We have all seen the public spectacle that has erupted during and after the recent Jian Ghomeshi trial on sexual assault charges. In my view, the eruption is due to a collision between abstraction (the court process) and trauma (the typical impact of sexualized violence). At the moment, the debate seems to reflect two separate, isolated universes that do not connect. It is as if people are simply talking past each other.
If as a society we are to move forward at all in relation to how we approach sexual assault, we need to carefully examine the failures of the encounter between abstraction and trauma.
Consider first the traumatic effects of sexual assault on a victim. Sexualized violence presents a shock to a victim’s understanding of meaning and the world. Within her frame of reference, the act is incomprehensible. Her natural response is then to question: “did it really happen?” Aspects of the event, because they are so damaging, become buried. “Do I trust my own recollection?” Because it can’t be integrated, the event or events are perceived only as fragments. And a “trauma bond” develops with the perpetrator: she is now inextricably psychologically linked with him, and she seeks him out. Maybe if he acts differently with me, the damage that has been done to me can be undone.
In the wake of the Ghomeshi verdict, many people, especially criminal justice lawyers, are gleefully claiming “see, the system worked!” They argue that the presumed innocence of the accused is critical, and that every allegation needs to be tested for its veracity. Of course, both are true. And I have known situations where false, monstrously damaging accusations of sexual violence have been made. Ironically, one of the tests of the truth of those accusations is whether the behaviour of the alleged victims is consistent with the effects of trauma.
The people saying “Hurray, the system worked!” tend to be people who know the arcane, abstract rules of the criminal justice system inside out—especially lawyers. They gain their professional reputations from that system, their vocations and their salaries. As Ghomeshi’s lawyer, Marie Henein, remarked about herself, they “know their roles” in it.
But line up the claim that the “system worked” with this reality: a 2012 study found that “for every 1,000 sexual assaults, only 33 are reported; of these, 12 result in charges and six go to trial, where only 45 per cent [i.e. 3 cases] result in conviction” (Macleans, What Jian Ghomeshi did).
In the face of those numbers, how on earth is it intellectually honest to beat the drums and say, “the system works!”? In any other sector—business, nonprofits, government—outcomes like these would result in an immediate rejection and overhaul of whatever initiative is responsible for them. But the criminal court system remains stubbornly entrenched and vigorously defended.
The criminal court system—indeed, our whole justice system—is driven by “due process.” Due process is a process of abstraction. The reigning assumption is that the abstract mechanisms of due process are “fair” and “neutral” in relation to all of the parties engaged in a court process. The notion is that if due process is followed, then justice has been done, no matter what the actual verdict, because the process has been fair and impartial.
But let’s examine that “fairness” claim for a moment. There are three parties engaged in court. The first is the defendant. The second is the “public,” which has an interest in being protected from criminal acts. It is represented by the “state.” The third are the alleged victims.
The defendants are represented by lawyers. The public is represented by lawyers (the Crown prosecutors). The alleged victims are represented by no one. Already this is extraordinarily unbalanced and not “neutral.” But that is just the beginning. All of the adversarial court attention is devoted to the unrepresented alleged victims. Can their story be believed? Extraordinary attention—indeed, all of the attention—is paid to their conduct especially after the alleged offence, the time when they may demonstrating the effects of the trauma the most, with a view to establishing their character and credibility as truth-tellers.Meanwhile, the defendant cannot be compelled to tell, under oath, his version of what happened. He is carefully protected from being questioned about his conduct before, during and after the alleged events. No one has a chance to examine his credibility as a truth-teller.
What is astonishing is that this is defended as “fair” and “neutral.” On the contrary, this is a clear imbalance of power. Here too intellectual dishonesty of the highest order reigns—committed by highly educated people. It is no wonder that victims often experience the court process as re-marginalization and re-traumatization—another act of power imbalance directed at them. And it is no wonder that only 33 of 1,000 victims report their assaults.
We need to move from “justice means following due process” to “justice means accountability.” Until we do, survivors of sexual assault will continue to be stigmatized as unreliable and deceptive. Power will continue to be bluntly and disproportionately applied under the guise of “fairness.” We will continue to operate in two universes that simply do not connect. And we will continue to sift through the wreckage that is our criminal justice system in relation to sexualized violence.
Mark Vander Vennen, MA, M.Ed, R.S.W., is the Executive Director of the Shalem Mental Health Network. He has testified in criminal and family courts, and is a certified trainer in Restorative Justice.