• SETHICS 13.04.2016

    Before the Jian Ghomeshi trial, I criticized those who seemed willing to convict Ghomeshi in public without a fair trial. Now I am depressed to see how many people are still convicting him after a fair trial found him not guilty. In response, I offer this open letter to those confident adjudicators of justice, asking them to reconsider.

    Dear Believers:

    Outside the courtroom where former CBC host Jian Ghomeshi was acquitted of sexual assault and choking charges, you held up signs stating, “We believe Survivors,” and “Stop Victim Blaming.”  I understand that you are defenders of victims and justice and that you’re confident that both were failed in this instance. You are not alone. In my city of Vancouver, not long after the decision, a traffic-stopping march was organized to protest Ghomeshi’s freedom.

    You also have some support from your friends in the media. I’ve heard pundits on TV and radio lamenting the failure of our system in this case. While they haven’t said as directly as you have that Ghomeshi is guilty, I have heard many of them state that this verdict is a symptom of a system that is unfair to female victims.

    “Well you see those messages on the signs rights there…” said Riaz Meghji of City TV Vancouver’s Breakfast Television, referring to the protestors outside the Toronto courthouse. “The idea of stopping victim blaming, the idea that violence didn’t happen: these are powerful sentiments surrounding the conversation of sexual assault of what we’ve seen over the last few months of women having the courage to step up and tell their story.”

    Nevertheless, despite your confidence that justice failed in this case, I wonder if you’ve considered some unintended consequences of what you’re advocating.

    For instance, what do you have in mind when you instruct us to believe women?

    I can understand that if someone you care about were to tell you they’d been assaulted, then—unless you knew them to have an adversarial relationship with the truth—I think there is an appropriate social expectation for you to believe them.

    Presumption of truth-telling becomes trickier, though, for those in powerful roles such as  journalists, police officers, crown attorneys, and judges, who can significantly disrupt the lives of the people described in the untested “truth.”

    To avoid the catastrophe of innocent people being convicted of crimes they did not commit, Canada has a justice system in which there is burden of proof (beyond a reasonable doubt) required of the state before our society will agree to put a person in prison. There are various types of evidence that can help to build such a case, and certainly complainant testimony can contribute to that. However, since we know that people sometimes lie, distort, and even misremember, surely there must be a means of scrutinizing their testimony.

    If we were to follow your demand of automatically believing women we would have to put people in prison whenever women accused them.

    Are you sure that’s what you want?

    As Ghomeshi’s lawyer, Marie Henein, put it in an interview with CBC’s Peter Mansbridge:

    “It is pretty significant that in one of the highest profile cases… Where people expressed opinions not having heard a word of evidence. That you knew that you could walk into court and that there would be an impartial person that would decide on the evidence that is heard… That’s something that we should be incredibly proud of in this country… You can tweak the system. You can criticize the system in a knowledgeable way. And it does, it constantly gets re-calibrated as it should. But slam-dunk results? Guaranteed results? Presumptions? That’s not what a fair system is about.”

    Are you so certain that the burden of proof isn’t something special that protects us all from human rights violations that we have witnessed in other countries and other times?

    A neutral observer might assume I’m straw-manning you (i.e. representing the least persuasive interpretation of your argument instead of the most compelling), and that by “believe victims,” you just mean that, when we meet people who say they’re victims, for compassion’s sake, we should err on the side of believing them.

    However, the fact that you’ve maintained your loyalty to your “believe women” maxim even in this case is telling. Even, that is, in a case where all three witnesses were caught deceiving the courts in their testimonies, you still chant your faith-based slogans.

    In contrast, former crown prosecutor, Sandy Garossino, said on CKNW:

    “It’s not about, say, misremembering the make and model of the car; it’s about having the make and model of the car be part of your narrative… So then’s it’s about, well how truthful are you as a witness? Are you telling the truth? Because that’s not just a fuzzy memory, that’s actually an invented memory. And these kinds of problems were all through all of these witnesses’ testimonies. That same witness insisted that she had had no further contact with Ghomeshi. She insisted—she was swearing on a stack of bibles that she didn’t make any email contact with him… And then when confronted, ‘Well, here are your emails. You did reach out to him. You did try and contact him. And here’s your photo of yourself in a bikini.’ She just said, ‘Well I was just trying to trap him so I could confront him.’ Well that’s just not believable.”

    Yet, dear believer, you still insist that believing these women is a moral imperative.

    And again you’ve got some support from your friends in the media who believe in your “believe the victims” signs. Consider Global TV news anchor Chris Gailus in another interview on CKNW:

    “It just points to how heavy the burden of proof is on the crown. This was really all about judicial process and the legal system. It really is troubling no doubt for a lot of women who were in positions where they have been abused, but in this case, based on the legal system that we live with, there just wasn’t enough proof, and the judge simply didn’t believe to a great enough extent that the women were honest and sincere in how they reported what happened to them, so we’re left with a decision that is baffling to a lot of people.”

    Actually, Mr. Gailus, there was no proof that Ghomeshi committed the crime. Proof implies incontrovertible facts that demonstrate the guilt of the accused. We have no such evidence. All we have are statements made by people shown to have deceived the court within those very statements.

    As Garossino put it:

    “You can’t come to the court and mislead the court, and deceive the court, as the judge found that they did, and still be believed. I mean, the judge just couldn’t accept it, and I don’t know any criminal lawyers who would.”

    Even if a presumption of truth from female complainants were the best standard for acquiring justice, is there not a point at which a reasonable person should reverse those first assumptions?

    Please imagine for a moment that you were a jury member in this case. I ask you to reconsider the following three issues before deciding how you would decide.

    (1) My and your first inclination is likely to assume that, if three people are making similar but separate accusations, that any coincidence of obscure details is, in itself, evidence. (How likely is it that three people would have independently invented the same story unless there was a pattern of behaviour by the defendant?)

    However, my belief in the unlikeliness of coincidence was shaken when I learned that the three complainants did not come forward at the time of the alleged crimes, but waited until (A) after Ghomeshi was fired from his CBC job for bedroom behaviours that it deemed unacceptable (but admitted they had no evidence was illegal or nonconsensual), (B) one of the complainants then came to the media to make her accusation before going the police, and (C) similar alleged victims were then encouraged to come forward by both the police and the media (who called any such accusers “courageous”).

    So I know you still believe the women individually, but do you agree that the overlap in their testimony is no longer evidence itself? Apparently, in the legal system, the judge cannot consider what is called “similar fact” evidence as supporting evidence when there is information (beyond guilt) that could easily explain the similar facts. (Clearly, in this case, we can reasonably say that the first complainant’s statements to the media could explain the similarity in testimony from someone who might have heard those statements). Therefore, the judge was required by law to look at each of the charges independently, and not as evidence for each other.

    If that sounds wrong to you, please imagine that you were on trial for a crime. Would you think it was okay for coincidence to be counted as evidence when the coinciding testimony arose after one of the accusers made her case to the media? Before you answer, keep in mind that, in court, Ghomeshi’s lawyer was able to demonstrate that two of the accusers communicated with each other about their testimony in a long email exchange before they went to court.

    (2) It was shown in court, by their email exchanges, that after allegedly being assaulted by Ghomeshi on dates with him, the complainants maintained flirtatious contact with him.

    Now, I know that the “believe women” movement tells us that we cannot put any expectations on how women will behave after abuse. But before you yield to that contention, please consider that the allegation here is not that Ghomeshi was in ongoing abusive relationships with these women, who felt powerless to leave their shared home or didn’t want to lose access to their children. These women went on dates with Ghomeshi, where they were allegedly, and non-consensually assaulted, and then continued to seek his company. While their stories could be true, is it reasonable to think they’re likely true? Would you, as a jury member, be willing to send a man to prison for decades based on such testimony? Can you truly expect a judge to think it’s reasonable that, after going on a date with someone and being seriously assaulted, that—instead of going to the police—a person would continue to try to date their attacker?

    (If you’re interested in considering this argument in more detail, see Janice Fiamengo’s case against the reasonableness of such a belief.)

    (3) It was shown in court that all three complainants told significant and relevant falsehoods under oath. Among their lies was claiming to not have had further contact with Ghomeshi after the alleged assaults.

    So, taking into account that these complainants waited to make their accusations until after Ghomeshi was publicly humiliated, and two of them discussed their testimony with each other in advance, and all three hid (and lied about) the fact that they continued to try to date Ghomeshi after they were allegedly assaulted, do you think it’s appropriate to apply your “believe women” faith in this case?

    If so, then any suggestion that I am straw-manning must be put to rest: it really does sound like you’re arguing for a blank “believe victims” cheque.

    And, forgive me, but do you have any worry that your commitment to faith over evidence is analogous to witch trials of the past?

    If you (and your equally virtuous friends in the media) were not aware of the above facts of the case, then I can understand why you might have assumed that Ghomeshi was probably guilty. (I too have a bias towards thinking the police and the crown have good reasons for bringing people to court.) However, if you’re going to protest a verdict as unjust, surely you have a moral obligation to learn a little about the case first, and whether the judge might have had a reason not to trust the complainants.

    Admittedly, some of you have said you did follow the case, but you still say the trial was unfair because it turned into an interrogation of the complainants.

    Consider the argument of one of your allies in the Vancouver march who said:

    “I feel there was a series of events where women were being put on trial versus listened to. That it was never really Jian Ghomeshi’s trial. It was actually about the women. And I think that got flipped around in very manipulative and deceptive ways.”

    And one of your signs outside the courthouse expressed the point this way:

    “The harsh reality is that once a sexual assault survivor is put on trial and not the alleged perpetrator, the public can no longer expect the court to be a trusted source of justice.”

    I agree that it’s unfortunate that alleged victims’ claims have to be tested in court. I have no doubt that it’s a painful experience. But, for those of us who do think we need to prove guilt before putting someone in prison, can you suggest an alternative?

    Ghomeshi, in fact, is the one who was on trial (that is, he’s the only one in court who might have gone to prison for a couple decades if convicted). The prosecutor presented the best evidence it could find against him. There was no circumstantial and physical evidence available, so the trial consisted solely of the testimony of the complainants. Yes, we should listen to them, but do you not think we must also be allowed to examine the veracity of what is heard in court? Otherwise, once again, we are yielding to the notion that complainants, by definition, tell the truth. 

    CKNW talk-show host Lynda Steele asked, “I want to know, though, how did this become about the women? I mean wasn’t this supposed to be about what Jian Ghomeshi did or didn’t do?”

    Yes, the trial is about what he did or didn’t do, but again the only basis we have for thinking he did do something criminal comes from the testimony of the complainants. The judge’s only means of assessing whether Ghomeshi assaulted them is exclusively derived from whether the accusers could convince him that they were telling the truth. Therefore, the defence attorney’s use of their own emailed words to demonstrate their difficulty with honesty in these very matters, is not putting the complainants on trial: it is testing their reliability in this case (the very reliability that you’re asking the judge to take as unassailable).

    If such testimony-contradicting evidence weren’t allowed in Ghomeshi’s defence, then what would be?

    Even if your intuitions are to believe women, are you sure that’s what you want from an impartial justice system? Would you want that standard of “justice” applied to someone you cared about if they were accused by a woman of assault?

    If so, I admit that your faith is unshakeable. In honour of your unwavering belief, you are hereby given a lifetime pass from taking part in jury duty. Simply bring your “Believe Women” signs to court, and you will be excused.

    Sincerely,

    Seth McDonough

    Posted by SethBlog @ 1:59 PM

  • 8 Responses

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    • Tom Durrie Says:

      I’m with you on this one. I for one have complete faith in our justice system and the wisdom of our judges. Yes, there are those who want to see retributive punishments handed out liberally, a complete debasement of a time-honoured and effective system that treats all people equally. I know not everyone will agree with that last statement, but I have yet to see an individual case that would prove it untrue.
      Tom

    • SethBlog Says:

      Thanks Tom. Yes, is scares me how many people are so willing to dismantle a justice system that may not be perfect, but, in the history of civilization, is an impressive accomplishment that was hard earned by great thinkers before us.

    • V Says:

      Well said, Sether.

    • SethBlog Says:

      Thanks VMac!

    • Tarrin Says:

      Your urging to believers to place themselves in the position of an accused made me think of the Tom Wolfe quote:

      ” If a conservative is a liberal who’s been mugged, a liberal is a conservative who’s been arrested.”

      In Believe Women Land, what happens when the dispute is between two women? That must cause some cognitive dissonance.

    • SethBlog Says:

      Brilliant quote, thanks Tarrin. Alas, I don’t think the leaders of Team Believe Women are susceptible to cognitive dissonance. Instead, I believe their response to your thought example would be: “Why are you trying to pit women against women when we’re fighting to solve the serious issue of male violence against women?”

    • Natalie Anderson Says:

      “Believe no one!” We should write this on our heads, not our chests, to emphasize how we should be drawing conclusions in such cases.

    • SethBlog Says:

      Well put. Thanks Natalie. If only skepticism weren’t so reviled in today’s society.

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