Thursday, 24 March 2016

Not guilty, and other thoughts...

So today, Jian Ghomeshi was found not guilty by a judge in an Ontario court on several counts of sexual assault and one count of choking.

The charges stemmed from three complainants who claim he slapped, punched and/or choked them during sexual encounters going back more than 10 years.

I'm not going to rehash all the nitty gritty details of the case here. For that, I will recommend watching Diana Davison's videos on the Ghomeshi trial, where she lays it all out for everyone to see. The problems with the case, the problems with the complainants, the problems with media coverage, the problems with the Crown's apparent new policy to #ListenandBelieve rather than thoroughly vet complaints of sexual assault.

I was watching live coverage by Global News Toronto this morning of the verdict, where they had a legal expert discussing the case and the live tweets emerging from the courtroom as the judge read his decision. Unlike in the Gregory Alan Elliott case, the judge in this case made everyone wait until his entire decision was read before declaring his verdict of not guilty on all counts. Because of this, there was plenty of ACTUAL discussion of the legal issues at hand, rather than bloviating on how the verdict might impact survivors of sexual assault.

The crux of the matter before the judge, in the absence of Ghomeshi presenting any affirmative defence (that is, Ghomeshi's counsel at no point said, "here's what REALLY happened", or even "here's what MIGHT have really happened") was the credibility of the complainants. This was not a prosecution based on "he said she said". He, being Ghomeshi, and his counsel, said nothing at all about what happened. It was constructed entirely on the basis of "she said"...

And what "she said" on the stand and to police and the Crown involved a lot of lying under oath. Like, a LOT of lying under oath.

The complainants were exposed as perjurers by defence counsel, and it was demonstrated that two of them were involved in months of collusion before and after their complaints to police were filed.

In a case where he offered no defence of himself, these complainants still managed to sabotage their own cases through their repeated and extensive lying outright, lying by omission and improper collusion with each other.

These women were hoist with their own petards. He offered no affirmative defence, no alternate account of events that conflicted with theirs, no evidence in his defence. All he had to do was let them destroy their own credibility as witnesses. And they could not have done a better job if they'd tried.

I have no idea whether Ghomeshi is actually guilty of what they claim he did. I DO know that the verdict was entirely proper. Any other verdict in light of the evidence would be a miscarriage of justice. As the judge said in his decision, every criminal case MUST begin with the presumption of innocence, and it must end with either certainty of what is true and what is not beyond a reasonable doubt, or a not guilty verdict. How can a judge decide that any witness is telling the truth about anything when they are shown to have repeatedly lied under oath? About relevant details?

The appropriate feminist hashtag for this trial should not be #IBelieveSurvivors, but #IBelieveLiars.

One thing the legal expert for Global News Toronto said on their livestream of the verdict was that victim advocates, while they will undoubtedly be upset about this verdict, should learn a lesson from this. They need to learn what actually goes on in a courtroom, and how the criminal law actually works. And they absolutely do need to do that.

If they spent more time figuring out how the law works and why it works the way it does, and less time bitching about how difficult that makes things for victims, maybe more victims would win their cases.

If the three complainants in this case had disclosed their interactions with Ghomeshi after the assaults, rather than lying about them, their credibility--what the entire case hinged on, in the opinion of the judge--might not have been demolished so exquisitely and systematically on the stand.

As I tweeted earlier today, something I rarely do: I don't know if Ghomeshi is guilty or not. I DO know that the complainants were all perjurers.

I am not willing to send someone to prison on the basis of the testimony of three individuals who are willing to repeatedly and persistently lie under oath. I'm sorry, but I'm just not.

So if there's one lesson a victim advocate could learn from this case, it's probably this: tell your victim that lying to police, prosecutors and the court about details relevant to her case is the most dumbfuck and counterproductive thing she could possibly do.

It is not the job of the court to decide what might have happened, or even what probably happened. It is the job of the court, based on values expressed in the Magna Carta that exist to curtail the ability of the state to become an agent of oppression, to prove beyond any reasonable doubt that the accused is guilty of the crime.

Stop telling victims that they should not be expected to prove their cases. Stop bitching that the rules, which have already been reformed beyond recognition, are still unfair and should be changed even more. Just learn what they are, and learn to live with them. Give victims sound legal advice, rather than a feminism-inspired pity party.

I will repeat. The presumption of innocence and due process of law exist not to allow rapists to get away with it. They don't even exist to keep any given innocent person out of prison. They exist primarily to prevent the state from becoming an agent of oppression. They exist to curtail the power of governments to persecute their citizens--all their citizens.

This necessarily means that some rapists will get away with it, just like some car thieves will, and some murderers will, and some child abusers will. But it also means that we are smart enough to hold our governments to a higher standard of fairness and justice than we do our rapists, car thieves, murderers and child abusers, because our governments have greater power and wherewithal to do harm to us than any one criminal does.

Stop fucking bitching and just do your jobs. Stop "reforming the system" and reform instead how you do your jobs. You'd probably find you win more cases.





22 comments:

  1. This needs to have a far wider audience than it will get here.

    Bravo, Ms. Straughan.

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  2. Good on you! It's time people stood up and faced facts. If you're going to accuse someone of something, you have to be able to reasonably prove it.

    Ps, rough sex is not illegal, and as the courts saw, the women all went back for more. Sounds like extortiin

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    1. Exact even if events were exactly as these women said they were, none of it is sexual assault. In fact most of the accusations did invovle sex at all, only consentual making out, the making out they admit was consentual, with a rough twist.

      So many people freaking out think Ghomeshi raped someone, but he was never accused of raping or even having intercourse with any of their vaginas. Only one invovled oral sex. For a sex assault trial its oddly sex free.

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    2. I am not so sure I agree with that. But if I grant it, it would reinforce my original impression: that, under pressure of recent campaigns, the police and the prosecution are simply shifting responsibility to the justice system rather than doing their due diligence. How in the world can the prosecution fail to vet further contact with the accused after the incident? How in the world can they not expect the defense to ask those questions?

      For the sake of democracy, justice, and my own sanity, I hope that the accounts I have read have been widely exaggerated. I am going to bed now.

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    3. Given the fact that it is being portrayed as yet another reason to erode due process in rape trials who says they wanted due diligence in the first place.

      I know tin-foil hat time but i do not trust these people and they have made being a professional victim into a art form.

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    4. 1) implement "listen and believe" investigatory guidelines that prevent proper vetting of claims
      2) wait for claims to fail in court
      3) leading to an inevitable increase in prosecutions and a decrease in convictions
      4) argue that the conviction rate is decreasing and problem is the trial process itself, rather than lax investigatory standards
      5) demand "listen and believe" be expanded to the trial process
      *feminist victory dance!

      Delete
    5. There is at least one thing from moving quickly through steps 1-5 ... lawyers for men can make money $$$ defending the presumption of innocence.

      Delete
  3. Good on you! It's time people stood up and faced facts. If you're going to accuse someone of something, you have to be able to reasonably prove it.

    Ps, rough sex is not illegal, and as the courts saw, the women all went back for more. Sounds like extortiin

    ReplyDelete
  4. "If they three lie, then he must free fly!!"

    In Memory of the inimitable Johnny Chocran, RIP.

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  5. Although I have no sympathy for the accused in this case, I am amazed this case even went to trial the way it did. Could it really be true that the prosecution went so far in its verve to believe victims that it did not even check the basics and prepare for such a basic defense strategy? The upshot is, quite probably, a freed rapist. Not because of misogyny, but because everyone was trying to hard to do the right thing.

    In the articles I read, many bemoan the inherent power imbalance in favor of famous, well-heeled people like the accused. That may be true, though I balk at the comparison between counsels for the accuser and the defense (the prosecution IS the counsel for the accuser). But here the issue is not an overstaffed defense, but a policy of believing that backfired big time.

    Finally, I am amazed at how these kinds of cases can get such publicity. I am convinced that the vast majority of rapes go unreported (yes, in particular if the victims were non-traditional), and I am convinced there are miscarriages of justice in both directions. But this is not a proof of a problem in either direction. The guy is innocent. Or the prosecution screwed up. Or both. But the system worked the way it should. Perhaps we should be something akin to happy about that.

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  7. The plaintiffs should all be charged with perjury. Who would have to initiate that charge? Why do you think it hasn't already been issued?

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