//Due Process and Jian Ghomeshi

Due Process and Jian Ghomeshi

Due process is a concept I wish I could believe in. By definition due process is “the legal requirement that the state must respect all of the legal rights that are owed to a person.” For Jian Ghomeshi’s story I think it’s safe to say due process has to do with his right to be “presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.”

So we should assume Jiam Ghomeshi is innocent until he has had his day in court. Not only that, at least going by the reaction to this story, we should all just shut up and wait until someone goes to the police because, as we all know, if there’s no charges the women are all lying. All eight of them. Until then, let support for Jian echo down from the hallowed halls of Parliament right after a terrorist attack along with demands we wait until charges are laid, due process takes it’s course, and wonder aloud whatever happened to innocent until proven guilty.

You see this is Canada, and in Canada trial by the media is hardly due process.

Due process. The very saying leaves us thinking about courts, lawyers, police officers, and forensic CSI-type people walking around with little flashlights picking up hairs and getting to the bottom of what happened. Holding criminals responsible and giving victims a sense of justice.

I wonder if the people who believe that bullshit are paying attention at all.

You see, when it comes to sexual violence due process means something else all together. It means something ugly, broken, and so horrifically dysfunctional nine out of ten victims don’t even bother calling the police and nine out of ten who do are left wishing they hadn’t. Due process for victims of sex crimes means doubting detectives, hostile lawyers, and a court process that leaves nearly every victim who comes forward feeling like they’ve been assaulted all over again – even if the case is won.

Community Activist Sandy Garossino recently published a list of questions the women in this case could expect to be asked if they went to the police. Read it over and ask yourself how you would feel being asked how much did you drink, let’s talk about your drug use, are you seeing a psychiatrist, why is there a photo of you partying on Facebook, do you have any piercings or tattoos, this wasn’t your first experience with rough sex was it, why didn’t you take this to the police immediately, and are you trying to get money out of this man?

Publisher Jill Amery was the victim of a break and enter and violent sexual assault in Toronto in 1997. During the trial (thanks to DNA), the defence “tried to spin it that I had picked up this man in a bar in order to make my boyfriend jealous.” Her boyfriend later broke up with her.

That’s the beginning and the reality of due process in Canada when it comes to sexual violence. It shouldn’t surprise anyone that the women in the Ghomeshi story choose to remain anonymous. Who can blame them for not trusting the system enough to say anything to anyone other than a freelance journalist and only if they could remain unnamed. Going by the support Ghomeshi’s received it was probably a smart move. Damned if you do, damned if you don’t.

National Post columnist Christie Blatchford writes that Jian Ghomeshi is “another man vilified by anonymous accusers in the press”. Vilified by anonymous accusers! Seriously?

It was a little over a year ago when the same columnist vilified Rehtaeh Parsons in the press based on nothing more than some selective files from a source close to the case and desperate to change the conversation. Does it not occur to Blatchford that young victims might have read that article and, irony of ironies, she’s the reason stories like this play out the way they do?

It wasn’t lost on me either how Rehtaeh’s mother Leah was condemned by Blatchford for taking to social media to get the story told yet when Ghomeshi did the very same thing it was only because the poor man was “desperate.” Not even the parents of sexual assault victims are safe from the “blame the perpetrator never” crowd.

To be clear, women remaining anonymous did not vilify Jian Ghomeshi. A system that repeatedly and openly condemns victims to a life of silence is why this story broke the way it did. It’s also why there will probably never be a complaint filed with the police by any of the women involved. Why would they bother? The system’s a joke.

Green Party Leader Elizabeth May posted the often repeated inquiry, “So why no police charges?” and adds insult to injury with, “In past I know of allegations (unproven) destroying lives. I’d like to have a sense of fairness.

Ah yes, we all want a sense of fairness. But lets be honest, what these women would have faced if they went to the police would have been a nightmare. They would have faced accusations instead of belief, torment instead of compassion, and an endless dialogue of excuses disguised as justice. I guarantee none of them would have felt a sense of fairness. I don’t think I’ve ever heard of a victim who has.

If victims are going to get justice within Canada’s current system it’s obvious we have a long way to go. Until then it shouldn’t surprise us if they take another route. These women did the only thing they felt they could – they publically exposed someone who abused them.

I hope they find a sense of justice in knowing they sent out a warning to other women not to be alone with Ghomeshi and in that, they may have saved someone else a lot – possibly a lifetime’s worth – of pain and grief.

What they did took courage.

This story broke with four women. This morning as I write this the number is up to eight, including the very much loved ‘Trailer Park Boys’ actress Lucy DeCoutere.

How high does the number have to go before we’re able see the stinking rot through all the blinding smoke and roses? Why are we so willing to let this system stay the way it is? Why do words like ‘due process’ and ‘innocent until proven guilty’ sting so much?

Why aren’t we fixing this?

2016-10-21T21:43:12+00:00 October 30th, 2014|Categories: Sexual Assault|Tags: , , , , , |12 Comments

12 Comments

  1. jonathan himsworth November 1, 2014 at 1:09 am

    This is the safest comments section on the subject I have been able to find.
    Excellent piece.

    Elizabeth May has blamed her original gaffe on the upset that occurred earlier in Ottawa.

    Leaders that stay clear-headed during times of outrage (such as the Parliament shooting) so as not to say blood-boilingly flippant comments (to those who know victims of unreported rape let alone the victims themselves) and then underline them, with further updates (so as to be *not* an off-the-cuff one-off/in-camera miscue) are the kind of leaders who ought not to resign for such blunders, at such poignant moments of National uncertainty.

    Thank you for your clarity. This post leads the way.

    Particular mention to the deconstruction of the term “Lynch Mob” and it’s insensitive use in the public conversation.

    If you put yourself about as a Public Figure, it is optics that keep you on stage, and optics that haul you off.

    There are two scenes here splitting up the view.

    The Public Figure –annihilated mercilessly to ribbons to the glee of those who care in that matter.

    And The Private Soul, who by now has a trial going on in his own conscience that might be more viscious than any hyperbolic “Lynch Mob” represented by the collective gasp that comes from any crowd of spectators seeing an Public Figure “actually” break a leg.

    Our gasp is real, bit it is more carbon dioxide than anything physically harmful compared to the biggest fb share in the world that had people we thought we knew better rush to his defense. He froze the Anglo Canadian workforce and split them in two for a week. (Here in QC I’ve not met a young francophone who knew who he was)

    As for the private legal entity called JG, well for sure that is still open to question. And yes, that is what courts do well, answer questions of earth shattering importance without physical violence.

    Mob? Hahaha. Nuh-uh.

    JG. This is what the ancients might call “Civilization.” And he’s thoroughly protected by us, in and of ourselves by it.

  2. numbers October 31, 2014 at 7:12 pm

    Here’s the thing that nobody seems to understand. Innocent until proven guilty is from the perspective of the law, a legal perspective. He is of course innocent until proven guilty in the legal sense. Public opinion doesn’t work the way the legal system works, and that’s why in the “court of public opinion” he is essentially being cast guilty. The reason for this is fairly simple and is actually easy to simplify the numbers for those who are not mathematically inclined.

    The basis for the reason resides in the fact that, statistically, between 2% and 8% of reported sexual assaults are misrepresentations of the truth. So yea, a single disgruntled ex making up a story to tarnish his reputation is unlikely but not improbable. A second woman reporting similar experiences (and basically corroborating the first report) is then statistically and mathematically very unlikely (we multiply the probabilities). Let’s just assume the most favourable statistical conditions for Mr. Ghomeshi, 8% (or 0.08). So now we have two women, the statistical likelihood of two women lying about being sexually assaulted is 0.08 x 0.08 = 0.0064 (or 0.54%). So you can see we’re already in dangerously unlikely territory. Now consider that there are not two women with analogous stories, but rather 8 (as of the last time I read an update on this story). Well the statistical likelihood of 8 women lying about this is roughly 0.08 to the power of 8, this result is an extremely small number: 0.000000167%. This probability is almost at the likelihood of winning the 6/49 jackpot. In fact you are 10 times more likely to get struck by lightning sometime this year than the fact that these women all lying together independently.

  3. Ryan October 31, 2014 at 11:47 am

    To begin, I called my MP to speak directly about this issue. It is gravely concerning to me that justice is happening in media. I do not blame the victims for this, but the system as you suggest.

    But given that we agree there is a problem, the harder question is “what process is more ‘due.'” What’s the alternative? Innocent until proven guilty is ingrained in the constitution – is it possible or feasible to break this principle without setting the stage for mistrials? It seems that the public is impatient now and prevention is no longer the (only) solution. I also think the trust of police has gravely eroded in general. More women in law enforcement? Sensitivity training?

    I am not necessarily asking for you to answer, just mostly pondering what could be done out loud. It’s clear to me that the status quo is no longer feasible.

  4. Antigonishfree October 31, 2014 at 8:10 am

    Thank you for your insights. While I can’t defend Ghomeshi and understand reason for women not coming forward I’m not sure how system can be changed. In comments they speak of power imbalance with this being a perfect example. I agree wholeheartedly. As for the rules of evidence it is that way for a reason because when someone is accused of crime and goes before courts they are up against the combined power and resources of state. Even with this wrongfully accused are convicted in this country. It doesn’t happen often but it does. If this equation is changed then more Donald Marshall’s will end up behind bars.

  5. Brigid October 30, 2014 at 11:42 pm

    Dear Mr. Canning,

    Thank you for writing one of the most important articles in the slew that have been written recently about the Ghomeshi case. I find it deeply frustrating that so many people who have never been sexually assaulted have only vague ideas about what is entailed with coming forward. I also find it deeply disturbing how so many of these same people immediately jump to the defense of the accused with no thought for the survivors of the alleged abuse. Even people I initially believed to be sensible, intelligent, well educated individuals have proven their ignorance to me in the last week. It’s so disappointing and difficult to accept.

    But people like you who turn their suffering into understanding and healing in the wisest and most wholesome ways possible make this world bearable. You’re my hero and I can only imagine how proud your daughter would be to see you now.

  6. CJ October 30, 2014 at 8:33 pm

    Its not a lynch mob and there is no one getting a rope. The most I’ve seen is expressions of anger and engaging in emotionally charged debate with the odd moron posting something extreme. Is it a lynch mob when people go online and vent their anger about a politician? A brand they dislike? A sports team or figure? Even the woman accusing him are not a part of any lynch mob. Not even close.

    No, it what this is, is freedom of speech. Ms Blatchford is dead wrong on her claims of a “lynch mob”, a term she has flippantly and thoughtlessly used in the past. This case actually illustrates one of the most important things about that freedom and right and that is the outting of immoral and/or illegal acts. While this can often have legal consequences, from charges to defamation lawsuits, there is no reason it has to. These can certainly have financial effects and not be illegal. Some examples are easy to point to: an ex-boss gives you a bad reference, you leave a negative review on the internet for a restaurant or other business or product and an employee blows the whistle on bad but not illegal practices where he works. These can cost the party accused millions of dollars and be 100% legal.

    As the case stands currently, a civil defamation case against the women who have come forward would fail miserably and no prosecutor in the country would consider a case of criminal defamation, either. With nine witnesses at this point with claims counter to Ghomeshi’s and possibly digital evidence, any action against the women could simply meet the threshold of a strong likelihood of conviction.

    Two enormous facts those who cry lynchmob, “Innocent until proven guilty” or that the women are themselves are guilty of illegal acts against Ghomeshi have completely missed. They too, are innocent until proven guilty and that this whole $#!%storm was started by Ghomeshi himself with what is now clearly a pre-emptive exploitation of his influence to discredit claims against him and intimidate the women I find it not to believe at this point.

    I am not a court of law. I am not bound by their methods and requirements nor should I be. I can’t do anything to Jian but I can sure a hell never buy, watch, read or listen to anything of his again.

    No imaginary ropes required.

    • CJ October 30, 2014 at 8:37 pm

      “any action against the women could simply meet the threshold of a strong likelihood of conviction.” should be “any action against the women could simply *not *meet the threshold of a strong likelihood of conviction.”

  7. Ron Marshak October 30, 2014 at 8:07 pm

    Great article. I hope a lot of people get to read it because it is vital to an understanding of what’s going on. Not only in this instance but for women in general when faced with violence or abuse. Why not get it published on one/all of the op-ed pages. It would really open some eyes. I will certainly share it. Thanks.

  8. lisa g. October 30, 2014 at 7:14 pm

    thank you for writing such a thoughtful, and truthful piece on the process of reporting sexual assault to authorities. it should not be like this in today’s world, but it is. things need to change.

  9. Hassel Aviles October 30, 2014 at 4:33 pm

    This is a very interesting article & I appreciate you posting this. You make some valid points that I feel are truly missing in the media coverage. Thank you for taking the time to write this & I will make sure to share it.

  10. Michael October 30, 2014 at 10:32 am

    Excellent article, Mr. Canning. As a legal researcher, one of the major obstacles I face when teaching my students about the problems of concepts such as due process is that their supposed “neutrality” is often more like “blindness” to the imbalanced power relationships in any given context. Thank you for your insightful words.

    • Glen Canning October 30, 2014 at 3:05 pm

      Thanks for commenting Mike.

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