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All month long, Marie Henein has been giving a masterclass in “whacking,” the controversial technique where defence attorneys aggressively undermine an alleged sexual assault survivor’s credibility by any means necessary.
Henein’s fondness for melodrama (she ended Lucy DeCoutere’s first day of cross-examination with a legit cliffhanger) has turned a sickening display of abuse and re-victimization into a spectacle from which the media and public cannot avert their eyes. Her relentlessness — some might say shamelessness — in digging up old photos, love letters, emails of the Crown witnesses has led many on legacy and social media to accuse the prosecution team of “negligence,” if not “incompetence.”
Criminal lawyers paint a different story. Former B.C. Crown Prosecutor Sandy Garossino has noted that while the defence’s job is to prepare their client for a trial with a presumably strong chance of conviction, the Crown’s job is to lay out the facts of the case plainly and without prejudice.
That means prosecutors cannot “coach” a witness or prepare them for a withering cross-examination the same way a defence attorney can. The Crown specifically cannot “prepare witnesses to the point of shielding or immunizing them from probing questioning that might uncover an inconvenient truth harmful to the prosecution’s case,” Garossino says. As we’ve seen so far with Ghomeshi’s defence, there’s no hold Henein can’t unbar.
The most astonishing aspect of this case appears to be the massive chasm between “truth” and “credibility” in the trial. Most Canadians, even many right-wing critics, seem to allow that Ghomeshi likely assaulted these women and the other 23 survivors who accused him in the media but not in the courts. But just as many seem to agree that the “credibility” of these truth-telling women is shot.
How is this possible?
Even with just three witnesses, the Ghomeshi case has already given a catalogue of clinically typical responses to the experience of sexual assault: compartmentalization, denial, confusion, self-harm and self-delusion. The right-wing line on this reality, exemplified by Margaret Wente’s recent column (no link, masochists), is textbook concern trolling: it’s a shame that Ghomeshi will probably walk because these women and the prosecution responded so poorly.
Yet one fact has been corroborated again and again with sparkling clarity: Jian Ghomeshi hurt me and he did so without my consent.
On one hand, these withheld photos and forgotten emails seem to bolster the belief that the women are telling the truth. Much of the public discussion has focused on pointing out that these responses are perfectly in line with respect to how we experience trauma. But at the same time, the same reactions somehow manage to destroy the witnesses’ credibility. How can we draw from this glaring contradiction that the prosecution is incompetent?
Instead, it should prove what we already know to be true if we possess even a passing familiarity with conviction rates for sexual assault in Canada: the game is rigged.
There are four women all saying the same thing. It doesn’t matter if the Crown allowed The Toronto Star to print the now-infamous bikini photo on its front page on day one of the trial — if the word of four women isn’t good enough to get a conviction in a Canadian court with the whole world watching now, it never was.
Let’s state this plainly: even if there were a perfect response post-assault that would deliver the conviction we all seem to think is deserved, Ghomeshi picked and in some cases, groomed his victims precisely because they were vulnerable, susceptible to his charms and convinced of his carefully cultivated “nice guy” persona.
We are talking about a person who hoarded a 13-year-old letter from a woman he never dated and never had sex with in the unlikely case he would need it to discredit her. Any claim to “credibility” was forfeit by design before the assault ever took place.
If Ghomeshi walks, blaming his acquittal on, for example, DeCoutere’s lawyer Gillian Hnatiw, who can literally make the bell toll for sexual predators everywhere with her eloquent support of rape survivors, will be a gross miscarriage of justice.
If — or, as is increasingly likely, when — Judge Horkins hands down a not-guilty verdict, we can point our fingers at one culprit: a justice system built on the ashes and blood of the women it is designed to fail.
I’m grateful to journalist Antonia Zerbisias starting the social media conversation that spawned the initial thoughts of this article.
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