When 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.