[Feb 9, 2016. Some thoughts on the Ghomeshi trial, as the third complainant’s testimony and examination is completed, and as we wait for Judge Horkins to rule on admissibility of a fourth witness]
We knew that the complainants alleging assault and other charges against Jian Ghomeshi would face severe, rigorous questioning intended to discredit their testimony, from highly credentialed and skilled lawyer Marie Henein. As a dear friend and one-time courts reporter has pointed out to me, society needs this to happen. We want a defense lawyer to be vigilant and ardent; a person’s liberty is at stake. We don’t want to live in a society where a state lawyer does not have to prove beyond a shadow of a doubt that an accused should be convicted.
However there is questioning to discredit testimony and there is “whacking”. The latter is a nefarious tactic which occurs almost exclusively in sexual assault cases. It depends on aggressive, verbal accusations, double-negatives and sexist stereotypes. The goal is to confuse and intimidate a witness so that what they say isn’t what they mean or want to say. There are many who are questioning the ethics of this tactic, noting that it is something that, like torture, fails to provide actual truths. Whacking also depends on the legal system’s assumptions that linear, chronological testimonies can be elicited from participants in traumatic events and that such ‘clear’ testimonies are more credible. Therefore, if a witness’ verbal re-telling of a traumatic event can be deconstructed, it is likely false, or exaggerated. This expectation is based on false assumptions rather than research evidence about how traumatic memory actually works and how women often react during assault. It depends on negative stereotypes about women and victims of sexual assault in particular.
So, to recap, whacking is a courtroom tactic of intimidation particularly popular in defense of sexual assault, which is intended to discredit a witnesses’ and complainant’s testimony.
Ghomeshi’s lawyer, the brilliant and fearless Marie Henein, is renowned for her whacking skill. In the Ghomeshi case however, I think Henein’s intention is to do more than just discredit the testimony through intimidation. There seem to be three key legal points that the case hinges on (I’m not a lawyer, but this is what I understand from reading the criminal code, and various pundits and researchers): First, was the violence consensual, from the beginning and during; second, is there a pattern, i.e.: ‘similar facts’ that can be permitted to weigh in a verdict; third, were the ‘serious harm’ actions really severe enough to be the kind of harms our criminal code says we cannot actually give consent to? I think what lawyer Henien’s strategy is a five-part smoke and mirror trick designed to address these three points of law, and one point of judicial hubris:
1) She is trying to imply that Lucy Decoutere and the two other complainants gave on-going consent, that they welcomed and therefore participated in the hitting, choking, hair-pulling, etc. This is intended to distract the judge from the point that there is no evidence of prior consent in the first instances.
2) She is trying to prevent the judge (and public) from recognizing and believing the complicated psychology of how the brain reacts to and processes trauma, including how women post-assault may seek approval from the aggressor or try to remediate a sense of their unacceptable ‘victimhood’ by choosing ‘participanthood’ post-hoc. This does not gainsay the fact that prior and/or on-going consent had to have been given, and that failure to deny consent is not the same as giving consent.
3) Significantly, Henien seems to be trying to elide the point that Canadian law doesn’t actually permit us to consent to serious harm.
4) She is also trying to circumvent the ‘celebrity as authority figure’ factor that Ghomeshi represented for the complainants: the fact that he was a highly regarded personality with influence in the media-arts-entertainment industry and the women were in early-career stages with aspirations in that business meant that Ghomeshi’s actions were extra compelling, in both his potential and effect as a perpetrator. He had the glamour (in the old Celtic sense of disguising evil with beauty). I wonder if Monica Lewinsky might not have something to say about the complicated emotions that happen when one thinks of one’s idol as a friend, or even romantic partner?
5) More speculatively however, and this is where the mirrors become truly smokey, I think Henien is playing a long head-game with Judge Horkins. I think she is trying to trade on the rather fuzzy boundaries as to what actually consists of consentable sexual violence, and to push the judge into fearing making a ruling that establishes a new precedent, but could be overturned on appeal. Judges hate having rulings overturned and Henein is trying to make the judge concerned about his own legacy.
In the latter (5), I suspect Henien could succeed, simply because Ghomeshi and his past ‘intimate partners’ do not seem to me to be credible as exemplars of a BDSM community. So if Judge Horkins makes the ruling that Ghomeshi is guiltyon the grounds that Lucy Decoutere could not give Ghomeshi permission to choke her as part of sexual ‘play’, I would expect that ruling could be contested, simply because there are very likely members of the BDSM community who could make the legal argument that choking can be legally consentable; orgasm via temporary asphyxiation, for example.
In the former (1 – 4), While Henien seems to be going for a determination of on-going consent to ‘rough sex’, I suspect that she could fail, simply on points of law – no judge can fail to note lack of evidence of initial consent, implied or otherwise, permissible or otherwise, and because there is similar fact evidence that Henien has not successfully contested
As yet.
As I write this, Henein has begun trying to discredit the ‘similar fact’ evidence; complainant 3 and 2 have been shown to have shared their stories, as women, and victims often tend to do as a part of processing a trauma. But in the eyes of the law, that story-comparing leaves Henein scope for the argument that the 3 women colluded in their testimony, thus devaluing the strength of ‘similar facts’ evidence.
At this point, as I see it, it comes down to two things: Is Judge Horkins susceptible to Henein’s smoke and mirrors? and does Crown Attorney Gallagher have some Windex up his sleeve?
Some links very much worth reading:
re: Traumatic Memory & Sexual Assault
https://storify.com/empathywarrior/to-understand-the-ghomeshi-trial-we-also-need-to-u
http://nij.gov/multimedia/presenter/presenter-campbell/pages/presenter-campbell-transcript.aspx
http://time.com/3625414/rape-trauma-brain-memory/
http://www.cbc.ca/news/technology/trauma-brain-memory-neuroscience-1.3431059
Re: Giving testimony as a sexual assault complainant:
http://canadalandshow.com/article/when-your-friend-stand-ghomeshi-trial
re: Marie Henein
re: Whacking
http://www.winnipegfreepress.com/opinion/columnists/whacking-the-complainant-367563261.html
re: Canadian Criminal Code, and Consent to Harm
http://laws-lois.justice.gc.ca/eng/acts/C-46/page-63.html#docCont
Ethnographer | Ecographer 
As the “smoke and mirrors” of Jian Ghomeshi’s defence passes, we’re seeing relevant and clear-headed legal analyses: “Reflections on Week One of the Ghomeshi Trial”
“All of the attention on the fact that the first two complainants in the Ghomeshi trial had contact and communications with him after the alleged incidents is therefore misplaced, should not be seen as relevant to whether they are believable or whether they consented to the alleged sexual assault, and might usefully be contextualized by expert evidence so that rationales contrary to the rape shield provisions are not imputed to their behaviour.”
More @ http://ablawg.ca/2016/02/08/reflections-on-week-one-of-the-ghomeshi-trial
One problem however is that the complainants didn’t truly forget – they selectively omitted subject matter that didn’t further their narrative. The third victim, who was not supposed to be in court listening to testimony, nor on social media, obviously KNEW that the issues of memory were going to rain down on her too, which is why she asked for the meeting with police to fess up that she had masturbated Ghomeshi. Henein didn’t really need to do much other than sit back and allow all of them to perjure themselves.
The bottom line is that they gave inaccurate or false testimony to the police and to the court. These women all had a chance to provide credible testimony against creepy Ghomeshi and instead chose to sandbag police and prosecutors, making 11th-hour revelations and leading the criminal justice system about by the nose.
You make a good point. I think what it speaks to is the fact that in these kinds of criminal cases, the complainants don’t actually have their own lawyer advising them, preparing them, unless they pay for themselves. In other words the Crown is not acting for the complainants, s/he is acting for
the state. The problem of this system, the structure of how sexual assault cases are brought into the legal system, means that victims bringing complaints may not get the best advice at the best time. They’re probably getting information the way most people get information from their peers.