Jian Ghomeshi, a former CBC radio host, was acquitted of sexual assault charges on Thursday. For rape survivors like myself, the decision from Canadian justice William M. Horkins was disturbingly familiar, namely in its common misunderstanding of how sexual assault survivors think and act. The decision failed to recognize that jumbled and fragmented memories are the brain’s way of coping with trauma.
Horkins may have used progressive language when he noted that “courts must guard against applying false stereotypes concerning the expected conduct of complainants [in sexual assault cases].” But his analysis of the evidence failed to acknowledge the reality of sexual assault recovery.
Sexual assault survivors are used to being discredited by defense attorneys, the media and society at large. I doubt anyone was shocked by the strategies used by Marie Henein, Ghomeshi’s attorney, during her cross-examination of the complainants, strategies commonly used by defense attorneys in cases of this kind. Henein sharply criticized the victims, picking apart their memories of small, inconsequential details until each one appeared unreliable and manipulative. Ghomeshi’s defense maintained that all the sex was consensual and that he was the “victim of a disgruntled ex-girlfriend,” according to the Associated Press.
“Your truth keeps changing,” Henein told one of the witnesses — who testified that Ghomeshi had pulled her hair and punched her – on day two of the trial.
As appalling as these strategies are, rape and sexual assault trials hinge on victim-blaming. Rather than focusing on Ghomeshi’s behavior, Horkins’s verdict picked up where Henein’s questioning left off.
Horkins focused on tiny discrepancies in the victim’s recollections as evidence they were unreliable witnesses. One wasn’t sure if she was wearing clip-on hair extensions at the time of the hair pulling in question. Another couldn’t remember exactly the order the alleged assault occurred: Did the slap come before the punch, or vice versa? Still a third was suspect for misremembering how Ghomeshi’s car fit into the timeline of events. Horkins paid lip-service to the lengthy passage of time since the incidents occurred, but he failed to acknowledge the gaps in memory that trauma survivors commonly experience.
Much of Horkins’s disbelief centered on the fact that each of the complainants had at least a few amicable interactions with Ghomeshi after the assaults occurred. This friendly behavior with Ghomeshi seemed “out of harmony with the assaultive behaviour ascribed to him,” Horkins’s decision read.
All of the women explained their behavior in their testimony. One said her friendly responses to Ghomeshi were her attempts to “normalize” his behavior. Another said she wasn’t sure how to feel about his seemingly out-of-the-blue violent and aggressive sexual acts. She liked Ghomeshi, and she had been interested in having a romantic relationship with him. Rather than accepting their explanations, Horkins appeared determined to cast the women as jilted lovers who were out for revenge. Because the women were single and had brief romantic relationships with Ghomeshi, he seemed particularly disinclined to take their claims seriously.
Contrary to what Horkins would have us believe, there is no such thing as the perfect rape or sexual assault victim. Despite popular misconceptions about sexual assault, 80 percent of sexual assault victims know their attackers. The vast majority of these attackers are friends or intimate partners, and women frequently engage in friendly or polite behavior with their attackers after they are assaulted. It’s normal for women to allow their rapists to drive them home after their rape or to agree to go out on another date with their attacker. This can lead law enforcement officials, prosecutors and even judges to assume they aren’t telling the truth about their sexual assaults.
Jodie Layne is an advocate for sexual assault survivors and a sex educator in Manitoba; she’s also a survivor of sexual assault. The morning after her rape, she sat beside her rapist on the bus to the ski resort where they both worked — and she maintained an amicable relationship with him for a few weeks afterward.
Layne characterized her delayed response as a coping strategy that gave her the time and space to process the trauma. “The people who attack and victimize people are also their friends, their partners, their crushes, their co-workers — there’s some relationship there and that doesn’t magically go away because something awful has happened,” she told me. “I didn’t want to believe that the dimple-cheeked man who waited to buy his lunch at my till in the cafeteria every day was capable of that.”
What is common knowledge among survivors and their advocates remains difficult for judges like Horkins to accept. This perception gap leaves women vulnerable in a legal system that’s already stacked against them. In Canada, it is estimated that only 6 percent of sexual assaults are reported to the police. “Date rape” sexual assaults are reported even less frequently, at an estimated 1 to 2 percent. When verdicts like Ghomeshi’s make the headlines, it’s not hard to figure out why that might be.
I didn’t report my rape. I had no desire to stand in front of a jury and talk about what happened to me at a high school sleepover. I scrubbed the semen from between my legs without thinking about rape kits or evidence, and I spent the next few years telling everyone I was fine, not fighting for justice.
If I went to the police today, I would be hard-pressed to give any statement, much less a reliable one. My memories are shadowy and vague, and they float away like cobwebs in the breeze when I try to latch onto them. Was there one man or a few? Did I fight back or say no? The only thing that’s etched deeply into my memory is the voice of my friend telling me not to make such a big deal about it. That’s the nature of the truth; it is imperfect and unpolished, and it is often less believable than a rapist’s lies.
In this case, Ghomeshi never took the stand. He didn’t have to retell his story over and over, and he wasn’t subject to cross-examination. Defendants have the right not to testify in their own defense, and no one will ever know how Ghomeshi’s story would have sounded to a judge. His acquittal hinged on discrediting his accusers, not proving himself innocent.
For survivors like Layne, the Ghomeshi verdict reinforced what she already feared. Women are often accused of lying when they opt against reporting their sexual assaults, but they are publicly and humiliatingly discredited when they do. “If the system can’t help women who are relatively privileged, if they didn’t have the resources to deal with this, how would anyone else? It’s devastating to think about,” she said.