doubt, fact, and credibility ignore the systems of oppression that the marginalized must organize around in order to survive.

Courts like to pretend that they exist in a Platonic space, where complainants and defendants proffer universal, unquestionable facts and exist independently of the social contexts of our patriarchal, racist society. They fucking don’t. The Scottsboro Boys were convicted in trial after trial, and these convictions were not reversed until the U.S. Supreme Court ruled that excluding black jurors from Alabama panels was a miscarriage of justice. The justices ruling in that case understood that any concept — even one as seemingly immutable as truth — changes depending on whose eyes are upon it.

The feminist movement, in raising slogans demanding we believe survivors, does not claim that false accusations are impossible. Rather, it demands that we believe survivors because under patriarchy, survivors are disbelieved as a habit. It calls especially upon men, and particularly men with power, not to rape or assault, and to reject those men who do. And it understands that this change must take place in the spaces — like courts — where women do not have full respect or access.

I would demand that the courts reform themselves, and realize that the whispered warnings of women are a form of truth, that fawning over or placating an abuser is an understandable response, and that women are afraid to show the ways in which they are not perfect victims. But I have little hope that the courts will answer this demand, even as it is on the lips of women everywhere, without fundamental systemic change and an end to all forms of social inequality. As we fight for justice, we realize that, sometimes, the only justice possible is what we make ourselves: in our solidarity with each other, and in our movements that challenge the legitimacy of society itself.

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Lead image: flickr/Michael Coghlan

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