Monday, March 28, 2016

My Last Kick at the Ghomeshi Can. . . .

I find it interesting the degree to which people think that simply by bullying and name-calling, they have made an argument and that their opponents will go running for the hills. In my last blogpost, I offered real arguments about how one could adjust the judicial system to at least begin to compensate for the systematic biases and the long-term effects of the shocking number of sexual assaults that simply have no chance of resulting in convictions. These are basic and solid arguments. People may not like them, they may disagree with them, but to portray them as not thought out, or worse not even address them at all, demonstrates in my mind the poverty of those who want to do nothing in the face of an epidemic of sexual violence. These individuals glibly condescend, call me names, suggest that I must be uneducated, etc. simply because I have the gall to offer some criticism of a judicial system that has utterly failed to make any real attempt to find justice in a system where it is often estimated that for every 1000 sexual assaults, only one or two criminal convictions are achieved. The misogynistic nature of the system is obvious, but so is the misogynistic nature of the attacks on my position since I have yet to hear such notions from almost any women. And when it comes to sexual assault, even many progressive men line up dutifully behind the rightwing ideologists and the only women that can bolster their position are those like Margaret Wente.

So it goes. I guess it is important that I have a thick skin about it. After all the condescending attitude that is directed my way has been something women have suffered forever. Instead of actually addressing my issues and suggestions I am offered little more that the “you just don’t understand” defense. If I were a woman I fear the attacks would descend to the the “don’t worry your pretty little head about it,” insult that has been around so long.

Here’s the thing, we could go on doing nothing and giving men carte blanch to assault women (and make no mistake, the small number of cases that are brought before the courts let alone that result in convictions is much alike blank cheque to abusers), or we could try to do something at both the legal level as well as the wider social level.

Mound would suggest that I shouldn’t worry my pretty little head about it and should leave the subject to people like himself who actually know something. At this point this is only about the Gomeshi trial in as much as this – while the verdict wasn’t surprising, even legal minds such as Law Professor Peter Sankoff were surprised by the stark terms of the decision and how detailed the dissection of the credibility was. Thus the actual verdict of the Ghomeshi trail wasn’t surprising but even serious legal minds have been disturbed by the details of the judge’s decision. (And, of course, there is another case to come for Ghomeshi) For this reason, I think the Ghomeshi trial could become a tipping-point (to borrow Malcom Gladwell’s expression) for those who know something must be done. And misogynistic attacks aside, when the time for change has come people will be unable to stand in its way.

I won’t rehash my own small suggestions for legal changes that could contribute to a better reporting and conviction rate. As I said no one actually offered any actual critiques of them and instead I was told I “don’t understand” or that I am a fanatic. When you offer real arguments and options and people react this way, it tells me that I am on the right track.

I offer only one more argument and that is the way that courts have slowly begun to consider the effects of long-term abuse in questions of self-defence in murder and assault cases. There was a time not that long ago when the “all or nothing” nature of self-defence claims was unquestioned in legal circles. Most judges and legal minds adamantly suggested that if someone claimed self-defence in a murder (or even assault and man-slaughter cases), they had to establish immediate and imminent danger of their own bodily-harm or death. Though globally courts are still adjusting to the growing body of evidence regarding the long-term effects of battering and abuse, it is changing. Perhaps most importantly for our issue here is the way that courts have begun to take long-term effects of abuse into consideration when reacting to people’s actions. Furthermore, it is not so easy now for prosecutors to argue that because women have stayed with their alleged abuser  they must either be lying about the abuse or it must not have been as bad as they claim. We know now that women stay in abusive relationships for complex psychological reasons and not because they don’t mind being abused as it was once suggested. When people first began to suggest that courts needed to consider these issue in self-defence cases they were laughed at and ridiculed and called fanatics and apologists for murder. But it is now these misogynistic reactions that are falling into the margins. Similarly, we are just beginning to understand the degree to which sexual assault effects someone’s behaviour, but I have no doubt that over time, when new generations of legal minds become more dominant in the system, these issues will be treated more seriously by the courts. Not, or course, if old white men had their way.  

(PS. I offered my thanks and solidarity to Montreal Simon, who gave me support on this issue. He and I have disagreed a couple issues over the years but when I offer a real argument he always treats it with respect even when he disagrees. 


Ben Burd said...

Two really good posts KC, I agree with you that things must change.

rumleyfips said...

Watching the ( CTV ? ) reconstruction of the trial last night I was pleased with the excellent job the liveblogging reporters did. You'd think they'd be all thumbs.

Watching actors read the testimony gave me a new perspective. The main protagonists were all entertainers , used to playing to an audience. Maybe I needed to approach this with a willfull suspention of belief.

Simon said...

hi Kirby...thanks for that, it was a pleasure to support you on this issue, and I must congratulate you again for another excellent post. Well done for standing up to the bluster and the condescension. It's vitally important that men join in the struggle against the scourge of violence against women, and you made us look good. Thank you brother. But surely we haven't disagreed THAT much in the past have we? And of course when we did I was always right... :)

Anonymous said...

I believe there are substantive ways to improve the efficacy of justice in sexual assault cases. The idea currently floated in Ontario - providing complainants with upfront legal assistance (by the State) - should assist with helping to inform people about just how the courts work.

It's important to note that once a sexual assault charge is filed, it actually does have a comparable conviction rate to other serious crimes:

Perhaps further education and information to judges would be helpful - however, the problem isn't necessarily that judges don't understand trauma, but that there may be no objective evidence of trauma (the *claim* of trauma doesn't help the judge evaluate the allegations, because the trauma may itself rest on first coming to a determination of the events having occurred, it's a bit circular). There may need to be greater up front resources for counselling and psychiatric services in order to help victims *and* gather relevant evidence.

Peter said...

Kirby has proposed a series of reforms, but they aren't new. Advocates have been pushing for them for a long time and a great deal of progress has been made in implementing them. On the legal front, the rape shield law has been enacted, the definition of sexual assault is broader, women are now very well-represented on the bench and in the legal profession, court assistance for abuse victims is now widely available, police forces have special trained units to handle sexual assault, the system is much better informed about what victims experience and there has been no end of training initiatives for judges, lawyers, police forces, social services, etc. On the social front, we don't condemn independent female sexuality anymore, have had two generations of compulsory sex education in the schools, and "no means no" has been around for so long it's dated. Yet we are told the problem of sexual abuse and assault is getting worse and is almost a plague. If so, why should we believe we'll solve the problem by just continuing with more of the same?