Some
have been saying that the crown failed in properly preparing the victims,
however I believe the crown failed from the foundation of their argument. In
closing arguments the prosecutor stated “To prove that an offense occurred, the Crown must
prove that there was: "Touching, the sexual nature of the conduct and the
absence of consent."”
From the
start of the argument the focus is wrong.
“Section
273.2 limits the scope of the defense of honest belief in consent to sexual
activity by providing that the defense is not available where the accused's
belief arose from the accused's self-induced intoxication, or where the
accused's belief arose from the accused's recklessness or willful blindness or
where the accused failed to take reasonable steps to ascertain whether the complainant
was consenting.”[1]
The law
states that someone must take reasonable steps to ascertain consent. In the
trial there appeared to be almost no discussion about what Ghomeshi did to
determine consent. The women were discredited primarily over reluctance/forgetting
to disclose post-assault interactions. In closing arguments, the defense was
tweeted as saying, “that the witness told police Ghomeshi used one hand when
choking her, yet in court said that he used two hands.” Does whether someone
used one or two hands choking them change the fact that they were choked? This
judge seems to have an unrealistically high standard for memory recall.
The
primary focus was not on what steps Ghomeshi took to determine consent. It’s
possible that due to positive post-assault interactions he believed that the
women did in fact consent, but the legal issue should ultimately be about Ghomeshi’s
behaviour and what he did or didn’t do to determine consent.
The
reason that this distinction is important is because you can’t prove the
absence of consent. The crown also pointed out that there's no need
to call an expert witness to explain why some women disclose alleged assaults
many years later, because case law already recognizes that trauma can affect
someone's actions. However, it would have been beneficial if they had an expert
on traumatic memories talk about how memories are encoded and recalled.
There’s
no tangible or measurable way to prove what someone felt internally, even the
judge acknowledged that genuine victims are known for having odd behaviour
(point 135 of his verdict). However in point 136 he states, “Each complainant
in this case engaged in conduct regarding Mr. Ghomeshi, after the fact, which
seems out of harmony with the assaultive behaviour ascribed to him.” This is
the exact behaviour that the prosecutor stated is normal for victims. It shows
that the prosecutor should have called an expert to explain their behaviour and
reluctance in bring it forward. The prosecutor should appeal based on bias by
the judge.
Food for
thought: The judge pointed to the fact that the accused does not need to give a
defense for his behaviour. However, maybe we must implement the Cosby approach
to sue abusers in civil court in order to force them into giving answer about
seeking consent, exposing them to the same questioning and memory recall that
is required of victims. And then after the evidence is out in the open, then
proceed to criminal trial. This would take the focus off of victim reactions
and place it on the behaviour of the one that did the harm. My husband stated
that if Ghomeshi were truly innocent then on hearing this verdict he would sue
the women for defamation and sue his former employer for his dismissal. I
highly doubt that he would want to bring out any evidence that would come out
if he attempted that.
