When I first heard that CBC television personality Jian Ghomeshi had been found not guilty on all sexual assault-related charges, I assumed that a significant push-back had been delivered to the feminist mantra that women do not lie about sexual assault and that strict cross-examination and analysis of their behavior amounts to an unjust re-victimization. Reading the judge's summation of the monumental inconsistencies, omissions, and fabrications in all of the complainants' testimony, I thought both that the verdict was correct and that it
dealt a sharp check to the intense feeling building against Ghomeshi and in favor of his self-proclaimed victims. It seemed that due process and the presumption of innocence had been emphatically upheld.
I was wrong.
As I re-read the judgement in this celebrated case, my elation dissipated. Perhaps my reaction says more about my non-legal mind than about the import of the judgement, but my impression of the argument set out by the judge is of a line of reasoning too obviously influenced by the 'believe the victim' narrative that has grown up around Ghomeshi's accusers. Although the judge did not automatically “believe the victim," his careful (excessive, in my opinion) deference to the feminist perspective and his avoidance of the question of consent in all the cases sets a terrible precedent.
Essentially, the judge found that because each of the women failed to tell the whole truth, none of them could be judged credible witnesses. But he left open the very strong possibility that women who behaved just as these women did could be considered credible so long as they did not withhold evidence.
The judge’s outline of the discrepancies in each of the accuser’s stories is striking. There is not one whose behavior was straightforward or whose story was without glaring instances of deception. Each woman remained in close touch with Ghomeshi after the alleged assaults, sending flirtatious emails, expressing a desire to see him again, and praising and complimenting him. The most well known complainant, Lucy DeCoutere, sent Ghomeshi flowers on the weekend after he supposedly abused her and became sexually involved with him again many months later. In what sense did she not consent to his sexual behavior? This seemingly central issue was never dealt with.
The judge’s comments on DeCoutere's behavior are notable for their circumspection: At one point, speaking of the decision by DeCoutere not to give the whole story of her relationship with Ghomeshi, he comments that “A natural assumption might be that what was actually stopping Ms. DeCoutere from sharing all of this undisclosed information was the fear that to some audiences this post-event socializing would reflect badly on her claims that this man had in fact assaulted her. Had she genuinely feared that this sort of thinking would unfairly undermine her credibility, that concern might have been an explanation worth giving careful consideration."
I find it bizarre that the judge admits that cuddling with the man who ostensibly assaulted her and going out of her way to try to see him again would have undermined DeCoutere's credibility with “some audiences,” but does not say whether he includes himself among that number of the unconvinced. Instead, he focuses on the fact that she withheld the information. The clear suggestion is that the behavior itself was not so undermining as the fact that the complainant did not disclose it (and offered an unconvincing reason for why she did not).
About the behavior itself, which various feminist experts have been busy telling us for weeks is entirely normal for women traumatized by sexual assault, the judge has markedly little to say. Perhaps he felt that he did not need to comment on it since the issue of withholding evidence was so clear. Considering the feminist insistence that no behavior on the part of an alleged victim can be seen to disqualify the victim-claim, perhaps the judge simply avoided commentary that he knew would provoke the ire of his critics-in-waiting.
This is not the way one hopes a judge to formulate his arguments. And in fact, the judge does not simply avoid commentary on the alleged victims' behavior: he goes out of his way to acknowledge and give deference to the feminist framework, writing as follows: “Sending thank you flowers to the man who had just choked you, may seem like odd behaviour. I acknowledge that this might be part of her effort, as she said, to normalize the situation. However, whether or not this behaviour should be considered unusual or not, this was very clearly relevant and material information in the context of a sexual assault allegation. The deliberate withholding of the information reflects very poorly on Ms. DeCoutere’s trustworthiness as a witness.”
He dodged that one. But surely it is highly germane to the case whether sending flowers to one's abuser “should be considered unusual or not”? Is the consideration of such behavior now off limits in sexual assault trials? Is consent no longer the fundamental issue?
Regarding the complainant L.R., who sent flirtatious emails to Ghomeshi over a year after her alleged assault by him, the judge makes a similarly deferential acknowledgement of the now widely-circulating feminist thesis that victim credibility cannot be judged by ordinary standards of behavior: “The expectation of how a victim of abuse will, or should, be expected to behave must not be assessed on the basis of stereotypical models. Having said that, I have no hesitation in saying that the behaviour of this complainant is, at the very least, odd.”
On the face of it, the judge's statement involves direct self-contradiction. If stereotypes, whatever these are (the judge doesn't define them), are to be given no credence, then on what basis does the judge find the complainant's behavior odd? Is the judge acknowledging that his own assessment is indeed based on stereotypes--and therefore irrelevant? If not on the basis of stereotypes--which I will define as generally applicable models of observed human behavior--then how can behavior be judged in a courtroom? The implication seems to be that the credibility of female sexual assault victims is to be judged according to elastic feminist formulae entirely different from that used for any other witnesses. And if so, the entire basis of law in cases of sexual assault seems set to be thrown out, such that nearly any woman who claims to have been sexually assaulted must be believed so long as she is not caught in any omissions or misrepresentations in her testimony.
What the judge seems unable to bring himself to say is what most sane women know in their hearts to be true. A lot of women seem to seek out men who treat them in ways that make them feel used and abused. A woman who continues to pursue such a man may indeed be in some sense a victim--of her own romantic delusions, perhaps, or of her attraction to power--but she is not, or should not be, legally entitled to have that man punished by law. The Ghomeshi case should be the occasion for some frank talk among women's groups about what it really means to be a sexually liberated woman, to take full responsibility for one's own sexual behavior. But it should not be the beginning of a renewed attack on legal standards for adjudicating sexual assault.
Sadly, the Ghomeshi ruling suggests that we are already there: that feminists have made judges so afraid of their fury that the judges are not willing to make common sense arguments about female behavior. And if that is true, then future judges who do not have Judge Horkins' escape clause--who cannot focus on misrepresentations in testimony--will feel compelled to convict, even in cases where women enthusiastically consented to the acts now declared assault. I hope I am wrong.