03/29/2016 02:49 EDT | Updated 03/30/2017 05:12 EDT

Ghomeshi And The Legacy Of Rape Mythology

Mark Blinch / Reuters
Actress Lucy DeCoutere, a complainant in the case against former Canadian radio host Jian Ghomeshi, leaves the court after an Ontario judge found him not guilty on four sexual assault charges and one count of choking, in Toronto, March 24, 2016. REUTERS/Mark Blinch

Last week, Judge Horkins acquitted Jian Ghomeshi on three counts of sexual assault and one count of choking. He did so on the basis that each of the three complainants lacked credibility and that, therefore, their testimony was unable to prove the allegations beyond a reasonable doubt. As I have said elsewhere, the judgment was largely unsurprising. Along the way, though, Judge Horkins made a number of remarks that were eyebrow-raising, and they have attracted widespread criticism. Some of those criticisms have been rather too strident. But there is more than a kernel of truth in them, and I want to focus on that kernel here.

In the judgment, Judge Horkins observed that the first complainant, L.R., had "been exposed as a witness willing to withhold relevant information from the police, from the Crown and from the Court." He continued: "It is clear that she deliberately breached her oath to tell the truth." The second and third complainants hardly fared better. Lucy DeCoutere was said to be "careless with the truth." Judge Horkins found that she "consciously suppress[ed] relevant and material information" while under oath, and was "manipulative."

Meanwhile, S.D. was found to have made a "deliberate lie" and to have "actively suppress[ed]" the truth. Judge Horkins remarked: "S.D. was clearly 'playing chicken' with the justice system. She was prepared to tell half the truth for as long as she thought she might get away with it." In response to the suggestion that S.D. was unfamiliar with the process, and simply did not understand how to "navigate" it, Judge Horkins answered: "'Navigating' this sort of proceeding is really quite simple: tell the truth, the whole truth and nothing but the truth."

Needless to say, these are damning comments. Following the verdict, a number of commentators attacked the reasons of Judge Horkins as a sustained exercise in "victim-blaming." In a sense, of course, that is straightforwardly true: the complainants' testimony was regarded as insufficiently trustworthy to support a conviction precisely because, it appears, they attempted to manage the flow of information about their post-offence relationships with Ghomeshi.

It has become virtually common knowledge that the conduct and testimony of sexual assault complainants will be measured against a stereotype of the "ideal victim."

Judge Horkins didn't mince any words: the main problem was not that the complainants' conduct was inherently inconsistent with the claim that Ghomeshi assaulted them (though one passage in the opinion could be taken that way). Their credibility was undermined by the fact that they chose to withhold evidence from the police and the Crown, and had lied about their post-offence conduct while under questioning.

No one will ever know whether Ghomeshi would have been convicted had his accusers been more honest and candid. All we can say is that the Crown's case would have been far stronger. And many commentators, deeply sympathetic to the need to reform Canadian sexual assault law (again), nonetheless are prepared to accept that, given the extensive damage to the complainants' credibility, it was right and proper that Ghomeshi should be acquitted in this case.

If there is impatience with Judge Horkins' assessment of the three complainants, it surely lies in the fact that their behaviour was eminently understandable. It has become virtually common knowledge that the conduct and testimony of sexual assault complainants will be measured against a stereotype of the "ideal victim." Knowing that they will be judged in light of such "rape myths," it may seem sensible -- even obvious -- to a great many complainants that certain pieces of information should be managed so that they conform to the stereotype.

This may seem all the more acceptable if one proceeds on the basis that post-offence conduct, in the end, just doesn't matter. None of this justifies the decision not to be honest and forthcoming under oath. But it does, as I said, cast the complainants' conduct in an altogether more sympathetic light.

There is also something irritatingly one-sided about Judge Horkins' assessment, as though the criminal justice system itself is not implicated in these complainants' choices. It is all well and good to say that "navigating" the system is "simple" -- that all a complainant must do is "tell the truth, the whole truth, and nothing but the truth." Its apparent simplicity, though, lies in the expectation that victims will cede all autonomy and control over the process.

There is nothing unusual in that: criminal trials are, in the end, contests between the defendant and the state, not private disputes. But demanding that sexual assault complainants surrender control over a process that has done them few favours in the past may presuppose a degree of trust that has not yet been earned.

The upshot of Judge Horkins' opinion, for many onlookers, is this: either a complainant will be frank and forthcoming, and thereby take the risk that her behaviour will be found inconsistent with the trier-of-fact's "common sense" ideas of how victims of sexual assault act; or she will attempt to manage her image, and find her testimony rejected as dishonest and lacking in candour.

I hope that overstates the case, but the concern (and anger) is well-founded. It suggests that, for all the progress courts and judges have made in understanding the situation of sexual assault victims -- and there has been considerable progress -- we have yet to develop a satisfactory response to those who are suspicious of the criminal justice system and its generations-long legacy of stereotyping and rape mythology.

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