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Canada's Legal System Could Fail Jian Ghomeshi's Accusers

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One of Jian Ghomeshi's sexual assault trials starts on Monday, but those expecting a conviction may very well be disappointed. While 15 women have come forward with allegations of sexual violence, four to the police, the cases of he said she, she, she, she, (and maybe even she, she, she, she, she, she, she, she, she, she, she) said could still very well end in an acquittal.

A second trial, for one charge of sexual assault, is scheduled for June.

Our country has some of the most progressive sex assault laws in the world, but those within the legal system often fail to properly implement them. Only one in four sexual assault cases leads to a conviction, while the rate for all other crimes is well over 90 per cent.

Victims are too often discredited by police, defence lawyers and judges who still buy into rape myths. As a result, only 10 per cent of survivors report their assaults.

Many of those within Canada's legal system view sex assault as a crime women should know how to avoid rather than one men should be punished for. Don't get drunk. Don't wear short skirts. Don't flirt with guys at bars and preferably spend the rest of your life inside, covered by a sheet.

Cross-examinations have been dubbed "whack the complainant" by legal experts because of how they aggressively re-victimize women. In 2011, a Toronto police officer told a law school that to prevent rape "women should avoid dressing like sluts." In 2014, a federal judge asked a sexual assault complainant "Why couldn't you just keep your knees together?"

Imagine asking a gunshot victim why they didn't dodge the bullet?

Often those most vulnerable to assault, such as sex workers and aboriginal women, are most affected by our biased system. But there really is no perfect complainant.

"Even for somebody who shows up in a bonnet and crinoline, it's still a tough case," says criminal lawyer Sue Chapman. "I tell my clients all the time that it's very much about how you perform. You are going to be angry, but you can't be too angry ... that's going to undermine your credibility."

Even though the law was changed in 1983 to make spousal sexual assault an offence (yes, before then it was perfectly fine to rape your wife) legal experts say the court system is still skeptical of married women, despite the fact that almost 20 per cent of sexual assaults are committed by a woman's intimate partner (that rate for aboriginal women is three times higher).

The reality is that many women in abusive relationships continue to see the men who abused them, whether out of fear, shame or self-blame. It often takes survivors years before they have the strength or mental clarity to speak with police.

Yet the legal system continues to hold the delusional view that rapists are primarily men who force themselves onto women in dark alleys. Police and lawyers expect women to physically resist sexual assault and report the attack immediately, with complete disregard for the nuances that come with knowing your assailant.

Starting Monday Ghomeshi's lawyer, Marie Henein, will try to eviscerate the women accusing her client.

Despite the fact that it seems Ghomeshi abused his celebrity to manipulate women, Henein will likely hone in on the fact that a few of the complainants went on dates and exchanged flirtatious text messages with the former CBC star before the alleged assaults.

She will probably paint them as scorned lovers, or ambitious young professionals so desperate for a piece of Ghomeshi's fame that they would invent being choked, punched and slapped if he didn't help advance their careers.

Even Lucy DeCoutere, who is an Air Force captain and a beloved Canadian actress, will presumably be attacked for going public with her story -- a story she waited to tell -- just to get attention.

Of course in criminal law there must be proof beyond a reasonable doubt for a conviction. Victims in any case should be subject to tough questions from police and the defence, but those questions should never suggest they are responsible for their own rape.

Canada's sexual assault laws will never be truly progressive until women are treated as alleged victims rather than as suspects.

*This column previously appeared in the Ottawa Citizen