By now, even if you’re not in Canada, you have likely heard the collective cry of pain that that has arisen among Canadian women and feminists in response to today’s not guilty verdict for Jian Ghomeshi. (Audrey wrote about it here.)
Elsewhere in Canadian social media land, folks have been weighing in on the apparent tension that obtains between affording sexual assault defendants fair trials while at the same time trusting sexual assault victims’ testimony. For every #IBelieveSurvivors tweet, there are countless tweets exaggerating the incidence of false sexual assault accusations and/or bemoaning the criminal justice consequences of taking the victim’s word as gospel.
The thing is, leaving aside the motives of those who are busily concern-trolling #IBelieveSurvivors, there is a genuine tension between believing survivors and ensuring full and robust defenses in criminal trials — two goals that we should all enthusiastically embrace. Much of the difficulty here hangs on defendants’ right to silence.
The media has sometimes referred to the Ghomeshi case as a “he said/she said” case. This isn’t quite right since Ghomeshi didn’t testify. Thus, the case was reduced to a “she said” with no corresponding “he said.”
It seems to me that the clearest positive defense Ghomeshi could have offered would have been to testify, and in that testimony to explain his understanding of consent, and explain what he does to obtain consent before engaging in violent sex with his “partners” (or, at least, with those who have pressed charges). Any responsible BDSM practitioner thinks very carefully and communicates very clearly about consent. It would have been helpful to hear Ghomeshi’s account of his thoughts and communications around the alleged events.
Of course, such a “positive defense” was never going to happen. The Canadian legal system, like many others, guarantees defendants the right to silence. There is no obligation for defendants to testify in their own criminal trials. And, no defense counsel worth her salt would have advised Ghomeshi to waive this right. In a case that rests entirely on competing testimony, there is considerable advantage to defense counsel in being able to cross-examine plaintiffs’ testimonies without having to expose the defendant to similar cross-examination.
I understand the value in the right to silence. This right is in many respects central to ensuring procedural fairness in criminal proceedings.
However, in those sexual assault cases in which the only available evidence is the testimony of the accuser and the accused, the right to silence exposes the accuser to standards of credibility that are not experienced by accusers of any other crimes. No defense counsel ever enquires into the moral fiber of the robbed shopkeeper. In a broader social context in which, as we know, sexual assault is endemic, its rate of prosecution is very low, and the rate of false accusations is extremely low — on par with all other crimes, despite myths to the contrary — this special burden that sexual assault accusers bear is an injustice piled on antecedent injustices.
I don’t know what to do about this. I don’t think we can force defendants to testify at their own trials; nor should we penalize them for failing to testify. However, it is wildly unjust that, as a downstream effect of the right to silence, sexual assault plaintiffs are routinely raked over the coals, their privacy and dignity violated, their character, lifestyle and associations held up to public scrutiny. (And, inevitably, it’s even worse when the plaintiff is racialized, poor, LGBTQ, disabled, etc.) I have no idea what to do about this, but as long as we do nothing, our judicial system remains an accomplice in the brutal, systematic revictimization of survivors.