While Judge Horkins cannot be admonished for coming to his conclusion in accordance with the principles of the law – that is, after all, his job – the question remains whether the inconsistencies in the claimants’ testimonies negated the truth of their alleged experience. They could have lied about continuing to have sexual relations, or even flirtatious contact with, Ghomeshi after the sexual assault, and still have been assaulted.
They could have forgotten or confused minor details about their assault, and still have been sexually assaulted. They could have even given Ghomeshi the impression that they enjoyed being sexually assaulted as a way of normalizing the situation, and still have been sexually assaulted. Consent was not the terms on which the case was fought, and it arguably should have been. Furthermore, the standard of proof for conviction in the case was clearly quite high, but so were the stakes for future victims of sexual assault. If their testimonies will almost never reach scientific certainty in the absence of DNA evidence or a “smoking gun,” can we truly say that our justice system serves these victims?
Judge Horkins stated at several points during the course of his decision that he “understood”[i] why victims of sexual assault might provide conflicting accounts of their experiences, especially if they were reporting on them over a decade after they occurred. He was, then, clearly aware of the complexities of sexual assault testimony, but still had to judge in accordance with the law. The first standard of criminal law is that the accused must be presumed innocent until proven guilty. The second is that the accused must be found guilty “beyond reasonable doubt.” It is up to the Crown to meet both standards, the latter of which is “very exacting:”[ii] although the establishment of “reasonable doubt” is “not a standard of absolute or scientific certainty… it is a standard that certainly approaches that.”[iii] In the Ghomeshi case, the Crown had no “smoking gun”[iv] and so could only rely on the testimonies of the alleged victims. Because their testimonies were riddled with inconsistencies, omissions, and in some cases even lies, the judge found them lacking in credibility. According to the standards provided to him by the law, he decided that Ghomeshi’s guilt had not be proven beyond reasonable doubt by the Crown, and so his innocence was maintained.
To return to Luce Irigaray, she states that when women speak they do not only use one voice, she
…is indefinitely other in herself. This is doubtless why she is said to be whimsical, incomprehensible, agitated, capricious… not to mention her language, in which “she” sets of in all directions leaving “him” unable to discern the coherence of meaning. Hers are contradictory words, somewhat mad from the standpoint of reason, inaudible for whoever listens to them with ready-made grids, with a fully elaborated code in hand… It is useless, then, to trap women in the exact definition of what they mean, to make them repeat (themselves) so that it will be clear; they are already elsewhere in that discover machinery where you expected to surprise them. They have returned within themselves. (emphasis added)[v]
The female “voice” is being compared to the female sex organ by Irigaray, which returns “within itself” as the clitoris lies “within,” covered by the labia. While she does not have the justice system in mind when she discusses female autoeroticism, I take her to mean that understanding “woman speak” becomes quite complicated in a society dominated by male speech. To apply it to the courtroom, it becomes even more complicated when being asked for direct answers, and “the truth, the whole truth, and nothing but the truth.” Such an intimidating space might tempt victims of sexual assault into hiding, setting off in all kinds of directions, and turning back on themselves. “Woman speak” can be deceptive in such a context, as it might seem “contradictory” and even “inaudible” to those who listen from within a rationalist framework. According to Irigaray, hearing women speak requires listening “with another ear, as if hearing an ‘other meaning’ always in the process of weaving itself, of embracing itself with words, but also getting rid of words in order to not become fixed, congealed in them.”
At issue in this case is not what Miranda Fricker characterizes as “testimonial injustice,” which is “when prejudice causes a hearer to give a deflated level of credibility to a speaker’s word.”[vI] The claimants arguably walked into the courtroom being given much more of the benefit of the doubt than Ghomeshi, and in the decision it was clear that Judge Horkins struggled with the fact that if they had just told the whole truth they would have had a much greater chance of winning the case. The trial instead demonstrates what Fricker calls “hermeneutical injustice,” which “occurs at a prior stage, when a gap in collective interpretive resources puts someone at an unfair advantage when it comes to making sense of their social experiences.”[vii]
When it comes to sexual harassment this can manifest itself in a “cognitive disablement” that prevents women from realizing that they have been victims of sexual assault and men from realizing that they have been perpetrators. Fricker’s epistemic observation lines up well with DeCoutere’s statement that she “did not report this assault in 2003 because she thought that the incident was not serious enough. She said that she thought you had to be ‘beaten to pieces … broken and raped’ before going to the police.”[viii] On the other hand, to assume (if the alleged assaults did occur) that Ghomeshi did not know that he was engaging in inappropriate behaviour would be to give his actions a very generous reading. The CBC fired him in 2014 as a result of an investigation that revealed abusive behaviour towards a particular woman, and Kathryn Borel, a producer for his radio show Q, also pressed charges for sexual harassment. It would be naïve to think, or even attempt to argue that, he did not know the code of conduct for his office, or what appropriate behaviour towards strangers constituted.
Fricker’s statement that the type of “cognitive disablement [that] prevents [a woman] from understanding a significant patch of her own experience: that is, a patch of her experience that is strongly in her interests to understand,”[ix] more appropriately applies to DeCoutere’s alleged sexual assault than it does to Ghomeshi’s alleged perpetration of that assault. The epistemic injustice suffered by all of the claimants in the case, if their allegations were true, which was not under dispute during the trial, their testimony was, was most likely “hermeneutical marginalization.” This is when there are resources available to some members of society (those in power) to make their perspectives known, resources that are not available to others (the marginalized). This asymmetry usually results in a structural prejudice which will “tend to issue interpretations of that group’s social experiences that are biased because insufficiently influenced by the subject group, and therefore unduly influenced by ore hermeneutically powerful groups (thus, for instance, sexual harassment as flirting, rape in marriage as non-rape…)”[x]
The almost scientific level of certainty required to be met when it comes to the standard of “reasonable doubt” might be evidence of the existence of structural prejudice against victims of sexual assault in the courts. Further evidence of structural prejudice might be that expert witnesses are not required to be called in cases only heard by judges (and not juries). Certain sexual assault victims are clearly disadvantaged by this, because they have no ally in the courtroom to be an “authority” on their case when they may not “cognitively” be able to be that authority for themselves. Such a witness would be supported by Okruhlik, who has pointed out the importance of diversifying perspectives when it comes to the development of theories… or in the case of judges, reaching certain decisions based on the facts of a case.
T. M. G.
[i] R. V. Ghomeshi. Ontario Court of Justice. Court File No.: Toronto 4817 998 15-75006437 (2016), 10; 22; 23 – 24.
[ii] Ibid., 20
[iii] Ibid., 21
[iv] Ibid., 23
[v] Luce Irigaray, “This Sex Which Is Not One,” in The Sex Which Is Not One, translated by Catherine Porter and C. Burke. (Ithaca: Cornell University Press, 2010), 29.
[vi] Miranda Fricker. Epistemic Injustice: Power and the Ethics of Knowing (New York: Oxford University Press, 2007), 1.
[vii] Ibid., 151
[viii] Ibid., 155
[ix] R. V. Ghomeshi. Ontario Court of Justice. Court File No.: Toronto 4817 998 15-75006437 (2016), 9.
[x] Ibid., 1
Fricker, Miranda. Epistemic Injustice: Power and the Ethics of Knowing. New York: Oxford University Press, 2007.
Irigaray, Luce. “This Sex Which Is Not One.” In The Sex Which Is Not One, Translated by Catherine Porter and C. Burke, 23 – 33. Ithaca: Cornell University Press, 2010.
R. V. Ghomeshi. Ontario Court of Justice. Court File No.: Toronto 4817 998 15-75006437 (2016).