If accusers kept in touch with Ghomeshi, does it matter?
Published Wednesday, February 10, 2016 10:11AM EST
As the sexual assault trial of former radio host Jian Ghomeshi has unfolded, much of the focus has been on how his accusers' behaved after the alleged incidents -- how they still were in contact with the man they accuse of assaulting them, even seeking further sexual encounters.
Advocates for sexual assault victims have wondered why the after-the-fact behaviour of the accusers is relevant to this case at all, and point out that women can sometimes react to traumatic events in ways that might confuse onlookers. One of the accusers herself, Lucy DeCoutere, even opined that the women's behaviour shouldn't be on trial; only Ghomeshi's alleged actions should be.
But at least one legal expert says there is good reason the defence is so interested in what these women said and did after the alleged incidents, and it all comes down to reliability.
Lenore Lukasik-Foss, the director of SACHA, the sexual assault centre of Hamilton and chair of the Ontario Coalition of Rape Crisis Centres, says she has been frustrated that so much of the trial has hinged on the complainants themselves, rather than on whether the assaults occurred.
She says that, after years of working with both domestic abuse and sexual assault survivors, she knows that victims often react in seemingly confusing ways after being hurt by the people they thought they could trust.
She says she was struck by DeCoutere's testimony that she continued weekend plans with Ghomeshi after the alleged incidents in an effort to "normalize" her experience. That kind of reaction is not uncommon, Lukasik-Foss said.
"When someone is charming to them and engaging and friendly – because women are most commonly assaulted by someone known to them, someone they consider a friend, partner, whatever -- it's really hard for them to wrap their heads around the fact that they hurt you that way," she said.
Even though our culture seems to expect a sensible, clear-headed response after such incidents, there is no one "right" way to react after you've experienced assault, she said.
"Can we stop buying into the notion that people should react a certain way, and if you don't, it means you haven't experienced sexual assault?" she said.
Lukasik-Foss fears this trial might dissuade other women from going to police if they fear that all their other actions are going to be called into question.
"I am concerned about the level of scrutiny for survivors' behaviour and what this does to survivors watching this trial," she said. "I'm deeply, deeply concerned by that."
Toronto criminal lawyer and CTV legal analyst Boris Bytensky agrees there is no one way a sexual assault victim "should" behave, or has to behave in order to be believed.
But he doesn't believe that is what Ghomeshi's defence team is saying either. Instead, he says they are more concerned with the reliability of the women's testimony and the fact that some of them failed to mention flirtatious notes and emails they sent later -- even after they testified that they had ended all correspondence .
"The issue isn't so much that these women had further sex contact with Ghomeshi; the real significance is that they initially denied doing so," he said.
"It's not the further contact itself that's the problem, it's the fact that they lied about whether it occurred and have given, at best inconsistent versions and difficult-to-accept explanations for their inconsistencies."
Bytensky said the defence is focused on the women's behaviour for the sole reason that they are trying to raise doubts about their testimony.
"It's not to expose them as somehow 'loose' women who can't be believed. It's nothing like that at all. It would be very improper for all sorts of reasons to suggest that," Bytensky said.
"It's that they are women who have simply not been able to tell the truth. They have been either manipulative or deceitful with either the court or police… That's the defence's position."
Bytensky expects that all of this will be made more clear when the defence presents its closing arguments. He expects they will argue that the prosecution has failed to prove beyond a reasonable doubt that the alleged assaults happened at all.
"I don't think they're going to say 'Don't believe the complainants because look at the way they acted later.' It's going to be a lot more of: ''Don't believe the complainants because they told many different stories about the same alleged event and they specifically denied things that they later went back and said, 'Ok, well that did happen'."
Ghomeshi has pleaded not guilty to four counts of sexual assault and one count of overcoming resistance by choking.