Having read the Ghomeshi verdict, and having seen so much outrage online about it, it seems that a lot of people don't understand the process of our courts and what the verdict reflects.
The verdict is actually quite clear on what the problem is: The inconsistencies in the testimony and facts of the case were sufficient to cast doubt on the overall picture being drawn. The judge was very clear about this in his finding that the crown case had not met the "reasonable doubt" standard. The court didn't say that these incidents didn't happen, that isn't what a "not guilty" verdict means. The court basically said that the evidence was insufficient to hold the accused criminally responsible, which is quite a different statement.
Remember, as the accused, Ghomeshi is in the position of "assumed innocent until proven guilty". It was not Ghomeshi's job to refute the allegations (as it might be in other judicial systems), it was the Crown's job to prove beyond a reasonable doubt that he was guilty. The Crown failed to do so.
Does this mean that Ghomeshi's accusers weren't subjected to abuse, or that he didn't do the things he is accused of? Not in the least. The fact of the matter is that these events are seldom the "innocent victim walking through a dark alley" moments that are portrayed in media. Human relations are complex and fraught with ambiguity. Human memory is even more troubling, with considerable evidence out there that our "objective" memory as witnesses and participants in events can be quite distorted.
There have been accusations that the accusers colluded with each other and attempted to hide evidence. I don't know if that was the case. All I can say is that when the defence cross-examination revealed significant inconsistencies in their stories that their credibility in the eyes of the court would have been diminished substantially.
So, where does that leave us? Ghomeshi's accusers are left in the unhappy position of feeling that justice has not been done, and perhaps it hasn't.
What it does raise in my mind are the following questions:
1) Is the standard of evidence for criminal court too high for these kinds of cases?
2) Is the process of the court system inherently re-traumatizing victims?
3) Does the current system adequately account for the consequences of trauma when weighing testimony?
4) Is criminal law too blunt an instrument for these cases?
5) Do we understand the psychological dynamics that take place around these kinds of events adequately?
All of these are legitimate questions to ask ourselves in the wake of the Ghomeshi verdict. I don't have absolute answers to any of them.
Perhaps we should consider how we handle the complexities of human rights matters, which we deal with first in the more flexible realm of a tribunal structure. Within these tribunals, the standards of evidence are quite different (as are the consequences they can mete out) from a court of law. Would a case like Ghomeshi's have a more satisfactory outcome in that world? I can only speculate. Given that so many sexual assaults occur in contexts like dates gone awry, or other environments where the standards in courts do not seem to allow room for the subtleties of social context, perhaps this is a place to begin.
However, as we know so well, sexuality is one of the most difficult areas of social interaction to deal with. There have been rape laws on the books since the earliest laws in human society. None of those laws has been perfect, none has ever erased this scourge from our world. What I propose here is to take a subject that the courts have failed to deal with adequately into a different realm. By all means, let us use the courts for the most severe of cases, where the available evidence can meet the standards of criminal law. For those cases where that standard cannot be met, we should use a more flexible and adaptable approach. If we are to learn anything from this sordid affair, let it be that we need to deal with some issues with more subtle instruments than that of criminal law.
The verdict is actually quite clear on what the problem is: The inconsistencies in the testimony and facts of the case were sufficient to cast doubt on the overall picture being drawn. The judge was very clear about this in his finding that the crown case had not met the "reasonable doubt" standard. The court didn't say that these incidents didn't happen, that isn't what a "not guilty" verdict means. The court basically said that the evidence was insufficient to hold the accused criminally responsible, which is quite a different statement.
Remember, as the accused, Ghomeshi is in the position of "assumed innocent until proven guilty". It was not Ghomeshi's job to refute the allegations (as it might be in other judicial systems), it was the Crown's job to prove beyond a reasonable doubt that he was guilty. The Crown failed to do so.
Does this mean that Ghomeshi's accusers weren't subjected to abuse, or that he didn't do the things he is accused of? Not in the least. The fact of the matter is that these events are seldom the "innocent victim walking through a dark alley" moments that are portrayed in media. Human relations are complex and fraught with ambiguity. Human memory is even more troubling, with considerable evidence out there that our "objective" memory as witnesses and participants in events can be quite distorted.
There have been accusations that the accusers colluded with each other and attempted to hide evidence. I don't know if that was the case. All I can say is that when the defence cross-examination revealed significant inconsistencies in their stories that their credibility in the eyes of the court would have been diminished substantially.
So, where does that leave us? Ghomeshi's accusers are left in the unhappy position of feeling that justice has not been done, and perhaps it hasn't.
What it does raise in my mind are the following questions:
1) Is the standard of evidence for criminal court too high for these kinds of cases?
2) Is the process of the court system inherently re-traumatizing victims?
3) Does the current system adequately account for the consequences of trauma when weighing testimony?
4) Is criminal law too blunt an instrument for these cases?
5) Do we understand the psychological dynamics that take place around these kinds of events adequately?
All of these are legitimate questions to ask ourselves in the wake of the Ghomeshi verdict. I don't have absolute answers to any of them.
Perhaps we should consider how we handle the complexities of human rights matters, which we deal with first in the more flexible realm of a tribunal structure. Within these tribunals, the standards of evidence are quite different (as are the consequences they can mete out) from a court of law. Would a case like Ghomeshi's have a more satisfactory outcome in that world? I can only speculate. Given that so many sexual assaults occur in contexts like dates gone awry, or other environments where the standards in courts do not seem to allow room for the subtleties of social context, perhaps this is a place to begin.
However, as we know so well, sexuality is one of the most difficult areas of social interaction to deal with. There have been rape laws on the books since the earliest laws in human society. None of those laws has been perfect, none has ever erased this scourge from our world. What I propose here is to take a subject that the courts have failed to deal with adequately into a different realm. By all means, let us use the courts for the most severe of cases, where the available evidence can meet the standards of criminal law. For those cases where that standard cannot be met, we should use a more flexible and adaptable approach. If we are to learn anything from this sordid affair, let it be that we need to deal with some issues with more subtle instruments than that of criminal law.
The second dimension of these cases is rooted in the social issues of just what constitutes consent. This is more of an issue of public education. The fact of the matter is that we still live in a male dominated culture, and for all that we have made strides towards equality, there is still enormous social power that comes with being male. We may never entirely erase what has come to be called "rape culture" in our society.
2 comments:
Another question might be whether an adversarial system is the best way to find the truth about guilt or innocence.
I'll bite on #1, 3, and 5 - that the standard is too high, and trauma and psychological dynamics aren't adequately understood by the system to actually have a fair trial at this point in the game. But I also agree we need a rethinking of the adversarial model.
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