Lessons from the Ghomeshi sexual assault trial

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Yesterday, after two years of scandal and legal proceedings, Jian Ghomeshi was acquitted on four counts of sexual assault and one count of overcoming resistance.

There are some important lessons in the judge’s ruling (you can read the full thing here). We’ve summarized the key ones here, for those who may someday have need of them.

Get your story straight

As soon as you can after an assault, write down what happened.  When you go to the police, bring your notes, and get your story complete and accurate in the first police report.

In a case with no physical or recorded evidence, the only thing the court has to go on is the testimony of the people who were there. A complainant who is seen to be reliable and consistent will usually prevail.

All three complainants in the Ghomeshi trial omitted critical elements from their recollections and made changes to their stories as the trial progressed. In several cases, they made sworn statements that were provably false (e.g. one talked about her impressions of the car Ghomeshi drove on their first date; it was later proven that Ghomeshi didn’t own that car until seven months later). This hurt their credibility in the judge’s eyes, to the point where Ghomeshi didn’t even have to testify in his own defence; the case against him fell apart from the contradictions in the complainants’ testimony.

To quote Justice William B. Horkins:

When a witness is comfortable with giving differing versions of the same event, it suggests a degree of carelessness with the truth that diminishes the general reliability of the witness.

Don’t try to go it alone

Once an assault has occurred, it’s time to get the police involved. There is no practical way to navigate the criminal justice system alone. The sworn statement you hash out with the first police officers who interview you after the assault is the most important piece of the Crown prosecutor’s puzzle; it needs to be complete and correct.

It’s undeniably true that there are some police officers who are less than helpful in sexual assault matters. This is unfortunate, but you won’t find the good ones until you try.

You want police and Crown prosecutors here, not reporters (no offence to our journalist friends intended). If you are a victim, the system expects you to follow the procedures set out for victims. Stirring up a media circus is a sure way to have your motives and credibility called into question.

Act quickly

The alleged assaults in the Ghomeshi case occurred more than a decade before they were brought to light and charges laid. Waiting many years to bring charges isn’t necessarily a problem. However, memories often become less accurate with time, and questions will be asked about the delay and about any inconsistencies that have crept in.

In the judge’s words:

The law is clear: there should be no presumptive adverse inference arising when a complainant in a sexual assault case fails to come forward at the time of the events.

The trouble is that it’s much harder to determine a clear, consistent and factual picture of events at a much-delayed date:

An inability to recall the sequence of such a traumatic event from over a decade ago is not very surprising and in most instances, it would be of little concern. However, what is troubling about this evidence is not the lack of clarity but, rather, the shifting of facts from one telling of the incident to the next.

Break off the relationship, if possible

Several of the complainants in the Ghomeshi case continued to express romantic and sexual interest in him after the alleged assault, emailing him and sending photos, but hid this fact from the court. In the judge’s words:

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. The factual inconsistencies in her evidence cause me to approach her evidence with great skepticism.

If an assault victim genuinely can’t break off the relationship, the court won’t hold that against her. Indeed:

Courts must guard against applying false stereotypes concerning the expected conduct of complainants.

However, if an alleged victim had the opportunity to sever ties and no reason not to do so, but kept in touch with her assailant anyway, the judge might consider that fact to be contradictory to her testimony – particularly if she claims to be fearful of the man, or presents a story of having broken things off when that was not in fact the case.

Don’t fret over irrelevancies

Sexual assault cases, at least in Canada, hinge on the facts of the incident. You think you have a “slutty” reputation? You still have just as much right to justice as someone with a “prudish” reputation.

Don’t be distracted by nonsense talk like “she was asking for it with that short skirt” or “well, what did you expect sending him sexy selfies,” which you will almost certainly hear at some point. Judges know full well that that has no bearing on the facts of the incident. Judges are also very aware that their assessment of your credibility as a witness must be based only on what is said and presented in the courtroom, not on hearsay or third-hand gossip.

Keep your cool

A court expects to hear “the truth, the whole truth, and nothing but the truth”. Don’t speculate, don’t make things up to fill gaps in your memory. When the defence lawyer is questioning you, trying to find flaws in your story, keep your cool and stick to the facts.

Sexual assault cases are all about credibility. There are usually only two people involved, there’s rarely any physical or recorded evidence, and it boils down to “he said, she said”. Your best shot at seeing justice in a sexual assault case is to keep your cool and tell the police and the judge a consistent, true story of what happened.

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