Three Weeks On: How the Ghomeshi Decision Both Unites and Divides Us

It’s been three weeks now since, along with many of you, I followed the live Twitter feeds coming out of the Toronto courtroom where Mr Justice Horkins read his decision in the Ghomeshi case.

What we expected

Of course we were expecting acquittals. We knew that the failure to disclose information about subsequent contact between the complainants and Ghomeshi – as well as direct contact between two of the complainants – was going to bring the prosecution down, given the intense focus of our present criminal justice system on forensic detail – perfect recall, 100% consistency of information regardless of relevancy, and a requirement of full disclosure of anything at all that could possibly have such (legal) “relevance”.

(Do we ask someone whose house blew up 10 years ago what color socks they were wearing that day? And if they get the color wrong, do we say that this undermines their claim that their house blew up? Please.)

What we did not expect

But perhaps like you, what I was not expecting – and was shocked and upset by – was the extent to which Justice Horkins’ decision publicly disparaged and humiliated each of the three women complainants. Horkins J.’s unnecessary and offensive at-length personal commentary about the women crassly reinforces stereotypes of women as “hysterical and unbelievable” when they speak out about sexual violence.

This has been really hard

Let me say openly here that the three weeks since the decision came down have been incredibly hard – and I am sure for many of you reading this also.

Let me admit: for two weeks I couldn’t speak to anyone whom I thought might not share my disgust at the way the decision victimized the women. I found myself scurrying past the doors of my colleagues, tentatively standing on the fringes of social gatherings. I was scared of becoming angry, perhaps saying something in response to an innocent comment by a friend or colleague that might be harsh, or embarrassing, betraying the extent of my trauma at the decision and making myself vulnerable once again.

Let me also admit to bursting suddenly into tears of rage in embarrassing places (the grocery store, driving my car).

I slept – and slept – and slept. And I woke up each morning feeling exhausted – and furious all over again.

What unites us

The decision in Ghomeshi has united thousands of women and men across Canada who have experienced a sexual assault (Stats Canada estimates one in four women, 15% of boys under 16 and more than 80% of disabled women) by someone they know (80% of sexual assaults).

As we read how Justice Horkins talked about the complainants we were psychically united in our grief, anger, and sense of hopelessness. We collectively experienced re-traumatization in the aftermath of the decision.

Of course, that’s why it has been so hard. As my daughters would say: “Dur, Mum”.

What divides us

The Ghomeshi decision also divides us.

Of course the Internet trolls are out in force, dancing in glee at the come-uppance of the complainants, finding their misogynist agendas supported by judicial dicta now.

But I am most concerned about those who – thank goodness – have never experienced a violent sexual assault and are now struggling to make sense of the verdict and public reactions to it. They may be wondering just why so many people have such strong feelings about all this.

Of course, there are some easy, superficial responses here, and these may be especially tempting for students of the law. “Proof beyond a reasonable doubt” “burden of proof” “presumption of innocence” can all be trotted out, as we feel both relieved and proud that we can remember what we learned in Crim.

Another law school favourite: “the judge just did what he had to do”. And perhaps the most seductive rationalization for law students: “everyone deserves counsel and counsel must defend their client.”

Unfortunately, none of these responses addresses the operational reality of a criminal justice system that is completely out-of-touch with the lived experience of the survivors of sexual assault. Because every one of us – including Ghomeshi himself, who famously showed visual evidence of his violence to CBC management in the belief that it would save his job – knows that these attacks did in fact take place.

So why do we defend a criminal justice system that can do nothing about that? That glamorizes defence counsel tactics – using rape myth, crass misrepresentations of the impact of a traumatic attack, insinuations of intentional malice, deceit and – god help us – desire for fame – on the part of the complainants, while protecting the accused from answering any of the allegations against him?

Those who “get” it and those who do not

You might make these points differently to me, and perhaps point to further and different problems with the system we have. But the most stark division in the fall-out from Ghomeshi is between those who “get” it – who see a clear disconnect between our justice system and the way we confront the epidemic of sexual assault and rape against women and men – and those who do not.

Face it – there are many wonderful people with good values whom we may like a great deal who do not “get” this.

Perhaps because they simply cannot understand what it means to experience sexual assault. Or perhaps they do, but don’t want to think about them because it’s too upsetting. Or perhaps believe that to enter the legal profession they have to forget what they know and don the “reasonable doubt”/ “presumption of innocence” mask.

As we gradually begin to heal from our shock and upset at the Ghomeshi decision, let’s try to reach out to those who do not “get” this. We have to be patient (not my strong point, but I’m trying) in explaining how the present system neither recognizes nor understands a survivor’s experience. We must engage in those conversations that in the last few weeks, we have been dreading and perhaps avoiding.

And we must do this over and over, if necessary. We can’t give up. We have to try to meet people where they are, and address their concerns and questions. Let’s try to bring those decent, good people whom we all know who do not “get” it to a place where they can be united with us in our rage at the Ghomeshi decision.

-Julie Macfarlane


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