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.

9 thoughts on “Ghomeshi, Sexual Assault, and the Right to Silence

  1. This was interesting to read, thanks, Audrey. I do not know if the identification of the downstream bad effects of a right mean that we ought to do anything to change the right. That depends on the alternatives, which are multiple and exceed my understanding. But it’s worth pointing out something bad even if it cannot be fixed. (I’m not saying it can’t, just holding out that possibility.)

  2. Thanks, Kate. This post was mine, actually. Audrey wrote the really excellent one that preceded it. :-)

    For the record, I’m not proposing to *do* anything about the right to silence. I just wanted to make explicit the particular kind of asymmetry that the right to silence produces (and, indeed, reproduces) in sexual assault cases. My conception of the world is, alas, of a place with ills that cannot be fixed, and tensions that cannot be resolved. (To be clear, though, I’m not advocating for quietism either.)

  3. “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.”

    I wonder if that’s quite right. The analogy would be where (1) the shopkeeper claimed that an acquaintance had robbed him; (2) there was no evidence presented against the acquaintance other than the shopkeeper’s testimony; (3) there was no evidence that a robbery had taken place other than the shopkeeper’s testimony (without that lack of evidence itself being suspicious).
    I would expect a competent defence counsel to have a pretty good attempt at arguing that the shopkeeper was the sort of person who’d invent a robbery for personal gain and/or to hurt the acquaintance given their past history.

    Of course, pure-testimony cases like that arise very rarely outside sexual assault. (And I don’t think my comment in any way tells against your concerns about the injustice caused by the right to silence in those cases – though I also share the suspicion that there’s nothing to be done.)

  4. “The analogy would be where (1) the shopkeeper claimed that an acquaintance had robbed him; (2) there was no evidence presented against the acquaintance other than the shopkeeper’s testimony; (3) there was no evidence that a robbery had taken place other than the shopkeeper’s testimony (without that lack of evidence itself being suspicious).”

    I think you intended this to be outlandish, but it sounds remarkably similar to the Cumberland Farms lawsuits from the 1990s, where it was revealed that the convenience store chain (they run a lot of stores in gas stations) would randomly accuse their employees of theft, extort them for “restitution,” threaten to have their children taken away, and in some cases have them prosecuted and sent to jail:

    “The Inquirer reported in 1990 that four former security officials of Cumberland Farms said in interviews that the company had a policy since the 1960s of interrogating cashiers and collecting as much “restitution” as possible. Under that policy, security officials were not asked to have evidence that an employee had actually stolen anything.”

    The underlying issue, though, seems like it isn’t the right to silence and to confront witnesses, but the utterly cack-handed standards used to evaluate testimony. Judges and juries unquestioningly accept testimony from Cumberland Farms investigators, police, jailhouse snitches, and eyewitnesses whose memories have been contaminated by shoddy interrogation, even though there’s a lot of evidence that this testimony is likely to be unreliable. And then they come up with outlandish reasons not to believe the victims of sexual assault, often based on irrelevant moralizing. The judge’s behavior in the Ghomeshi case seems particularly outrageous, as in the case of complainant #1 at least he acknowledges that alleged survivors’ testimony shouldn’t be assessed based on stereotypical expectations of their behavior, and proceeds to assess her credibility based on stereotypical expectations of how victims will behave.

  5. Hi Matt, if you take a look at the Ghomeshi decision, I think some of your preconceptions will fall away: Horkins is clearly aware that many survivors behave in seemingly-strange ways. What shakes his faith in their testimony is two-fold: their attempts to cover-up those interactions and, more importantly, the utterly unbelievable explanations they gave for having done so: I didn’t think it was relevant or I always intended to bring this up at trial. Have a look at the decision, and you won’t feel as you do now.

    As for the idea that different standards of scrutiny are applied to sexual assault complainants vs. police: this is simply, utterly, and crazily untrue. Let me be clear about this: anyone who has seen the criminal justice system in action has seen judges, defence counsel, and even prosecutors scrutinize, question, and, often, disbelieve the evidence of police officers. In fact, there’s a whole process by which defence counsel request and are entitled to receive police officers’ disciplinary history – meaning that their prior behaviours are material in establishing their credibility, and they get grilled in court on that history and on their actions in the case in which they’re testifying. This is a foundational pillar of our civil liberties regime. For some reason critics of the Ghomeshi decision have decided that a different standard attaches to complainants, and to women in particular. We should all be pointing out how untrue is this idea.

    There really is nothing outrageous or improper in Horkins’ decision: it’s simply a solid and thoughtful summary of the case.

  6. > and proceeds to assess her credibility based on stereotypical expectations

    Matt, that is not true. He did not assess credibility on the basis of women’s actions after the arrest. He assessed credibility on *omitting information* under oath about those actions. Absolutely everything in the judgement that I read was about the witnesses omitting key information. If you read the judgement, it’s pretty clear. And he’s not claiming the women are lying (I don’t think they are). He’s claiming that having hurt their credibility in such a fashion, you could not use their testimony to obtain a conviction.

    Also thanks for the information about the Cumberland Farms cases. Truly horrifying. However, I think the big difference is not the nature of the crimes, it’s whether you have several hundred thousand dollars to spend on defense. Or do you think they’d have survived Ghomeshi’s lawyer’s cross-examination?

    For my part, I don’t understand the emphasis on “trauma”. From what I can tell, there was no consent, and the women here weren’t necessarily highly traumatized. But I see nothing in the law to indicate that long term damage had to occur. The fact that the women felt compelled to hide information is an indication that they thought their trauma was material to the case.

    However, illegal is still illegal. Lack of consent is lack of consent, even if both parties are okay with it after the fact. (And I don’t think this is the case here. It sounds like these episodes were at the least highly upsetting, if not worse). I don’t think it should be required that he shatters someone’s life for him to be convicted of his crimes. Or are crimes against the psychologically robust not supposed to count?

    Anyway, with any luck at all they’ll nail him on the next case.

  7. Brad, here are two claims:
    1. A witness who misremembers the color and make of a car (the sort of conflation that is well known to occur in eyewitnesses after the fact) lacks credibility about whether she was nonconsensually assaulted in that car, which is a key aspect of Horkins’s decision
    2. Someone who thinks the credibility of police is treated as harshly by the justice system as the credibility of alleged sexual assault survivors lacks credibility on anything else they say about the justice system

    One of them is more plausible.

  8. Matt – please read the decision. Believe me, you won’t feel as you do now. The issue of the Love Bug showed that the complainant had applied information that she learned later about Ghomeshi back onto her memories of the night in question. It is simply not a minor issue of make and model, which you would know if you had taken the time to read the document about which you are sounding off online.

    On the police: let’s be clear about the key differences between victims and police in court: police keep careful records in their notebooks, which prevents their stories from shifting with the vagueries of memory as the memories of the Ghomeshi complainants did; they testify frequently and know how best to communicate certainty and reliability; they readily admit what they don’t know rather than trying to make their testimony accomplish everything.

    Again Matt, please read the Ghomeshi decision. [Mod note – deleted one sentence]

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