I have been teaching law now for the past few years and this is really the first time I'll be taking on a matter of our legal system in any detail. To start, I have in fact written on the Ghomeshi trial before (please read here) arguing that by virtue of his position, Ghomeshi's case will be high profile. I didn't know that the allegations would lead to a court case necessarily, but it was obvious from the start what the outcome would be. When the verdict was read yesterday, nobody was shocked. We had all prepared ourselves for the reality that an acquittal was virtually ensured.
My tack with this post will be to discuss the fact that our legal system is not equipped to handle cases of rape or sexual assault for many complex reasons. Moreover, I aim to look again at the public dimension of the case and the degree to which what happens outside the courtroom is in fact important.
Rape is complex, even if there are certain elements of it that are black and white. One of the reasons I have enjoyed teaching law is because it is very similar to history. Perspective is key, and for the most part you have to disregard concepts like "truth" and "objectivity" in the name of understanding experience as inherently subjective, self-serving, biased, and most importantly imperfect. This should apply to accusers and accused, but sadly in cases related to rape I feel like this element is often disregarded.
Rape is a tricky concept to deal with, let alone in a formal legal context. Talk to virtually anyone and they will have clear bias regarding who they are more likely to believe, the accused or the accuser. This is necessarily a problem for those who work in the criminal justice system. There is a systemic bias to believe the defendant and to search out inconsistencies in the victim's story.
Nuance is ultimately key. We have to understand that what Ghomeshi and his accusers will say are imperfect and potentially self-contradictory, and that's alright. Some of this is on purpose but a wider part is due to the sheer complexity of the situation, and this is often not tolerated from the claimant. We need to move beyond understanding rape as a creepy man and a sexually innocent, defenseless woman. Like it or not, we have preconceived notions of what a rapist looks like. If someone doesn't fit that mould (spoiler alert: virtually all rapists are normal people) then it's easy for us to be sceptical (read: forgiving).
There are many particularities of rape cases which need to be addressed.
Not the least of which being that it is very much about "he said she said" which leads to a reliance on character and therefore an affinity to assassinate the profile of the accusers in particular. Women who challenge their accused rapists in court live through having their private lives thoroughly investigated, giving the impression that it is in fact the accuser on trial rather than the accused.
Another issue is the inability to show evidence of a crime in many cases. So few cases even go before the courts in the first place, but remember that the burden of proof lies on the prosecution to show that rape occurred beyond a reasonable doubt. As we have seen in the Ghomeshi case, any evidence that shows continued communication or anything so much as wavering on the part of the victim as serious doubt that sexual assault occurred.
This is tied into the question of how is harm demonstrated. Unlike in a case of theft, murder, battery, etc, there is minimal clearly perceivable evidence of harm as much of the harm is psychological (which does not mean it is lesser). This has, historically, reinforced the previous notion of "he said she said" and is entrenched in the question of memory. There is a triple burden in a case of rape or sexual assault where not only is there an effort to prove that the accuser in fact committed the crime, but firstly that the act was even committed in the first place and secondly that it was non-consensual.
Further amplifying this are the cultural biases around rape and the very common misunderstandings of consent.
Factoring these elements together, we can see the the inherent problems of sexual assault when brought before the law. This is perhaps most evident in the verdict, with Justice Horkins remarking that the behaviour of women having rapey experiences as "odd" for having continued correspondence - a completely vapid statement that ignores the complexity of interacting with someone who has hurt you but for whom you have feelings. Has he heard of the #whyistayed phenomenon? The judgement, in general, was focused excessively on the character of the claimants, but to Justice Horkins' credit, he did state that the verdict did not indicate innocence, but merely that it failed to establish wrongdoing beyond reasonable doubt. We have to ask ourselves to what degree the judge had to acquit.
What this means to me is that there is an inherent incapacity through the courts to deal with these types of cases. If so, we have to contemplate the other major element of the Ghomeshi story: the media. I was extremely disappointed to have read and watched so much yesterday that took the ruling at face value, calling it fair. It is perhaps paradoxical that it is also referred to as the only possible outcome and in the next breath fair. Far from it. What happens next is important, and the media has a responsibility to share what has happened in court and to report honestly on the abysmal statistics regarding rape reporting and convictions so that everyone can be aware of the very real limits of our judicial system.