As Canadians and CBC listeners struggle to come to terms with the Jian Ghomeshi allegations, many are troubled or angry that his accusers didn't report their claims to the police for investigation. Unquestionably and unjustly, Mr Ghomeshi has been deprived of due process and the opportunity to face his accusers and make full answer and defence.
And Canadians have been deprived of an orderly resolution to a crisis of confidence in a beloved public figure.
And yet, as a former Crown prosecutor who's run many sexual assault trials, I'm not at all surprised that none of these young women reported their experiences (if they are true). Most members of the public, until they're in the situation themselves, don't understand the reluctance of women to report, and what they'll face if they do.
Trigger warning: This article contains information about violence which may be triggering to survivors.
Sample cross-examination questions
So to give you a flavour, the following are questions that complainants of a date-rape assault might typically face under cross-examination:
1. How much did you drink on the evening in question? Let's talk about your drug use. Did you take cocaine, marijuana, ecstasy? How much? Are you a frequent user of drugs and alcohol?
2. In fact you were very intoxicated by the time you and my client got back to his home, isn't that the case? I suggest that a lot of your memory of the events is very hazy due to your intoxication at the time, yes? Do you have a drug or alcohol problem?
3. Are you currently under the care of a psychiatrist? The court has released your medical and psychiatric records, so I'd just like to go through these notes your psychiatrist and doctor wrote about you.
4. Is this your Facebook page? Here are the photos of you posted by your friends. Here's one of you passed out at a party. There seems to be a theme here, wouldn't you say?
5. You sent quite a collection of nude photos to my client, didn't you? Here they all are, every one. You may have assumed that Snapchat photos really do disappear, but of course they don't. Do you wax or shave your pubic area? And this is primarily for enhancement of sexual pleasure for your partners, isn't that correct?
6. Can you read out what your tattoos say for the court? And piercings? How many do you have?
7. In fact you're a very experienced young woman, isn't that so? And this wasn't your first experience with rough sex, was it? You're no stranger to edgy sex, correct?
8. You didn't report this to the police immediately, did you? Nor do you have any photos of bruises or marks.
9. How much money do you make? Are you trying to get money out of my client?
Note that any defence counsel worth their salt will ask many or most of these questions irrespective of the evidence or the witness's answers or their veracity. In our society a young woman's credibility can be easily undermined simply by the constellation of circumstances that makes her a normal young woman.
Add celebrity and social media swarming attacks on women and the whole thing goes nuclear.
Sex assault trials are ugly
While sexual assault trials are often conducted with professionalism and decorum, there's no getting around the fact that these trials can be ugly, ugly things.
I have prosecuted trials (more than one) in which an intruder assaulted a woman sleeping in her bed. Even these victims were cross-examined about how much they'd had to drink, or the effect of prescription drugs they'd taken. Even these women faced questions about whether they consented (they each knew their assailant). One had a toddler asleep with her.
In another case a 16-year-old girl (whose identity had been closely guarded for two years) was under cross-examination about intimate and humiliating details when a school group on a field trip trooped into the courtroom to watch the trial. They were from her high school.
I've watched an eminent defence lawyer mock the morals of a young sex worker, beaten so mercilessly by his wealthy young client and friends that she had permanent metal plates and pins in the bones they broke. The proposal to the sentencing judge was to order a payment of money to the victim in lieu of jail time for such a promising young man from a good family. After all, it was said, the victim was a woman with a price. It was just a question of amount.
Even the serial killer Robert Pickton had a survivor whose case against him was dropped because the prosecutor didn't think she was a good witness.
Women know in their bones what the system has in store when they pick up the phone and call 911.
What kind of woman doesn't report?
So what kind of woman is reluctant to report sexual assault? Anyone who consumed drugs or alcohol before the incident, who was intoxicated; who flirted with, has a relationship with, knows, or has significantly lower status than the perpetrator.
Any woman who's had an abortion or messy divorce. Anyone who might be in a custody battle. Anyone with a sketchy social media history. Anyone who's sexted nude photos or has unorthodox sexual tastes.
Any sex worker. Anyone who initially consented to sex. Anyone with addiction issues. Anyone afraid of her assailant. Any First Nations woman. Anyone from a minority or immigrant community. Anyone who's been raped before and not been believed.
Anyone without a strong support network. Any woman who waits too long. Anyone who's seen a shrink, or been prescribed medication for mental or emotional conditions. Any woman who doesn't want her medical records or psychiatric history disclosed. Or who has family members and a community who could be hurt or shamed by disclosure or publicity. Anyone with a criminal record or who is on public assistance.
Any woman with a past. Any woman with a future she doesn't want derailed by the stress of reporting.
In short, the kind of woman who doesn't report a sexual attack is almost any normal rational woman.
Accuser's claim must be proven beyond any reasonable doubt
The searing indictment of our community and legal system is that it is utterly and completely normal for sexual assault victims not to report to police. We all know the standard in criminal law is very high. Every accused person is presumed innocent, a presumption that can only be displaced by unambiguous evidence that proves the charge beyond a reasonable doubt. The onus is on the victim (via the Crown) to provide that evidence.
In the absence of corroboration, this system itself essentially dictates the near impossibility of conviction in a simple he-said, she-said situation. This is virtually a certainty when the parties began by engaging with consensual sex.
And yet there is another purpose to public disclosure of these matters, beyond punishing Jian Ghomeshi. While there is some doubt about consent, there is also a legitimate concern about the violence. Striking a woman with a closed fist and choking her to near unconsciousness are dangerous activities and one indulging that "taste" surely bears a burden to be extremely scrupulous about consent. If these are indeed Ghomeshi's private desires, there is value in young women he may approach knowing it.
No one's interests served
In any event we have this gap, and no one's interests are served. Ghomeshi is denied his day in court. But so too are his accusers, because the playing field isn't level. Their burden of proof is far higher than his.
Imagine if the situation were reversed, and all the young women had to do to obtain the victory of an exonerating verdict was raise just a little doubt about Ghomeshi's account. More women would come forward, but it would violate every principle of criminal law.
We may never know what happened between Ghomeshi and the complainants, but what we shouldn't do is blame them for not calling the police.
Their tragedy, and Jian's, and ours, is that this was a completely normal thing to do.
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