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.

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