A Failure to Communicate: Social Media, Public Opinion, and Criminal Justice in R v Ghomeshi by
Hailee Barber 2L
As I sifted through the coverage of Jian Ghomeshi’s sexual assault trial this February, I came across a variety of opinions that reflected my own somewhat confused feelings about the case. Many criticized Ghomeshi’s defence counsel Marie Henein for what they saw as merciless crossexaminations that played into sexual assault stereotypes in order to undermine the credibility of a person who claimed to be a victim. Others suggested more broadly that any discomfort felt as a result of Henein’s cross-examinations were due to the fact that this exposed for all to see the nature of the beast we call our justice system. The burden of proof lies with the Crown, and there’s just no getting around the fact that in a sexual assault case of this nature proving the Crown’s case beyond a reasonable doubt is a difficult thing to do.
When I had waded through the varied criticisms and perspectives on the case I was a bit disheartened to come away with the conclusion that the complainants did not fall prey to masterful cross-examination, inherent prejudice, or any simple lack of evidence. Rather, they succumbed to a combination of confidence in their case due to social media’s support of their claims and their own apparent ignorance regarding the way our justice system works. When I wrote about the Ghomeshi scandal last year I focused on his now infamous Facebook post. It was my stance that Ghomeshi, a man well versed in social media and its ability to influence people, had crafted his post with that knowledge. Guilty or innocent, he knew what he was doing and he was preparing for what was to come.
Soon after Ghomeshi’s facebook post we saw his accusers come forward in similar ways. The Toronto Star published a piece detailing the accounts of anonymous women who claimed sexual assault at the hands of Ghomeshi before many of these women had pressed charges. Soon after, Lucy Decoutere of Trailer Park Boys fame became a face for those accusing Ghomeshi. Social media again played a major role in piecing together the stories of what occurred between Ghomeshi and the women who came forward. Messages of support were seen on Twitter and other media platforms. The public rallied behind these women and in the wake of the accusations even the former Toronto Chief of Police spoke out to encourage individuals who had been sexually assaulted to come forward. The idea that those who claim to be victims of sexual assault should be believed and supported without question, because coming forward at all is a tremendously difficult thing to do, has largely permeated public opinion. So, when the Ghomeshi trial finally came about this February, many seemed surprised to find that the justice system did not automatically share the #IBelieveThem sentiment.
As the cross-examination of the complainants in Ghomeshi’s case made painfully clear, there is a deep disconnect between how the public wants to support sexual assault victims and the realities of our justice system. If Ghomeshi is not convicted it won’t be because the women who took the stand against him fell prey to Marie Henein’s cross-examination, or because of any stereotyping of sexual assault victims. Ultimately what will have decimated these women’s credibility is their communication—not with Ghomeshi, but instead with the media and other witnesses leading up to the case. The motivation behind Ghomeshi’s race to share his side of the story on Facebook could never be questioned without Ghomeshi choosing to take the stand. However, for the women who testified against him, their race to social media for support and for a platform to share their stories, appears to have done little but harm them in their attempts to bring Ghomeshi to justice. The inconsistencies between their various interviews with media outlets and their accounts on the stand cannot be ignored. The fact that Lucy Decoutere and a third complainant in the case had emailed approximately 5000 times between October 2014 and September 2015 could not be ignored by the court. This does not at all mean that Decoutere had been dishonest or was not sexually assaulted. It does however create openings for the defence team to do what it needs to do, raise a reasonable doubt.
How do we balance our desire to support and belief for those who come forward to tell their stories of sexual assault with a justice system that demands that the Ghomeshi’s of our world remain innocent until proven guilty? Some suggest that this case will be an eye-opening and informative learning tool for those sexual assault victims who come forward in the future. Others say the effect will be nothing but chilling. There is the fear that victims will see that it is the accuser and not the accused that ultimately get torn apart by the process. Perhaps the real solution is to acknowledge that the criminal justice system is simply not equipped to deal with cases of sexual assault. The real solution may lay outside of the courtroom, in community support services and accountability. I however remain more skeptical of the court of public opinion than the court of criminal justice.
While we as members of the public absolutely need to provide support for survivors of sexual assault, we also should not allow what’s trending on Twitter to convict individuals before they’ve ever entered a courtroom. Sexual assault is a unique crime, with a unique stigma, which is precisely why we need the courts in cases like Ghomeshi’s. For those unfamiliar with the justice system this case has brought to light the imperfect process that lawyers, judges and victims of sexual assault must deal with every day. Ultimately a court of justice should remain free from the influence of social media and the public opinion on legal matters. However, when it comes to finding a solution for how to handle sexual assault cases, hopefully the members of the public who have been so outspoken during this and other high profile cases will come forward to work with the judiciary, the government, and the legal profession to transform the support so prevalent on social media into a workable solution.