The rusty gears of the law machine have spat out yet another predictable verdict. When it comes to the treatment of sexual assault victims by the system, two things are plain: first, the notion of justice is wildly irrelevant, so that tearful or angry appeals to it seem, on reflection, to be rather pathetic. Second, truth, even obvious truth, is irrelevant as well.
Let’s take a look at what is right in front of us. After a police appeal, numerous complainants ventured forth to tell their stories of encounters with Jian Ghomeshi. Three were witnesses in this trial. What possible motive could they have had in being so, knowing what a buzz-saw a sexual assault trial is, other than hoping for justice? The desire for it was so strong that they overcame whatever reservations they might have had, and became part of the very system whose workings we have just seen demonstrated. Obviously they weren’t in it for financial gain. Or fame (two of the three complainants preferred to remain anonymous). Or for a lark.
A system is greater than the sum of its parts. Grassroots union activists are elected to union office and find that they must cope with institutional demands that may be at odds with their past style of expression and even, on occasion, their union principles. An anarchist becomes a university professor, and finds fundamental incompatibilities between his or her beliefs and performing a new, fairly structured role as expected. Strategies are necessary, under such circumstances, to be true to oneself and at the same time become a working component of something larger. And those strategies are not well-mapped by any means: they are based upon individual circumstances, and thus very often must be shaped in the dark.
The criminal justice system is also an institution. Having become part of it, the three complainants were pressured in all sorts of ways to conform to it. They met with police, and with the Crown Attorney. They were walked through the process, which is not a simple one. Their likely burning desire for justice had to be accommodated within the system to which they had surrendered.
Part of that system is built upon role expectation. Witnesses must be “good” witnesses: in a highly-gendered trial process, victimized women should not appear too cold, too self-possessed, too aggressive. In a recent stalking case, for example, the accused got off in good part because his prey fought back. If victims want justice, and they alone are the sources of evidence upon which the Crown is expected to proceed, they must be convincing.
When one of the complainants talked about “navigating” the system, that’s precisely what she meant. The judge placed his own construction upon her use of that term, but we should be wary of his glibness on that score: navigation is not all about telling the truth, the whole truth and nothing but the truth. It’s also about appearance, demeanour, consistency (but not too much consistency, because that might excite suspicion that a story had been constructed rather than imperfectly remembered) and many other factors—credibility, in short, a term that contains much within it. Those women needed to be believed. Through a post-traumatic haze and many intervening years, I would suggest that they were well aware of how imperfect their memories were, how precise details of the assaults were missing or possibly misremembered, and how putting the remaining fragments into words might look to those who want a well-formed narrative—-“Just the facts, ma’am.”
How to plug those memory gaps, and produce a coherent and believable recounting that would see justice done? In a word, the women confabulated. It was not a winning strategy, as one might reasonably expect in a court of law. Neither was two of them communicating with each other for months: what they likely sought was mutual support, but to others, including the judge, it was simple collusion. As their credibility began to fall apart, their stories changed. They floundered. Their attempts to produce a believable narrative were shredded.
Life, of course, is not a narrative. We impose narrative to make sense of events. Where those events are traumatic and poorly remembered, any narrative must of necessity suffer: it will become only partly true at best. “The truth, the whole truth and nothing but the truth” is an extremely problematic notion, even a fallacious one. But it governs expectations of the parties in a criminal trial. In this case, it wouldn’t have taken a star defence counsel to point to all the holes and patches in testimony and earlier statements. Nor should we be surprised that the judge, enmeshed in his own set of rules, had little choice but to acquit, even if some of us might take issue with the manner in which he expressed himself.
In short, everyone played their parts on a flawed and creaky stage. The outcome was inevitable. A violent sexual abuser walked free, while his victims were savaged by pundits and “legal experts” and countless Internet trolls. Too bad that Big Ears Teddy couldn’t have been subpoenaed to offer similar-fact evidence.
Even in 2016, the victims of sexual assault are the ones actually on trial. Women face an uphill struggle to be believed, and knowing that, they attempt to make themselves believable in a courtroom, not on the basis of their actual experiences, but to conform to expectations of what is believable. Those expectations are not neutral, they are in no way unbiased: they are imbued with gender and other social assumptions. That’s a steep hill to climb, and the women in this case failed badly to do so.
The system, however, worked exactly as it should, as a cyberspace friend chided when I said elsewhere that it is lacking. We were both right, of course. The system exists to lack. The lacking is a feature, not a bug. The system did not come into being to dispense some quaint and abstract notion of justice, but to reproduce structures of power elsewhere in society. And it has to be said that it performed flawlessly this time.