Ghomeshi, Sexual Assault, and the Right to Silence

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.

Ghomeshi Trial Verdict

The verdict has been read in the high-profile sexual assault trial of former CBC radio host Jian Ghomeshi. The Ontario Court judge acquitted Ghomeshi on four counts of sexual assault and one count of choking. The judge’s verdict was based on his finding the women who accused Ghomeshi not to be credible witnesses. A heartbreaking excerpt from his full verdict:

The success of this prosecution depended entirely on the Court being able to accept each complainant as a sincere, honest and accurate witness. Each complainant was revealed at trial to be lacking in these important attributes. The evidence of each complainant suffered not just from inconsistencies and questionable behaviour, but was tainted by outright deception.

I think that for many of us who were following the proceedings, it was not Ghomeshi on trial, but the women. Ghomeshi himself did not testify in the trial, so his behaviour was not similarly scrutinized.

This is troubling, because despite his acknowledgement that there is no single way in which sexual assault survivors behave, many of the judge’s issues with the complainants’ credibility had to do with a lack of “harmony” between Ghomeshi’s having assaulted them and their behaviour. For example, Judge Horkin did not seem to think that DeCoutere’s post-assault contact with Ghomeshi could be properly explained as an attempt to normalize their relationship. Further, even her involvement with sexual assault advocacy seemed to be portrayed in the verdict as an attempt to get attention.

It may be entirely natural for a victim of abuse to become involved in an advocacy group. However, the manner in which Ms. DeCoutere embraced and cultivated her role as an advocate for the cause of victims of sexual violence may explain some of her questionable conduct as a witness in these proceedings.

This of course is perfectly in line with the stereotype that of women who fabricate false sexual assault claims in order to get attention. Never mind, of course, that the very reason there might have had to be an #ibelievelucy hashtag was the default perspective that she was not, in fact, to be believed.

For many survivors, the fear of disbelief is precisely a reason not to come forward. Survivors continue to have their stories doubted – and even in cases where the stories are believed – to be blamed for the things which were done. So it is very sad in this case for these women to be found lacking in credibility, while the defendant’s credibility was not even called into question on the stand. But something also disturbing with far-reaching implications is Horkin’s claim that the presumption of truthfulness is equally dangerous as false stereotypes of expected victim behaviour.

Courts must guard against applying false stereotypes concerning the expected conduct of complainants. I have a firm understanding that the reasonableness of reactive human behaviour in the dynamics of a relationship can be variable and unpredictable. However, the twists and turns of the complainants’ evidence in this trial, illustrate the need to be vigilant in avoiding the equally dangerous false assumption that sexual assault complainants are always truthful.

While it might be true that not all sexual assault complaints are truthful, the function of this claim seems to be to dissuade us from believing survivors. At least nine women had come forward claiming that Ghomeshi had harassed or assaulted them in some way. Three went to trial and we were told that their testimony was not only unreliable, but also tainted by deception.

It doesn’t seem to me as though believing too many women is one of the pressing problems facing our justice system.

CFA: Bias in Context: Psychological and Structural Explanations (Sheffield)

Bias in Context: Psychological and Structural Explanations
The University of Sheffield, September 5th & 6th.
Deadline: 1st May 2016

What is the relationship between psychological and structural explanations of persistent social injustice? Much empirical and philosophical work focuses on individualistic psychological explanations for ongoing injustice. Such explanations appeal to phenomena such as prejudice, implicit bias, stereotyping, and stereotype threat, in order to understand persisting inequities in a broad range of contexts, including educational, corporate, and informal social contexts.

A key challenge to this body of work maintains that the focus on individual psychology is at best obfuscatory of, and at worst totally irrelevant to, more fundamental causes of injustice, which are institutional and structural. Yet structural explanations face difficulties accommodating the extent to which individual agency is implicated in those problematic structures or institutions. Nor are they well placed to articulate how individual agency might be directed towards changing these structures.

The aim of this interdisciplinary conference is to examine the relationship between psychological explanations and structural explanations of injustice. This work will generate more fully worked-out understandings of the interaction between these two kinds of explanation. These understandings can inform both future empirical study, institutional policy, and individual and collective action.

This conference is the second of four anticipated events on this theme (Cal Poly Pomona, May 2016; The University of Sheffield, September 2016; Sheffield, January 2017; The University of Utah, October 2017) in order to develop sustained attention to these questions.

Confirmed speakers, September 2016:
Dr Alex Madva (Cal Poly Pomona)
Professor Jennifer Saul (University of Sheffield)
Dr Joseph Sweetman (University of Exeter)
Professor Nicole Tausch (University of St Andrews)
Dr Robin Zheng (University of Cambridge)

We invite submissions of abstracts (1500 words) on the themes of the workshop. We encourage submissions from postgraduate or early career researchers. We in particular welcome submissions from individuals who identify as members of under-represented groups. Funds are available to support the travel and accommodation costs of speakers. Papers should be prepared for anonymous review, and submitted via by the 1st of May 2016. Submissions should be made to Andreas Bunge, postgraduate organisational assistant:

The venue of the workshop is accessible. More details about the conference room and venue can be found here:
Specific accommodation needs that are not already met by the venue can be detailed on our online registration form (details of which to follow). We hope to be able to assist with childcare costs, if needed. Please contact the organisers to make enquiries. Our aim is to plan the conference in a way that permits all participants to enjoy the full benefits of participation. Further inquiries about accessibility can be made to conference organizers at the addresses listed below or, if preferred, directly to the venue (contact details are at the link above).

This event is sponsored by The Society for Applied Philosophy, The Mind Association, and The Analysis Trust, as well as the University of Sheffield.

The full program and registration details will be available by 31 May.
For further details or enquiries please contact the organisers:
Dr Erin Beeghly,
Dr Jules Holroyd,