#Ghomeshi week 1
What 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:
Loaded 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.
Begging 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 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.
Genetic: 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.
Burden 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.