Wednesday 30 March 2016

Yes, Take it out on the Judge

Neil Macdonald, wrote a piece for CBC News entitled "You don't like the Ghomeshi verdict, fine, but don't take it out on the judge." I had been avoiding what I presumed would be the despair-inducing coverage of this verdict, but because I think Macdonald is a very sharp commentator, I read his piece.

By all accounts Judge Horkins is a good judge, and in a way I don't doubt that. I think that the majority of judges would have given the same rulings on the same set of facts. It's the wrong ruling, it's misogynist, it's stupid, but it's the ruling our legal system is set up to give.

I read the ruling, and on the facts contained within it I would have returned a verdict of guilty. Three human beings were in a court room saying another human being had assaulted them. The only defense offered was to point out that those three accusers each had inconsistencies in their stories. Not that they were inconsistent about being assaulted, but that they had poor recall of some of the surrounding events.

If I were assaulted while coming home from the grocery store and the only defense offered was that I couldn't remember if I had bought milk or not, the bewildered judge would probably spend a paragraph mocking the defense attorney in his ruling.

If I were sexually assaulted while coming home from the grocery store and the only defense offered was that I couldn't remember if I had bought milk or not, that would be an acquittal.

It honestly doesn't go much deeper than that. Yes, the women intentionally withheld details from the police. If the prosecutor intentionally withheld details from the defense then I'd say that's a mistrial and the prosecutor should be charged. In Horkins' ruling, the job of prosecuting Ghomeshi is shifted to the victims from the Crown. That is the norm for sexual assault.

Where is the reasoning, though, that a person who intentionally withholds intimate details about a relationship is therefore unreliable about whether or not they have been choked?

Here is the crown jewel of Horkin's ruling:
[60] It is difficult for me to believe that someone who was choked as part of a sexual assault, would considering kissing sessions with the assailant both before and after the assault no worth mentioning when reporting the matter to the police. I can understand being reluctant to mention it, but I do not understand her thinking it was not relevant.
Under Canadian law you cannot consent to being choked. Not as part of sexual activity or otherwise. It is, therefore, absolutely irrelevant whether or not you kissed someone before or after or during being choked. The Crown could prosecute a choking case in which the victim insisted he or she was a happy and willing participant.

When Horkins says he can't understand thinking it was not relevant, he is saying it is relevant, and as a judge he knows it is not. When he is thinking of a sexual assault, case, though, he compartmentalizes that knowledge. He couldn't take the cognitive dissonance between his two conflicting ideas he holds: 1) that choking is a criminal act regardless of circumstances; and 2) that women who are sexually assaulted have a duty to tell us all the lurid details of their sex lives. Idea (2) won that fight. Tell me again the ruling isn't misogynist, Neil.

These victims of assault did not trust the justice system, and with good reason. The fact that they did not trust the justice system was used as an excuse to acquit Ghomeshi.

But like I said, most judges would have given the same ruling. When the defense produced notes and letters the prosecutors didn't have, they didn't joke amongst themselves, "What are these morons doing - whether she was wearing hair extensions isn't relevant to the case". Instead they became angry they had been lied to because they knew that a failure of a victim to remember whether or not she was wearing hair extensions was fatal to the case.

The only silver lining in all of this is that Horkins, and many other equally competent judges, will be dead or retired by the time my children are adults.

Friday 4 March 2016

Political Correctness

I recently read an excellent comment on Donald Trump. To paraphrase, "This isn't a hostile takeover, this is the future the Republicans have chosen for themselves." Obviously a lot of people in positions of significant power in the Republican party feel differently, but the reality is that Trump is more of a logical extension of what they've been doing for a few decades than a new direction.

So last night I was thinking about what it was that made Donald Trump so objectionable to the Republican leadership. Really, there is just one thing: he isn't politically correct.

Now, ordinarily, not being politically correct is something you think that left-wing people get mad at right-wing people for, but in that moment, it occurred to me that "political correctness" is an entirely right-wing phenomenon. It is discussed, defined and enforced by the right-wing on itself, with a rhetorical attempt to blame the left-wing.

When I talk about people with disabilities, I call them "people with disabilities" because they are people with disabilities. When I talk about Aboriginal Canadians I call them "Aboriginal Canadians" because they are Aboriginal Canadians. When I talk about a trans woman I use "she" rather than "he" because she is a woman, not a man. I am not being politically correct, I am just using accurate words to say what I mean.

But for a lot of people out there saying "she" instead of "he" to refer to a woman who was incorrectly gendered as a man by most people for a large part of her life is something you do to avoid getting into trouble. It's something you do despite the fact that if it were up to you you'd put your personal preference for what word to use above your respect and compassion for other people. It's something you do to avoid seeming as insensitive as you are.

So I'm not politically correct, I'm just correct. Donald Trump is not politically correct, he's just incorrect. Marco Rubio is politically correct. Rather than saying that Obama is trying to change America, he'd probably rather just wonder aloud how it was white people let a black man become the president. He doesn't because he sees it as politically inappropriate to do so. Political correctness. It's a phenomenon created by and enforced by the people who complain about.