Jian Ghomeshi. CC Flickr by PEG.

On March 24, former CBC host Jian Ghomeshi was acquitted of four counts of sexual assault and one count of overcoming resistance by choking. The media coverage and public discourse surrounding this decision, and the events leading up to it, have been tumultuous to say the least. Particularly as feminists and the media draw attention to jarring instances of mishandled sexual assault cases, the nation has become embroiled in a debate how best to achieve justice for survivors while still upholding the accused’s legal right to presumed innocence.

It is difficult to engage meaningfully with such a difficult topic, but silence is not an option — we are all affected by gendered violence. In light of the U of T administration contemplating new strategies for preventing and responding to sexual violence, it is especially pertinent to be mindful of what the Ghomeshi trial reveals about how justice is currently manifested in the adjudication of sexual assault cases. Are our current processes adequate recourse for those who have been harmed?

As it stands, a legal acquittal does not preclude the possibility of the accused actually having committed the crime. In order for a person to be found guilty, judges must determine that the accused committed the crime “beyond a reasonable doubt.”

Given that all criminal cases carry the potential of imprisonment, this high burden of proof is necessary to protect those who have been accused. Presuming the innocence of the accused curbs the immense power and influence of the state, which has been wielded to marginalize the most vulnerable in society, such as the poor and the racialized.

The very nature of sexual assault makes it extremely difficult to fulfill this burden of proof (compared to, say, court cases where the standard of judging is based on the balance of probabilities). In sexual assault cases physical evidence is often limited or absent, and it is rare that multiple witnesses are involved. Survivors also have a variety of legitimate reasons for delaying reporting, which include coping with trauma and fearing disbelief from their community. The lack of understanding that surrounds intimate partner violence, and how victims often cope, rationalize, and downplay abuse, means we continue to doubt the intentions of those who continue relationships with the accused; in so doing, we stigmatize the victims.

Anyone with even a cursory knowledge of our current legal system most likely expected the final verdict of the Ghomeshi trial. Although it is arguable that the complainants’ testimonies were contradictory as part of a response to trauma, the Crown, was not able to use those testimonies to demonstrate that Ghomeshi, beyond a reasonable doubt, committed the crime -— and so he was acquitted.

This does not make the case any less a cause for critical conversations about how our courts and society respond to sexual assault. The groundswell of activism responding to the Ghomeshi trial — exemplified by the #IBelieveSurvivors hashtag — pushes back against the notion that the legal system is and must be the ultimate validation of survivors’ testimonies. Such reminders are necessary to assure survivors that they will be respected when disclosing experiences of sexual assault, not only in court but also in confidence with family and friends.

These calls to believe survivors should not be taken as direct recommendations for legal reform (nor university campus policy standards, for that matter). There is a significant difference between respecting survivors while they testify, and creating a formal adjudicatory standard that immediately presumes complainants are telling the truth. The latter obviously infringes upon the long-standing principle of ‘innocent until proven guilty,’ and should be rejected as unconscionable.

Feminist advocates and legal academics, however, are not seriously pushing for the justice system to adopt a categorical belief in complainants’ testimonies of sexual assault. The majority would not advocate that the burden of proof is irrelevant. To view the #IBelieveSurvivors and other relevant feminist sentiments as threatening fundamental principles of our legal system, creates a false dichotomy that hinders much-needed discussions about how to achieve justice for both sexual assault survivors and those accused.

Without substantive legal reform proposals, we need to be asking what processes we could change, or create, to better promote justice in sexual assault cases.

We should not limit ourselves to the narrow conception of whether trials occurred in accordance with current legal standards. There should be no question that Ghomeshi’s lawyer was doing her job correctly, and well, when she revealed the doubt surrounding the credibility for the three complainants.

It is more fruitful to question whether this process promotes justice, in the sense of whether it appropriately determines responsibility and makes reparations for harm caused. Aspects that require particular scrutiny include the support available to survivors when reporting assaults; the extent and nature of questioning into survivor’s accounts; and the interpretation of what constitutes reasonable behaviour after trauma.

We should strive to find a balance, such that the accused holds the right to the presumption of innocence, and that legal recourse adequately accounts for the complexities of sexual assault. The excruciating and prevailing challenge here is coming up with a solution that can harmonize these positions. There is no denying the enormity of this task, but it is possible —  some of U of T’s own academics, such as professor Brenda Cossman and professor Mary Lou Fassel, are already attempting to answer these questions.

This is not a zero-sum game in which feminist advocacy necessarily encroaches upon fundamental legal rights, or vice versa. It is imperative that we internalize this notion — only then can we have constructive discussion on how to promote public safety, gender equality, and justice in adjudicating cases of sexual assault.


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