As the trial of Jian Ghomeshi comes to a close, legal experts say the case has “changed forever” the social conversation around sexual assault but are divided about whether it will discourage women from reporting it to police.
Elizabeth Sheehy, a law professor from the University of Ottawa, believes that women in Canada are engaging in new and very public discussion of the issues raised by the treatment of the three complainants in the case.
“Many are disclosing their own experience of sexual assault for the first time,” said Sheehy in an email to Global News. “Women are supporting each other and refusing to accept that discrepancies in the complainants’ abilities to recall details or their [behaviour after the alleged assault] and communications with the accused or others have any bearing whatsoever on the truth of their core allegations.”
The trial has heard testimony from three complainants who alleged the former radio broadcaster sexually assaulted them. During gruelling cross-examination by Ghomeshi’s defence lawyer, Marie Henein picked through inconsistencies in the testimony of the three women, including actress Lucy DeCoutere, the only complainant to be publicly named.
Sheehy says the case has also highlighted what a person can expect in cross-examination.
“The lessons from this trial show how these witnesses are held to an impossible standard, unlike witnesses in other cases,” she said. “Having read countless murder trial transcripts, I can say that even women accused of first degree murder are not cross-examined for days on end as many complainants in rape trials are.”
However, attorney Erin Ellis is worried the relentless media coverage surrounding the case could cast a chill over women reporting sexual assaults to police.
“I do think people may become scared to come forward and put on the spot like that,” she told Global News.
Ellis, a Toronto lawyer who represents sexual assault plaintiffs in civil court, said she hopes the trial pushes the societal conversation around sexual assault to change
“From why is the victim behaving in a certain way to why did the perpetrator do it?” she said. “If the conversation changes and if people understand more of the social science behind the behaviours and understand these are normal reactions then it may be a case where bringing up an email that was sent after an [assault] doesn’t create such a wave.”
Sheehy says the conviction rate for sexual assault in Canada is “shockingly low” and statistics on reporting the crime aren’t much better.
A 2012 study from University of Ottawa criminology professor Holly Johnson looked at Statistics Canada data and found that of the 460,000 sexual assaults annually in Canada, only roughly 15,000 are reported to police. Of those, charges are laid in just over 5,000 with convictions arising in roughly 1,500 cases
Global News spoke with several women, including Jennifer O’Neill, who’ve experienced sexual assault and detailed not only the struggle to report it but the lengthy and invasive journey through the court system.
“I don’t think justice — official, legal justice in our system — is possible for women who are poor, for women of colour, for women who are queer, who are overweight, any identity that doesn’t look like privilege or status quo is a deterrent from your ability to negotiate this process,” Jennifer O’Neil said.
Currently in Canada’s adversarial court system, the right of every accused person to a fair trial means the vast majority of sex assault cases come down to what Dalhousie University law professor Elaine Craig calls “contests of credibility.”
Sheehy says she hopes that changes.
“I believe that Canadians will demand change to the legal processing of women’s sexual assault reports in the wake of this trial,” she said.
*With files from Anna Mehler Paperny
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