Monthly Archives: February 2016

#Ghomeshi week 1

#Ghomeshi week 1

the accused jodi fosterWhat I’ve found interesting in this past week of testimony at the Ghomeshi trial is his lawyer’s use of the ‘classic defence strategy’; eroding witness credibility, poking holes in testimony and making a witness contradict herself.

When I read that definition I see two things that are part of our ‘justice’ system that are unacceptable. Gaslighting and the rampant use of logical fallacies – which law students are taught to recognize – as part of cross-examination.

For those of you not familiar with the term gaslighting, it is emotional and mental abuse in which information is turned back on a person by making careful omissions or by presenting false information in a way that favours the abuser and makes a victim doubt her own sanity.

If we believe (and I certainly do) that the purpose of going to court is to find out some truth, then gaslighting does not compatible supporting that goal. We actually end up farther from the truth by allowing the ‘classic defense’ to distract us from evidence and facts.

Putting a person in a court room under cross-examination under enough stress that her higher functions begin to shut down does not mean she cannot function reliably in normal conditions situations. Drawing the conclusion that testimony is unreliable when we have allowed gaslighting to alter the witness’s ability to represent herself legitimizes the use of acknowledged logical fallacies. For instance:

Logical-Fallacies-loaded-question-620x384Loaded question: a question with a presumption built into it that can’t be answered without the appearance of guilt. Like the question: “I think you would agree with me that you weren’t doing particularly well, you weren’t making a lot of money?” Saying yes to that is like saying ‘guilty as charged’. Saying no sounds like a lie because the disparity in income levels automatically creates a ‘good’ income and a ‘not good’ income. Good and bad get attached to their relative incomes and success in life, and stick to the individual people as well.

beggingthequestionBegging the question: a circular argument that contains the conclusion in the premise. Like the question: “Are you prepared to admit you have lied under oath?”. The phrase ‘prepared to admit’ makes the lie a foregone conclusion. There is no way to answer without guilt. ‘No I am not prepared to admit’ is just as damning as ‘yes I am prepared to admit’ because the lie has been established in the question.

the fallacyThe fallacy fallacy: because a claim has been poorly articulated or an error made, the claim itself must be wrong. Like saying that because one part of a story was left out that then the rest of the story cannot be trusted. Women are conditioned to be coy and even to outright cover up their sexual histories. If she told the story but left out the part that she found the most difficult to articulate that doesn’t mean what she did manage to say was false.

geneticGenetic: the source of information determines whether the information is good or bad. If by using gaslighting we create the perception that the witness is emotional as opposed to rational, that taints how the information is perceieved. It shouldn’t. Facts do not become less factual when they are presented by someone who struggles to articulate a proof. When I say climate change is real it isn’t less true because I’m not a climate scientist. We should judge facts and information on their inherent value and not dismiss them based on our judgement of the messenger. ‘Good’ woman or ‘bad’ woman does not correlate to the fact of consent.

burdenBurden of proof: requiring disproof verus proof. This case rests completely on consent. The only person who actually knows whether there was consent is the person who would be giving that consent. A woman shouldn’t have to prove she didn’t consent beyond stating that as fact. Ghomeshi admits hitting women and defends himself by claiming that is was consentual ‘kink’. We cannot allow his defense to outweigh their right to be the expert witness on their own mind.

Some other common ‘classic defence’ techniques that are logically fallacious are:

Ambiguity: using double meaning to misrepresent.
Personal incredulity: because something is hard to believe it must be untrue.
Tu quoque: answer criticism with criticism.
Composition/division: assume that one part of something has to be applied to all parts of something; that the whole must apply to its parts.
Ad hominem: attack opponent’s character or traits in order to undermine their authority.
Slippery slope: if we let ‘A’ happen then ‘Z’ will happen, therefore ‘A’ should not happen. This the premise of the hideous expression “it is better for 100 guilty men to go free than 1 innocent man to be punished” I don’t feel one bit comforted that 100 guilty rapists walk the streets to allow one innocent man walk free, and I cannot see the connection between not convicting the guilty and convicting innocent. That isn’t an appeal to reasonable doubt, that’s letting technicalities substitute for good reasoning.
False cause: a real or presumed relationship between two things means one caused other. Because these women at one moment maybe did want to have sex with a man, that this was the reason he at another moment had sex with her – without taking into account whether the wish to have sex was current to that moment.
Straw man: exaggerating, misrepresenting an argument so it’s easier to frame your argument as rational.

I think we should work toward a court system that functions on higher levels on the hierarchy of argument. The ‘classic defence’ relies on ad hominem and responding to tone, the absolute lowest forms of argument. We can create structure to make the ‘classic defense’ history.

And finally, how about reconizing gaslighting that occurs even before we hit the court room? We constantly second guess and scrutinize the victim, but why not stop and recognize that they are being subjected to gaslighting?

Why keep in contact? Why reconnect? We need to admit how women are socialized and how it leaves them suseptible to gaslighting. Women are taught to doubt their own instincts. Witness stand gaslighting is simply reinforcing existing destructive cultural conditioning. It reinforces the subtle narrative that the woman did something or should have done something, and that women should look to themselves to find answers to what happens to them. Furthermore, while this is particularly strong in socialization for women, it is by no means unique to women. Even pop culture shows us victims who go back time and time again to abusive situations. Maintaining or reconnecting is an attempt to go back to the point where power was lost to change the dynamic going forward, and people do it because they have been convinced that they have the responsibility to make it right.

The letter written  by Lucy De Couture that said ‘You kicked my ass….’ and similar communications with Ghomeshi by the other victims demonstrate a desire to return to the scene of a crime and find meaning or a create a new narrative. It says ‘you took away my power and I want a do over with a chance to control what happened’. It says they are second guessing their right to have exercised their own will, but it doesn’t give us the right to second guess that right.

If the justice system makes testifying against a man who assaults her this stressful and this undermining to a woman’s self-esteem and faith in herself as a human being, then it is clearly not a justice system for women. This tells the victim that they are ultimately responsible for making what went wrong right, and that is exactly why women reconnect with abusers, and exactly why the bullied try appease their bully, and exactly why there is no justice.

We should not be questioning the choices of these women. We should be questioning the choices Jian Ghomeshi made, and the system that portrays his choices as a legitimate challenge these women’s right to be the last and only word on their own consent.

We can fix this.

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#Ghomeshi day 1

canadian-gavelWhen the Ghomeshi firing and accusations hit the fan a little over a year ago I said this trial would be interesting, and could spur some positive changes in our society and our justice system.

I am going to be blogging about what I see as the issues confronting women (and men) and the court system are when it comes to dealing with sexual assault, and highlighting what I think are some good quick fixes and what are some thorny problems we need to put real effort into mitigating. In these blog posts I will use ‘he’ for the accused and ‘she’ for the accuser because it is true for this case. It does not mean that I don’t understand that is not always the case.

THORNY PROBLEM #1:

First of all, there is no way I would remember details if I was one of these women. I can barely remember what year I got my dog, and I don’t remember my son’s first words and both of those ought to be happy memories. Some people just don’t recall details, they remember in emotion and emotion is fuzzy. But the fact that I don’t remember how old my son was when he first said mama doesn’t change the fact that he did, and the fact that I can’t remember what month I got my dog in doesn’t mean that I am not right in saying that I rescued her in 2005.

So this is a thorny problem. People’s memories are spotty at the best of times. At the worst of times people can block out trauma, making it harder to remember sharp details. That is different from being completely unreliable. We need to stop calling women’s memories of sexual assault into question because they cannot remember 100%. We need to find balance between acknowledging that trauma and fear affect our recall, and the need to find out the truth.

THORNY PROBLEM #2:

The woman was left on the stand while the judge left the room today; alone, facing Ghomeshi and the people in the court room. Frankly, if I were this woman I would be scared to the point of near hysteria. I don’t deal well with being cross-examined at the best of times. Who does? We don’t need to make it worse than it already is.

We can find a way to accommodate the defendant’s right to face his accuser and the accuser’s right to not feel the gaze of the person who hurt her. We do it with children, we shelter them from the people they accuse because we acknowledge their fear is real.

Discussing this tonight, my brilliant hubby suggested that the woman be in a separate room to testify via video so that the defendant can see her, but she does not have to see him. I countered that the defendant be removed from the room during testimony, and be allowed to watch on a monitor. Either way, women deserve to be shielded from the glare of the person who has already terrorized her.

QUICK FIX #1:

Apparently the defence lawyer referred to the woman on the stand today as  the ‘cater waiter’. Now, while that is not an overt slur, the act of not referring to someone by their name decreases their stature. It reminds me of a story about a trial in which the defence lawyer repeatedly called a female police officer ‘honey’ when she was testifying. She eventually refused to answer his questions. Either way, he won. One way he diminished her authority by calling her honey and not Constable, the other way he got be exasperated in his dealings with an angry woman.

This is a quick fix. There should be no referring to any person involved in a trial by anything other than their official name or title. Ms Smith… Dr  Smith… Constable Smith… but never honey. This kind of chicanery is the reason the world thinks defence lawyers have no moral compass.

Let’s close the subtle insult loophole. To make this stick there need to be real sanctions against lawyers who use this tactic because once it is done, particularly in front of a jury, there is no taking it back or undoing the damage.

QUICK FIX #2:

Apparently the defense lawyer brought up that the woman accusing Ghomeshi was not making a lot of money. This fact is completely unrelated to the accusation of sexual assault. Income and consent to sex/sexual violence are not even in the same universe. Not only should leading or suggestive questions be more rigorously challenged by the crown and judges, not only should there be more enforcement of the rules outlining the proper lines of questioning. There need to be serious and immediate repercussions for defence lawyers who use this tactic to shift focus.

We can, and should, keep defence lawyers who resort to tricks and misinformation out of our court rooms.

 

That’s it for today. I am hopeful that we as a society learn from this high-profile case. We certainly have the right political climate and the right leadership to do better going forward. Where there is a will, let there be a way.