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.