Jian Ghomeshi and the Law

The Jian Ghomeshi case, the accusations of sexual assault brought against the CBC host, and the trial itself, point out something I’ve referred to countless time in this blog. Whatever police and prosecutors might say to the contrary, the primary purpose of the law is not a tool to uncover truth.

We may not like the  judge’s decision nor the defense lawyer’s tactic of putting the accusers on trial, but the verdict was correct in the context of the legal game. It’s plain that Gomeshi engaged in rough sex–even physical viciousness–so people, especially advocates for victims of sexual assault, believe that he evaded proper punishment for his crime. They believe the complainants who maintained that the ‘sex’ took place without their consent. They are mistaking their interpretation of events, however accurate, for the workings of the law.

The case against Ghomeshi was fatally weakened by the stories of the complainants. They maintained contact with the defendant despite having been traumatized by his behaviour. In some instances, they attempted to cover up these contacts. Let’s say, for argument’s sake, that the behaviour of the complainants was understandable, that they were attempting to maintain some kind of control over the situation and their psyches. While this interpretation may be true, the law deals more successfully with external behaviour than internal states of mind. From this perspective, if one were to judge the actions of the complainants as if he or she were observing their external behaviour without interpretation, I think they might understand why the judge made the decision that he did.

On the other hand, I am repulsed when magistrates make moral judgments against people, just as I think that Judge Mertel’s scolding of Sebastian Burns was erroneous. These moral judgments assume a greater knowledge than a judge could possibly have. He conflates an internal state with an external behaviour, i.e. the women were attempting to deceive the court. But why would three women, two of them whose identities were protected, go to such trouble simply to deceive a court? Were they seeking revenge? The questions are very much to the point but the verdict of the trial has nothing to do with intuition.  The bottom line is “What is provable?” Neither Ghomeshi’s nor the complainants’ motivations are relevant; they are assumptions. What is known in a court of law is what can be factually proven. For better or worse, the defense attorney focused her cross examinations on the facts. A conviction against Ghomeshi, from that point of view, would have been a wrongful conviction. And yet, the truth behind this case may not have been addressed. It is irrelevant to the court. The paradoxical problem occurs when a person is wrongly convicted through legal technicalities and the truth is ignored. The irrelevance of truth cuts both ways.

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About ken

I am a former Toronto teacher and writer now living in Vancouver. I work with Dr. Rubin 'Hurricane' Carter, with whom I published Eye of the Hurricane: My path from Darkness to Freedom (Chicago review Press, 2011), as Director of Media Relations and as an advocate for wrongly convicted prisoners. Other publication credits include Songs of Aging Children (Arsenal Pulp Press, 1992) a book of short stories about troubled youth, and Taking Steam, a play co-authored with the late Brian Shein, staged at New York's Jewish Repertory Theatre and Toronto in 1983. Life Without (Quattro Books, 2012) is a novella about a New York cab driver wrongly convicted of killing his pregnant wife. Gary Geddes (Lt. Governor's Award for Literary Excellence) described it as "one of the most brilliant and harrowing short novels I've read since I went on a John Hawkes binge."

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