Saturday, March 26, 2016

Legal Problems, Curmudgeons, and Sexual Assault. . .

I really wasn’t going to reply to Mound’s irate diatribes concerning the Ghomeshi trial. At the moment I have very little stomach for anyone who seems eager to blame potential victims or has too much faith in the criminal justice system, particularly when it comes to the issue of sexual assault. I’ll be honest, the Ghomeshi trial sent me for a loop, not because I was surprised by the outcome per se, (given that less than one percent of sexual assaults end in conviction, a guilty verdict would always be more surprising than a not guilty one), but because I have known survivors and I know that a big public trial like this will likely lead to even fewer assault victims coming forward. You can argue the technicalities all you want, you can believe that Ghomeshi is totally innocent, that won’t change the fact that this event helps to create a milieu in which survivors are going to be even more reluctant to come forward and subject themselves to such public trial and attacks on their characters. I have also been surprised and saddened by the degree to which many men seem to have an deep-seated psychological desire, expressed in anger, to blame victims for not “doing things right.” I include Mound in this, with all due respect, because he has performatively demonstrated it on more than one occasion. His satirical hyperboles such as “We could go for the guilty until proven innocent approach,” depend upon intentionally provocative embellishments rather than meaningful political, legal, philosophical, or even social discourse.

I have respected much of Mound’s work, and I am sure that I will respect much of it in the future. But we simply disagree with prejudice here. I know that his by-line warns us that he is a curmudgeon so I guess there should be no surprises here.

Mound suggests that none of the condemnations of the verdict in the Ghomeshi trial “offer the one thing that we need, how should we change the system to achieve a more preferable result[?]” Well, I don’t know what Mound reads, but this seems patently false to me. Though I have not bothered to make a conscious effort to record what I have read over the past few days in this regard, I think plenty of people have offered just such a critique. And I will get to potential improvements in a moment. But first I want to say this – there is one important thing that Mound doesn’t seem to be considering: the public anger is not just about the Ghomeshi trial here, its an outburst of a cumulative despair concerning the general lack of justice and continuing epidemic of sexual assault. And much of this anger is coming from real survivors of sexual abuse. In that regard, it is very important to give those people space to vent. When people are going through really difficult trauma they don’t need to lectured to about the mistakes they have made, the reasons that they might “technically” be wrong etc. They need compassion and understanding. You wouldn’t, for example, tell someone who just broke both legs and is in real pain that they were stupid for going sky-diving in the first place; it’s a zero sum game.

But regarding the concrete issue; since the gauntlet has been thrown down, it can be taken up. There are, in fact, very real and concrete steps that can be taken to improve the situation. Take this simple fact – the majority of women who come forward with charges of sexual assault are unaware that the Crown Attorney is in no way ‘their’ lawyer. People who are traumatized and in little condition to sort out how to properly navigate a complex legal system, are often wrongly assuming that someone is “looking out for their interests.” And it is not, as some people have suggested, as simple as “just telling the truth.” If these events have made people aware of anything it should be that victims of sexual assault are also victims of a special kind of trauma, particularly if their assailant is in a position of authority. People in this situation are almost always confused, they often initially blame themselves, they sometimes are in denial for a long time and it can take months or even years for them to understand what has actually happened. This is particularly true because we have lived in a society in which violence against women has been accepted and legitimized. If you think it is simply a matter of “telling the truth, the whole truth, and nothing but the truth,” then you really appear to know nothing about the reality of sexual assault and what it does to people. For these people to come forward is often a herculean task of bravery, and then if they are faced with a hostile police force and cynical or even indifferent Crown Attorneys you might as well forget ever getting a conviction even with good physical evidence. Keeping these facts in mind, some pretty simple steps can be taken to make things easier. Rigorous and regular sensitivity training for all authorities involved. Any training that they are getting at the moment is obviously not working. Then free and on-going counselling that can help victims with the psychological effects of abuse, as well as free access to attorneys that can specifically protect their rights and help them learn what kind of actions might be considered legally appropriate or inappropriate. Then how about this – justices who are specifically hired to deal with sexual assault cases. Judges with their own extensive psych training so that they will understand how and why victims of sexual assault might act differently and even contradictorily to what is understood as the “norm.” More education on consent for younger kids is something that is just started, this needs to become a much more active part of the curriculums of public schools. Furthermore, there should be national standards for how our public institutions as well as private corporations must act concerning sexual assault accusations. Given, for example, how endemic sexual assault is on university and college campuses and how easily accusations can be swept under the rug, these standards would go a long way to creating an atmosphere in which people know that their terrible experiences are going to be treated with the seriousness that they deserve.

For years it was very difficult in the US south to get any kind of conviction of the murder or assault an African-American by white assailants. When civil rights activists made this a major issue, saying that something needed to be done, people actively made arguments very much like Mound’s – saying sarcastically that “do we need to get rid of presumption of innocence?” But that was never the point and everyone knew it. Concrete steps had to be taken. Getting African-Americans on juries, hiring judges who themselves weren’t actively racist, etc.

The Ghomeshi trial is over. But the anger isn’t. The anger is totally understandable and telling people that the judge just did his job, is not in any way helpful unless it inspires people to make changes. Blaming the victims certainly isn’t going to help. Only compassion, sympathy, and a determination to change things will help. I personally don’t think the judge took enough consideration of how sexual assault trauma can affect someone’s behavior. But there is little benefit in debating the minutia of this case. Instead, we should embrace survivors, listen to their anger, and let it remind us that things have to change. Some of these changes can be specifically legal, others are wider social changes that must take place. And one of those changes is not to blame the victims! It is essential that we understand how our own potential biases and sexism can make us less sympathetic or compassionate than we should be because we are all, at some level, part of the wider social problem.

We need to be judged on how we treat our most vulnerable citizens, and few people are more vulnerable than victims of sexual assault. So let’s do everything we can do to empower them and make their recovery and the justice they need easier, not more difficult. Mound sticks to his self-given epithet of curmudgeon. His use of facetiousness demonstrates that beautifully. But facetiousness in the face of real pain offers nothing, and telling people to “let it go” when they have been systematically oppressed, abused, and assaulted, is more than curmudgeonly, it’s downright mean and insensitive. I think one can argue whether or not “hard cases make bad laws,” but they often become the fulcrum which inspires real change.


The Mound of Sound said...

Kirby, I'm sorry but you seriously misapprehend the function of the judicial system. Read a bit, learn a bit. There's a lot of theory that has led to the evolution of our judicial system going back to Magna Carta that you obviously skipped over. Think like Trudeau - the real one - "reason over passion." You want judges conditioned to deal with these 'special cases.' No apprehension of bias there, right? Sorry pal but at least you're honest enough to acknowledge you're in an emotional tangle. No place for that in a court of law. That's how justice goes down the tubes and not just on sexual assault cases.

There's all sorts of female law professors. I think they might be in the majority today. Curious that not one of them has rallied to your rather curious position. Maybe their understanding of the judicial system just isn't up to yours. Thanks for playing.

Simon said...

hi Kirby...good post, and good for you for having the courage to say what needed to be said. Mound has been carrying on in an appalling manner. Writing one aggressive post after the other about that trial, almost challenging women to challenge him, and I hate to say almost encouraging misogynous men to pile on as the have been doing all other the internet. I was going write a post after he came after me for having written a post looking at the wider issues that trial raised. But yours is far more eloquent than mine would have been,
And besides I hesitated to provoke him further, because the day before he wrote a whole post clearly aimed at me for having written about Rob Ford's foul legacy which he dismissed as nonsense in the most contemptuous manner.

You know, I have a lot of respect for Mound, he's a great contributor to our little Canadian blogosphere. But he seems to have a complete lack of empathy, he doesn't seem to understand the bigger social dimension, nowhere in any of his posts is there the slightest sympathy for all the victims of sexual assault. And in his treatment of other bloggers he can be a real bully.

So good for you for standing up to him and not letting him push you around.

rumleyfips said...

Your advocacy of the innocence is no defence theory has a twentieth century history horrible to contemplate. People in the Balkans, South Africa, Mississippi Poland etc., etc. were convicted on accusation and everyone was spared the embarrassment of a fair trial.

While you believe that all sexual assault complainants always tell the truth, the idiocy of this statement formed part of the judge's decision. Belief that the complainant is always lying is as insane as believing they always tell the truth.

In this trial, we saw how the automatic belief in the complainants story can do. The cops and the crown accepted the stories uncritically to the point of malpractice. They were rightly embarrassed for their carelessness.

Memory is a drum you beat on ceaselessly. In this case , the third witness , realising that she was about to get caught perjuring herself , changed her story at the last minute. She knew the truth all along and had no memory lapses. Trying to mask this fact in a torrent of denial does not help victims; it hurts them .

Gyor said...

Believing in due process is not mysgony, the fact is you guys are being mysandrist. You had Ghomeshi convicted before the trial in your hearts, and you don't really care that he might actually be innocent, if he has to sacrificed so no accuser or potential accuser is made uncomfortable briefly, then so be according you people.

I'm not a fan of mound, never have been, but he's 100% right here.

You people are fanatics.

the salamander said...

.. Thanks so much Kirby.. your posts as always deserve multiple reads.. are always from fhe heart.. rich, deep & challenging ! They're always surprising snd deeply original..

Not sure how to shape this.. but Dear Simon, don't get down on Mound.. (I've probably suggested the same to him!) Nowhere ever have I caught or expect to catch.. the slightest accomodation from Mound re sexual assault.. or assault of any kind.. period. I would stand on the same perception re Kirby, Simon & so many others.. so give that a rest..

There's an exceptional group of exemplars.. Indy Bloggers .. who've come to my attention over the last years.. who may differ from me in many ways in approach, style, content, aggression or media.. yet appeal and resonate to me because of passion, values and just plain Canadian heartbeat.. ie glowing heart.. or not .. !

More than any family, or friends.. Kirby, Simon & Mound .. plus so many many others have helped me remain informed, curious, confident.. yet I have never met them.. ie YOU ! But then I have never met Harper, Kady, Ghomeshi, Springsteen or my hero Jacques Cousteau .. ! We go forward on hunches.. dudes .. the Salamanders have spoken ..

Kirby Evans said...

@ Simon, Thanks. Solidarity brother.

@ Gyor That was a useless comment that not only mischaracterized my position but revealed it's ideology in abuse. You said nothing of interest, perception, or significance.

@ Rumleyfips - your comment was so poorly written I am not even sure what you said.

@ Salamander - Indeed, we can have difference of opinion and still contribute to discourse. Unfortunately some issues bring out more anger than others.

Kirby Evans said...

@ Mound - Again, your condescension reaches great new heights. You, of course, know nothing about my actual knowledge in the matter but you love to presume that you know all. However, your condescending manner exposes you here.

First of all, your claims about the judicial system, though unformed here. are FLAT OUT WRONG. Judicial systems, like all political institutions, evolve. People love to make claims about judicial systems having universal and unpliable principles, but those assumptions are simply narrow and ignorant. One only has to make a distal study of the matter to understand this. Among its social responsibilities, the judicial system is supposed to pursue justice. There are clear historical cases in which the limits of a particular judicial body is unable to fulfill this role so adjustments are made. There were numerous cases during the civil rights movement in which it was clear that a Southern municipalities could not get a conviction where one was warranted so the Federal Department of Justice stepped in with federal charges of civil rights violations. This allowed the Federal government to prevent jury stacking etc, and get convictions that were real and clear. The most recent example that I can think of this is the Rodney King trials. A Orange Country jury would never convict racist police of the crime, so the federal government stepped in with federal charges and two officers were rightfully convicted.

It is deeply ignorant and naive to believe that courts have actually lived by Aristotle's maxim that the "law is reason free of passion." It isn't, "PAL." In fact the best defenders of justice have always been the most passionate individuals. (Justice Thurgood Marshall comes quickly to mind). The fact is, "PAL," that judicial systems have always operated through expressions of various ideological beliefs about justice and morality. For much of history this was simply an expression of the ruling class who manipulated the justice systems in their own interests. In some modern cases justices systems have made conscious efforts to take systemic biases and dominances into account. Maybe you need to study some more Mound!?

I won't say thanks for playing because, unlike you, I don't think it's a game.

Evil Brad said...

I am not exaggerating when I say it has been genuinely horrifying to come to the realisation in recent days that there is amongst us such a sizeable -- and vocal -- constituency that sees our most basic legal safeguards as something that should be watered down for the Greater Good.
Some of Kirby's suggestions are quite reasonable, like better training for police and counselling for victims. But the idea that a judge should be "trained" to set aside empirical standards of evidence and witness credibility sounds like a recipe for serious abuse. In fact, that is why those standards exist in the first place.
To suggest these standards are too onerous is just another way of saying you would rather see the occasional innocent be condemned than to ever allow a guilty party to walk. Because that's what would happen, guaranteed. Already happens, and for crimes that tend to involve a lot more hard evidence.
And no, Toronto is not in the 1960s American South. I am pretty sure the prosecutor in the Gomeshi case actually wanted a conviction, as did the police who made the arrest.
It seems to be forgotten by many that we are talking here about the exercise of state power, which has been blunted over the centuries for very good reason. But never mind that, it's just all ancient history I guess. Some of you people honestly scare the hell out of me.

Marie Snyder said...

Thank you for this. I say more on it all here.

Kirby Evans said...

@ Evil Brad - Well chosen handle - absurd comment. First of all, no one suggested that anyone be trained to set aside any empirical evidence. Secondly, that point was made in my previous post. Thirdly, the comparison with the US south still stands. Why are people so chronically ignorant about the nature of comparisons?? Comparison is, by definition, not identity. Of course Toronto isn't the US South in the fifties and sixties. The point, if you read more carefully, is not to suggest that they are the same, the point is to demonstrate that there are cases in the past in judicial systems in which federal governments stepped in to compensate for the limitations and problems in a local judiciary. I can't believe I have to say all this, it is really amazing how incapable people seem to be at grasping basic concepts. The problems in the judiciary of the South was not simply prosecutors didn't want convictions. Even when they wanted prosecutions they couldn't get them!

None of this is a matter of "watering down" the legal system, it is a matter of the judicial system actually responding to what is arguably the single biggest criminal epidemic in our society. Furthermore, your comment about "blunting" state power is entirely erroneous because in this case, as in the case of the US South again, it is elements of the state and the establishment that is, in fact, promoting and perpetuating rape culture.

On the other hand I am not surprised you are scared. Slave owners were scared of Lincoln, whites in the South were petrified of Robert Kennedy when he was Attorney General, and men are now frightened that people are actually trying to make men accountable for their sexual abuse.