Tag Archives: #Ghomeshi

When one door closes: Ghomeshi

It’s been two weeks.

The trial and verdict in the Jian Ghomeshi sexual assault trial has come and gone. I find the reaction more subdued than the internet predicted it would be, and I feel more subdued than I thought I would be. That being said, the trial has changed the way I see Canada’s justice system. And it changed the way I pay attention to how our society treats sex, sexuality and women.

Two weeks ago I was keeping an eye on twitter as the verdict was read. A co-worker was not and asked me to tell her as soon as the verdict was known. I sent her a quick email, and seconds later heard her holler “He said that?” So I walked around the corner to her office, feeling quite sad, looked at her equally sad face and she said “I have a daughter.”

scales

Given how the trial rolled out I did not expect a guilty verdict. Given the current state of our laws a guilty verdict was not possible. Not because Jian Ghomeshi isn’t guilty, not because the woman are liars, not because what happened didn’t deserve a different outcome – because our laws are not written to give us the better outcome.

Our culture builds a case against the women before they even have a chance to make their case. That was confirmed when, at the end of his verdict, the judge said: “…need to be vigilant in avoiding the equally dangerous false assumption that sexual assault complainants are always truthful.” His equating trusting half of the human race to be experts on their own bodily integrity to the danger posed by rapists sent a chill down my spine.

innocent or guilty presumption of innocence until proven guilt as charged in a fair trial for crime suspect

We vociferously, adamantly and unwaveringly defend the idea that a person is innocent until proven guilty. Rightly so.

And yet, in the case of this completely unique crime, we do not with equal conviction defend the idea that a woman is honest unless proven otherwise.

That alone proves the system is biased against female victims of sexual assault, because we start from the assumption that women could lie, that trusting the woman is a threat to all men, and so we interpret normal human behaviors as reasonable doubt.

I read a Facebook story by a male ally in which he likened this to a wallet being stolen. It was a good analogy but I amend that narrative this way:

…I have an invisible wallet. It holds something I value. You can’t see it, but you can touch it, and you can damage it, and you can take it from me. Because it is invisible I can’t prove when you have done any of these things. I will rarely have evidence to support my accusation. It will often be my word against another’s. The damage done to me will be invisible to most people…

Why do we need to start from the premise that we believe women? Because with sexual assault it is all about believing that a woman has the right, and ability, and credibility as a human being to her own sexuality. No one else owns it. It isn’t a matter of property. It is a matter of controlling what happens to her own body, and having redress under the law when that inalienable right is infringed upon. It isn’t about cuts or bruises. It is about one human being violently usurping another human being’s right to self. The nature of the harm done by crime may be invisible to the eye, but the human toll of the crime must never be.   

lady justice6We need to re-examine our laws, and make some sounder judgments about what we have put on the scales of justice. We need to make some sound judgments about the weight of things that are difficult to quantify.

One in four women will experience sexual assault in her lifetime. One in four men will not commit that offense, and one in four men do not being accused of that offense. Crimes like this are perpetrated by a very, very small pool of men who re-offend as they get continue to away with their behavior. The risk to one in four women is significant. The risk to the many men is significant. For most men, the risk of being tarred with the same brush, being lumped in with those few men, is real.

By doing a better job of punishing the few criminals we are not only protecting women, we are protecting men from the criminals that hide among them and use them as a human shield for their behavior.

This is not making sex more complicated or risky, for the vast majority of men this will make sex easier and better. Same goes for women. Because when we stop confusing violence with healthy human sexuality, we all win.

This door has closed. But we must open a new door to discussion about how we can do better as a culture, and how our justice system can be made to better serve the best interests of all Canadians.

[read this, it’s interesting]

Advertisements

Waiting for #Ghomeshi

It has become clear to me that I am far more concerned about the Ghomeshi trial than most of the people I know. I can partly explain that by admitting my (thwarted) childhood ambition was to be a lawyer. I have always been fascinated by rules and by how people follow, or don’t follow, those rules.

I have also always been a woman. Which leads me to consider what being a woman means.

The difference between the way my grandmother had to live her life, the way my mother coped, the way I am living, and the way that young women today conduct themselves is striking. Some things have progressed, but some still lag. The reason for the lag is that so many of us are behaving the way we were raised to behave in the past, yet we’re all living together in this same moment in time. How  my grandmother, my mother, myself, and my niece would react to a scenario like what is alleged to have taken place between Jian Ghomeshi and his accusers could be very different.

We say women have all the right to say yes or no to sex, to make their own sexual choices. On paper they do. Off paper much of the current understanding and attitudes that come with those rights were not the understandings and attitudes in place when many of us were growing up. They’re not the rights and attitudes that inform our behavior subconsciously. How a woman copes and how she tries to make sense of being assaulted varies widely depending on her generation and her subconscious understanding of her rights.

As a culture as we’ve raised successive generations of women in progressive environments. These women will have less internal conflict when it comes to sexual assault. They’ll be confident that it was assault because they will have always been raised that they are their own master. They will be less likely to try and smooth things over afterwards and quicker to go to the police. They will have been raised to know since the man committed the crime, that they don’t have to fix anything and the law has an obligation to address the crime.

A huge part of our progress lies with men. The world is changing for them so rapidly.

Never before in human history have men been held so accountable for their behavior. Never before have men been expected to be as aware and as fair about sex as they are now. Sex is no longer only for and about men. The sexual ground has shifted beneath men’s feet in two generations.

For many, many men this shift makes little to no difference because they never felt like sex was something they were entitled to. For other men, there are some bad lessons to be unlearned.

Our culture needs several things.

We need women who feel completely comfortable with their sexuality, with having sex or not, with saying no and saying yes. We need men who step up their game and are completely comfortable with not putting their personal sexual urges on a pedestal, with owning their desire and being completely willing and respectful of the needs of their partners.

We need to stop seeing sex as a transaction between agressive male and passive female. We need to stop thinking women will lie because sexual arousal is not their natural state, and men will be tricked because men are in a constant state of sexual arousal. When women aren’t emberassed (read: shamed) by the details of their sexual behaviors, there will no longer be any reason for them to obscure what happend and not only will that make real life relationships happier, it will make these sort of trials much easier to sort out.

We need to see sex in the moment, and not as one domino in a long line of behaviors. Nothing leads up to sex for certain, and the outcome of sex is not predetermined. We have to take ownership and responsibility for what we are doing as we do it. Men must, and women must be allowed to do so.

No matter the outcome of the Jian Ghomeshi trial, there is no going back. A conversation has been started. Our culture is shifting. Our laws are adapting. As horrifying as this whole trial has been, I believe this is a very good time and place to be a woman because we are progressing.

ghomeshi

#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.

#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.