Monday, 4 April 2016

Possible Collusion

The more I read of the ruling in Jian Ghomeshi's recent trial the more there is to angry about. I am still of the opinion that Judge Horkins ruled the way the majority of judges would have in his seat, but I am less and less capable of blaming it all on a system of judges-each-alike and more and more pissed off with Horkins himself.

There is a section of the ruling titled "Possible Collusion," reproduced here with my annotations:
[107] S.D. said that her decision to come forward was inspired by others coming forward in 2014. She consumed the media reports and spoke to others for about six weeks after the “Ghomeshi Scandal” broke in the media. Although she initially testified that she and Ms. DeCoutere never discussed the details of her experience prior to her police interview, in cross-examination she admitted that in fact she had.
Saying one thing and then admitting something else tends to harm ones credibility, which is assessed elsewhere in the ruling. Let's recall this is in a section called "Possible Collusion" and so what is said here should be relevant to the possibility of collusion. Thus, I take it to mean that Horkins is saying that S.D. talking to DeCoutere before coming forward is somehow evidence of collusion when we already know by her own admission she was inspired to come forward by the stories of others.
[108] I am alert to the danger that some of this outside influence and information may have been imported into her own admittedly imprecise recollection of her experience with Mr. Ghomeshi.
Memory is a tricky thing, and psychological experiments have shown that false memories are awfully easy to acquire under the right conditions. Being aware that people misremember things is probably a good idea if you are a judge. On the other hand, I'd hazard to say that while details, times and dates get fuzzy, it is a rare person who sees someone in the news and suddenly misremembers that person sexually assaulting them. That aside, we remember once again that this is in a section on possible collusion, and so presumably it is being mentioned in relation to collusion, making the "imprecise recollection" thing a bit odd to begin with. Collusion is about intentionally working together with someone, not getting details of a hazy recollection wrong.
[109] The extreme dedication to bringing down Mr. Ghomeshi is evidenced vividly in the email correspondence between S.D. and Ms. DeCoutere. Between October 29, 2014 and September 2015, S.D. and Ms. DeCoutere exchanged approximately 5,000 messages. While this anger and this animus may simply reflect the legitimate feelings of victims of abuse, it also raises the need for the Court to proceed with caution. Ms. DeCoutere and S.D. considered themselves to be a “team” and the goal was to bring down Mr. Ghomeshi.
Let's try to follow the reasoning here. It makes sense for victims of assault to be very angry at the person who assaulted them, but if two victims of assault share their feelings of anger, that is also evidence that the Court needs to "proceed with caution." When identifying a risk, it is usually wise to answer the question "A risk of what?" One might proceed with caution along an icy ledge to avoid slipping. Here Horkins thinks he should proceed with caution, and the outcome of a failure to do so is left to the imagination of the reader.
[110] The team bond between Ms. DeCoutere and S.D. was strong. They discussed witnesses, court dates and meetings with the prosecution. They described their partnership as being “insta sisters”. They shared a publicist. They initially shared the same lawyer. They spoke of together building a “Jenga Tower” against Mr. Ghomeshi. They expressed their top priority in the crude vernacular that they sometimes employed, to “sink the prick,… ‘cause he’s a fucking piece of shit.”
DeCourtere and S.D. became friends. They really wanted Ghomeshi to be found guilty. We are still talking about collusion here, right? This section is legally contentless, and appears to exist only to lay out facts for future reference.

What is collusion? Here's the definition that pops up when you google the word:
secret or illegal cooperation or conspiracy, especially in order to cheat or deceive others. 
While we can quibble of the definition, I don't think we are going to get away from the fact that collusion is a negative word, it is a word about culpability. People who have colluded have done something wrong. If there is the possibility of collusion, there is the possibility that DeCoutere and S.D. did something wrong in the way they dealt with one another. What was this cooperation or conspiracy, how did it deceive or cheat others?

We'll never know. That is the end of the section entitled "Possible Collusion" and the word "collusion" does not appear again in the ruling. Those facts laid out in section 110 are never referred back to. Nor is there any further discussion about the relationship between S.D. and DeCoutere, and DeCoutere is not mentioned even one more time in the ruling from section 111 on. Since he never again mentions collusion or DeCoutere, he also does not refer back to this collusion in his conclusion. These sections basically just hang there on their own with no information from what came before and no effect on what came after.

These four sections are a judicial drive-by smear. Under the title "Possible Collusion" Horkins' reference to S.D. coming forward only after talking to DeCoutere seems to be there to imply that maybe S.D. made the whole thing up at DeCoutere's urging. His reference to "imprecise memory" sounds like DeCoutere intentionally implanted false memories in S.D.'s head. His reference to them being angry is a motive for conspiring against Ghomeshi and his reference to them feeling like a team and - heavens to Betsy - using foul language, is evidence that they were up to something unscrupulous.

If Horkins had any real reason to think that DeCoutere and S.D. had worked together to concoct a story and lie to the court he could have stated that reason. If he really believed they did these things he could have at least had the courage to say so instead of implying it with a title of "Possible Collusion" and then never actually saying how they colluded.

As written, the "Possible Collusion" section could have read:
[107] While I'm not saying Ms. DeCoutere and S.D. did conspire to cook up fake stories of Ghomeshi assaulting them, I find it curious that in their testimony they never denied doing so.
That's an argument equally worthy of the one that Horkins took four paragraphs to make. This fits in with our cultural narrative about sexual assault. There is a woman waiting around every corner to make false allegations against men. Never mind that false allegations of sexual assault are less common than false reports of car theft. Never mind that you are more likely to be acquitted having been charged with sexual assault than with another violent crime. Never mind that in reality you are more likely to be hit by lightning than to end up in court having had multiple women conspire against you to charge you with sexual assault.

Lastly, in legal writing is customary to italicize Latin phrases and words that have legal meanings like mens rea or de facto. Horkins italicizes the word "animus" both of the times he uses it in his ruling. But he isn't using the Latin word "animus" or a legal term "animus". He's just using the English word, "animus" which means anger or hatred especially with an intent to act upon it. What a moron.

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