The real damages

Opinion

Hey there, time traveller!
This article was published 11/02/2016 (2989 days ago), so information in it may no longer be current.

In the middle of Jian Ghomeshi’s trial this week, one of the women who reported harm at his hands explained why she waited more than a decade to tell her story to police.

One of her relatives is in the music industry, she told the court. She feared what would happen to his life, and hers, if she were to report.

“It doesn’t take long for a girl to get a reputation for being hysterical,” she said, a blast of truth; sometimes, all it takes is a single afternoon.

Even in a trial painstakingly reported almost word-by-word on Twitter, that sentence stood out.

With it, she summarized the callous math of sexual assault: sometimes, seeking justice simply isn’t worth it.

Sometimes, it threatens to devour survivors who lived lives, who were conflicted, who didn’t achieve an imaginary perfect.

The Ghomeshi trial has been a nightmare for survivors such as this, a chilling retort to the cautious wave of support that followed the original news. The last two weeks in court dragged all the fears survivors have about reporting out into the open, leaving those fears exposed in a flat and garish legal light.

Old text messages between friends, dredged up and picked apart. Decade-old emails dotted with insouciant humour, the kind women often use to defuse uncomfortable or painful situations, now held up to imply something more sinister. Every communication between Ghomeshi and the women questioned. Every word made suspect.

At least most of us only had to watch it. At least most of us only had to imagine what it would be like to be in defence counsel Marie Henein’s laser sights.

Now, after closing arguments Thursday, we’re left to wrestle with what it all meant. We are left to absorb the lasting impact of a trial dominated by Henein, whose ferocious defence of Ghomeshi triggered a maelstrom of conflicting emotions. I expressed these emotions to fellow advocates for survivors and many of them felt the same way.

To watch her is to watch a powerful woman at the height of her ability. To watch her is to watch everything we fight to show about survivors be torn apart.

Henein herself is uniquely compelling, unapologetic for either her smarts or sexuality in a culture that often declares those things contradictory in women. In an exquisite Toronto Life profile of her career, she shrugged off queries about her wardrobe with the kind of sass once owned by old Hollywood stars.

“If I dress this way, it’s because it amuses me,” she said, and any woman who has felt the same pressure might want to stand up and applaud.

Which makes it hurt all the more, the way the Ghomeshi trial unfolded. This time, the price of watching a woman be lauded for her talent and brilliance was that she had to be seen tearing down other women. She had to be seen holding against them the same candour and resilience that made Henein herself a legal star.

Sometimes, these parallels were striking. On the same afternoon Henein chided complainant Lucy DeCoutere for telling a friend court was “theatre at its best,” Henein closed the day on a dramatic flourish. She built cross-examination up to a literary crisis before calling for an adjournment. A cliffhanger.

Some longtime court observers noted they’d never seen anything quite like it. Henein knew exactly the anxious effect she was creating, and desired it.

Against another witness, Henein challenged her to explain why she would invite Ghomeshi back to her apartment after the alleged abuse. It was, the witness replied, an “absolute misjudgment.” The witness pointed out, correctly, it was a “mistake” a lot of women who survive a sexual assault make.

“I don’t care about a lot of women,” Henein shot back, and though it was a retort to something specific, the statement floated up and lingered.

What does Henein care about? Her client. Winning. She has defended some deplorable people, which is in its way a compliment: for justice to work on the widest scale, it rests on the fragile ideal that even against the worst of us, the state must prove its case.

Still, the spectre of her defence, and the Ghomeshi trial in general, forces us to once again reckon with the tensions of its process.

Henein is just doing her job, after all, one that is as much grimly understandable as it is brutal to watch. Her tactics were predictable, but they were within the bounds allowed in court.

So perhaps the lasting lesson of the Ghomeshi trial is we need new avenues for justice, ones that recognize not all harm requires the same punishments.

Whether or not Ghomeshi is convicted, it’s fair to say evidence shows he used his status to meet women. CBC’s own internal investigation demonstrated his power there protected him. In my own arts writing career, I was subject to warnings about his bad behaviour that followed him for many years.

That story will end soon, one way or another. If Ghomeshi is convicted, the final chapter will be his sentence. If he is not, it is difficult to imagine how he would ever again be insulated by status or position. Wherever he ends up, he will fade from the broadest public view. The country will move on.

The damage of this trial, though, will linger. For justice to be possible, in or outside the court, it depends on survivors finding some small space to speak to others, either in quiet warning or on the witness stand.

It depends on survivors being able to come forward without fearing they will be derided as “hysterical.”

How many of them will come away from the last two weeks doubting such a place is possible?

There may be other options. As Toronto criminal lawyer David Butt has pointed out, survivors don’t generally hunger to see a perpetrator imprisoned. Most often, survivors want simply to be heard. They want acknowledgment they have been wronged and accountability from the person who did them harm.

The criminal courts are not always the best place to navigate this type of hurt.

The evidentiary standard required to justify a criminal conviction virtually demands an adversarial process, one that can see survivors re-victimized on the stand in order to fulfil its requirements.

Sometimes, it feels like taking a cudgel to a cancer. You might crush the tumour. But in doing so, you will also harm everything it touched.

With this in mind, Butt has long advocated for reforms that would better support sexual-assault survivors. He has critiqued the idea of a one-size-fits-all justice system and proposed opening up avenues to allow Crowns and survivors to pursue a civil suit where the circumstances would better fit.

It’s a fascinating idea, one that could be expanded further.

There are many ways we could open up paths inside or parallel to the justice system, not necessarily to pursue criminal repercussions, but simply to allow routes to accountability and public acknowledgment of how survivors have been hurt. It’s something to mull over.

In the meantime, we will do this again in June, when Ghomeshi will meet another sexual-assault charge in court.

We will watch, again, as Marie Henein savages a witness. We will remember she is doing her job, that she has declared herself to feel no conflict about her feminist identity and what she has to do in court.

Maybe she can’t be. Maybe the tension is inherent in the tools of justice. Maybe the toolbox is for the rest of Canada to figure out.

melissa.martin@freepress.mb.ca