Tag Archives: justice

#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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Setting the Bar high

Last weekend, in the cold shadow of an anniversary of the dangers that exist because men scapegoat women, I did a quick google search for a story that hit the news in November. I was hoping for an update on what would become of Alberta provincial court judge Robin Camp, who asked a sexual assault victim why she didn’t keep her knees together.

Yes, even though it is 2015, some men still blame women for everything that happens to them.

Justice Robin Camp’s comments during the trial insinuated that proof of self-defense was necessary. His comments insinuated that proof of refusal (as opposed to consent) was the deciding factor. His comments make it clear that he doesn’t recognize neither the physical or psychological power imbalance between the victim and the assailant as factors. His comments make it clear he prefers to recognise a man’s right to claim he wasn’t adequately deterred, rather his responsibility to get consent. His comments perpetuate the outdated and dangerous narrative that it is a woman’s responsibility to justify her existence in a man’s world, and if things go wrong it is the woman’s fault. His comments reveal an attitude that is morally repugnant, and one that has been firmly disavowed by Canadian lawmakers.

Sexual assault hinges on one, and only one, thing. Consent. That’s it. Attempts to fight, actions taken to mitigate consequences, tactics used to deter potential assailants … all of these are utterly irrelevant and suggesting that they are is not only morally repugnant, they are legally inadmissible in a court of law. Why? Because the law recognises that the absence of any of those things is not a signal of consent, it is a signal of compliance. Compliance and consent are not synonyms, one does not infer the other. Consent must be given freely without fear, manipulation, coercion or threat.

Herein lies the problem with Justice Camp’s handling of a sexual assault trial. As a judge, he is the manifestation of Canadian law. It is his job to understand, interpret, and apply laws in keeping with the letter, the spirit and the intent of our social conscience. Judges must both demonstrate a thorough understanding of, and an unwavering willingness to correctly apply the law. A judge must embody justice.

Not only is it obvious that Justice Robin Camp’s world view is inconsistent with the Canadian social conscience, it is evident that in this case he erred in law. The defendant defends. The victim must only prove the crime happened, not that the crime could not have been prevented. Sex without consent is a crime. Sex without a struggle is not consent. These are not just vague ideas we bring up when bad things happen, they are concepts written into the law.

I understand this Justice Camp has been removed from all cases indefinitely and is expected to take gender sensitivity counselling. That sounds good.

But I think the ultimate outcome will have to be his permanent removal from the bench, because he has at best demonstrated an inability to understand the legal definition of consent, and at worst demonstrated a clear unwillingness to apply that legal definition. In Canada appeals are granted on errors of law. The fact that an appeal was granted indicates that the court of appeal also recognises that this judge erred in his interpretation and/or application of Canadian law. But that doesn’t go far enough. The system needs to recognise that he errs in attitude, and that his attitude makes him unable to embody the law. He can take remedial courses that could fill in knowledge gaps. At best it will teach him to avoid voicing his outdated and unacceptable views, but it won’t eliminate them.

I don’t know how the Canadian Judicial Council can overlook the magnitude of moral and legal error in this case when they are so directly conflict with proper application of Canadian law, and with the human dignity of half of Canada’s population.

Canada needs leaders to stand for the values we have written into our laws. We need leaders to spread and nurture the attitudes and ideas that underpin our laws or those attitudes have no hope of ever being universally adopted. We’ve made the legal progress, we lag behind in cultural progress. We need those at the forefront of our pursuit of justice and fairness to lead, not to lag. It is not enough for the court of appeal heard this case and do a better job of applying the law. We need to be sure we do right, right form the start. Removing Justice Camp from the bench is about setting the bar high for our justice and social leaders. If we can’t get justice in the courtroom, we will never get justice in the streets.

In light of the sheer magnitude of the progressive awakening in Canada this past year; the political tables upturned, the gender balance calibrated, the reconciliations untaken and the compassion renewed, what better way to keep the progress rolling than start the new year by making one more firm commitment to progressive Canadian values, and show Justice Camp and his outdated ideas to the door? If people ask us why we can say, because it’s 2016.