Sandy Garossino, a former prosecutor, explains at the Huffington Post Canada how Jian Ghomeshi threw a wrench into his own defense by writing and publishing that Facebook post.
Normally in sexual assault trials, the accused doesn’t have to do anything and all the hassle falls on the complainant. The defense strategy is usually to batter the complainant’s credibility to death while the accused just looks on.
The Jian Ghomeshi trial will be very different.
Apart from the media notoriety and Ghomeshi’s status as a public figure, the most outstanding evidentiary feature of this case is his own widely disseminated statement on Facebook (now removed). This one act, seemingly taken in solitary desperation, radically re-set the trial dynamic by putting Ghomeshi’s own credibility and even his character on trial.
In light of multiple but very consistent versions of events from a variety of sources dating back many years, that Facebook statement is devastating.
While there will be many legal technicalities, the complainants’ evidence will be measured against Ghomeshi’s own publicly stated defence. That defence, almost lost in an effusion of highfalutin malarkey, amounts to a claim that his sexual relations were not merely consensual but unambiguously and consensually violent; any statements to the contrary are all lies and the fruit of embittered female collusion.
Assuming one or more of the complainants are described in the Facebook post, how is Henein now supposed to claim they drank too much to remember clearly or that the accused had a mistaken but honest belief in consent? Her client left virtually no room for any strategy but an all out attack on his accusers. Her problem is that she’s dangerously low on ammunition.
And Jian’s biggest problem is Lucy DeCoutere. A 43-year-old captain in the Royal Canadian Air Force and a public figure in her own right, Ms. DeCoutere came forward apparently out of a sense of civic duty. Her riveting account of being choked by Mr. Ghomeshi without warning on a date some 11 years ago will colour every other aspect of the trial.
But this is the exception. Normally – the targets of the abuse are out of luck.
And yet what’s become starkly clear in the allegations engulfing Jian Ghomeshi, the MPs in Ottawa, and Bill Cosby, is that our justice system, civil procedures, and even our press and media traditions are wholly inadequate for the issue of sexual offences and crimes.
Had Ghomeshi not posted his Facebook statement, the Toronto Star would never have published its story. Even when the Star went to print, it faced an overwhelming barrage of criticism that anonymous sources shouldn’t be permitted to besmirch a man’s reputation. The clear implication being that if women were not prepared to file police reports, they weren’t credible.
Also known around here as the Michael Nugent Doctrine: it’s the police or nothing; call the police or shut the fuck up.
Notice anything about the complainants who’ve surfaced in all these cases?
Most of them are white, and all of them (as far as I know) are middle class.
Yet millions of our weakest and most vulnerable (including children) are neither, and they live in daily fear of sexual violence from assailants who know society will never believe them.
That could be called the Priest Doctrine – they’ll never believe the targets, so help yourself and have a good time.