Commentary: Verdict did not acquit misconceptions

Following the Jian Ghomeshi acquittal, many commentators argued the criminal justice system simply isn’t the right tool for successfully convicting sexual assault cases.

But it goes deeper.

It is estimated that 90 per cent of sexual assaults go unreported. For the 10 per cent reported, the conviction rate is just one in four, which amounts to an overall success rate of 2.5 per cent. Compare this with the conviction rate for all other crimes – which is well over 90 per cent.

Additionally, the burden of proof in a criminal case is extremely high: one must be certain ‘beyond a reasonable doubt’ something occurred in order to convict. This was cited as one of the reasons for Ghomeshi’s acquittal. While there may have been reason to think he was probably or very likely guilty, this still would not have met the standard for a criminal conviction. This is why some people believe sexual assault cases have a better chance as civil suits, where one only needs to be 51 per cent sure something occurred.



In Judge William B. Horkins’ 26-page decision – not an easy 26 pages to get through – I found myself torn between two extreme stories: One story was about a charming and charismatic Ghomeshi who was unfairly accused by jilted ex-lovers who conspired against him. The other was about a sexually abusive Ghomeshi who used his charisma and moderate fame to take advantage of women and cause them harm.

But the problem with a criminal trial is both sides don’t get to win – there’s a winner and a loser. In this way, the criminal justice system is inherently adversarial. In the case of sexual assault, this antagonism seems intensified – a sexual assault survivor will be made to look wrong or foolish through cross-examination by the accused’s lawyer. For someone who has already been through the trauma of assault, such an episode would only be a re-traumatizing experience.

Ghomeshi did not have to testify in his trial (in criminal trials the accused is not obligated to do so). But as I read the judge’s decision, Ghomeshi’s absence was striking – the result was a very lopsided view of his relationships with these women. The respective testimonies of the complainants became the sole evidence in the case, which further complicated things. Their actions and reasons were heavily criticized and scrutinized. Effectively, they became the ones on trial. It was truly bizarre to read a case against the accused become one against the complainants and their perceived sincerity.

While Horkins did acknowledge the fallibility of memory and the difficulty of relying upon it for a criminal conviction, he made many assumptions with respect to how a sexual assault survivor would behave after an assault. For instance, the complainants did have contact – some of it even flirtatious – with Ghomeshi after the alleged assaults. What’s more, in some cases the complainants had downplayed the nature of their post-assault contact with Ghomeshi, claiming they hadn’t been interested in contacting him, or they had done so in order to confront Ghomeshi about his actions. Because of some of the inconsistencies in their testimonies, Horkins claimed the complainants were ultimately unreliable. This was a primary reason he wasn’t confident in the truthfulness of their accusations.

Again, it seems completely backwards – a trial about whether or not someone committed multiple assaults became a trial about whether or not the complainants were able to consistently recount events from 2002 and 2003. What’s more troubling, though, are the background assumptions about how a sexual assault survivor ‘should’ or ‘would’ behave, following an assault.

Sexual assault as an area of inquiry has only just begun to gain critical attention. Many of the background assumptions that led to Ghomeshi’s acquittal involved faulty notions we tend to hold about sexual assault.

For example, there are beliefs about how a sexual assault survivor would respond to being attacked: she would fight back; she would run away; etc. And certainly, this is sometimes the case. But in many cases, she might not. She might go along with it, or she might pretend to enjoy it. Later, when she reflects on the encounter, she might realize something wasn’t right.

We also have faulty beliefs about how a survivor would behave after an attack. For example, the assumption is she would avoid her attacker. More often than not, she may respond differently. If the person who assaulted her were a seemingly kind or charming person, she might see the attack as completely out-of-character and, therefore, not who this person ‘really’ is. She might think her attacker didn’t truly mean to harm her and might believe he was worthy of a second chance. In some cases, her assailant may be a person she can’t easily avoid.

And there are more misconceptions about sexual assault and the people who commit it. We might think of these people as strangers who wait in dark alleys ready to attack vulnerable women. And sometimes that happens. But more often, people who commit sexual assault are the people we know: friends, family members, co-workers and classmates. Even in the way we frame sexual assault statistics, we often refer to sexual assault like an unavoidable natural disaster: for instance, “1 in 4 women will be sexually assaulted in her lifetime” rather than, “1 in x number of men will sexually assault someone in his lifetime.”

The Ghomeshi verdict disappointed me – but not because I thought the justice system failed, or the judge was unfair. Rather, it disappointed me because it seemed to come from a place of misconception about sexual assault and how someone might react to it. And until we address these misinformed beliefs, any reform of the criminal justice system will not provide a comprehensive answer to a complicated problem.

Tracy de Boer is a PhD student in Philosophy at Western. She is passionate about the ways philosophy enables us to think about and improve our everyday lives.