Courts are terrible venues for illuminating human behaviour

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Most of the muddle, perplexity and aggravation re: the Ghomeshi trial and its witnesses this week -- Why did she see him again after he choked her? Why did she say the brute was "magic"? -- could have been avoided if this were happening in a novel or film instead of a courtroom. Courts are terrible venues for illuminating human behaviour, if that's what you happen to be looking for.

Legal thinking is linear. One cause has one effect and so on, bumpety-bump, up the line. Lucy DeCoutere -- the only named witness -- actually used this term about her reactions to the (alleged) trauma, under cross-examination. It's not linear, she said, it's cyclical. That's pretty much what you'd expect in dealing with trauma, out there in life.

It strikes me as I write this that even grammar is implicated. In the above two paragraphs, I've resorted to em dashes -- signals of digression -- twice. There's not much room for digressions or counter-movements in legal thinking. "Irrelevant," cry the lawyers. Out in life everything is relevant, counter or not.

Take some examples. Why did they "hang out" with him, including sexually, right after, sometimes long after, the (alleged) assaults? Well: they didn't want to be disliked by someone they had liked, and perhaps still did. Or didn't understand what had happened. Or worried they'd provoked it. There was the nexus of his power and their careers, interviews that might or mightn't happen again. There was pity for him, he seemed distressed, as abusive people frequently are. Why send warm, confiding or raunchy emails? Hm, why does anyone repeat destructive behaviour? Often it's pretty simple, you want to fix something that went badly wrong but you need to recreate the situation so that (you pray) it ends better.

DeCoutere emailed, "I may stalk you a little" -- after, she said, he choked her. So is this a sign she's lying about the choking, or about not consenting to it? Or is she trying to reassert power, or deny what happened, or deny it threw her? Denial isn't just a river. The problem is all these could apply or some or none. In lived life there aren't too few explanations but, usually, too many. You can't really decide and, luckily, you aren't required to choose one and stick to it.

She said she was trying to "neutralize" him, which is a pretty good term: get the damn experience under control. Shrinks talk about attempting to "master" a painful situation afterward; they call it belated mastery, and once you have a technical sounding term, everyone feels better, you could maybe even slip it into court. But please, I'm not talking about battered woman syndrome or any syndrome. I'm talking about normal human nature and experience.

In the 1970s, Phyllis Chesler wrote a groundbreaking book about shrinks who had sex with their patients. When she began research, it was terra incognita; before long she had too much material to keep track of. The most common dialogue when shrink came on to patient was: Patient: Why are you doing that? Shrink: Doing what? Shades of Ghomeshi emailing one (alleged) victim the day after and asking how her flight to Vancouver had been. Any novelist or screenwriter would instantly seize on the contradictory behaviour and ambiguity, knowing that audiences would recognize it too, shot by shot.

But once you're in court, you are where you are and, in this case, a lot depends on the judge. Is he a linear kind of guy or a digressive, em dashes, embrace your ambivalence, type? I have no idea; lawyers and judges range over the spectrum like everyone, but the law imposes its own grooves of motion.

Hence, ahem, defence lawyer Marie Henein's strategy, which ignores ambivalence. If there's an omission, the witness must be lying. Therefore, since she lied about this, she's lying about that. Bumpety-bump. Except lying too is ambiguous, everyone does it, it's a necessary life skill, it can be for good or ill. People use "prevaricate" or "embellish" because lying isn't a rich enough term. At the end of Ibsen's The Wild Duck, the odious, compulsive truth-teller, who ruins others' lives, gets his comeuppance and the audience always cheers.

So beware, when you see the common journalistic phrase: None of these allegations have been proven in court. Few things, aside from the most overt and observable, ever are.

This column was first published in the Toronto Star.

Photo: Padraic/flickr

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