Friday, March 25, 2016

A parable about the Ghomeshi trial and verdict

Let's say you and I dated a few years ago. We spent time together, I liked you, and you gave me clear signals that my affection was reciprocated.

One evening, we went to see an opera, Madama Butterfly. We strolled back to my home on a clear, cold evening. I was carrying a large amount of cash for our evening out and still had $500 on me, so I briefly dashed into my den and put the remaining money in my desk drawer. While I was in the kitchen preparing something for us to snack on,  you sneaked into my den and stole that money. There was no question in my mind that you were the thief.  The money was there before you came to visit me and it was gone immediately after you left. You took my money without my consent. I know you did it and you know you did it.

I don't tell anyone at that time about what you did.

The next day, I send you a note telling you how much I enjoyed your visit, how much I want to see you again, and I tell you how you're so special to me because I know I can I trust you.

We continue to socialize a few more times, and our interactions are friendly, even warm on occasion. We even get physically affectionate once or twice. But we don't really click, and you start to avoid my company. I'm not happy about it and write you notes to let you know how much I want to see you again, but I get no response.

A year goes by, and my resentment of you having stolen my money never completely evaporates.

Then rumors start to circulate that you have been stealing from people.

The Chief of Police makes a public appeal for anyone who was robbed by you to contact law enforcement and let them know.

I tell the police that on the night we went to see a movie, The Hangover Part 3, on a warm, rainy evening, that after we returned to my home, you stole my $500. When they asked me how that made me feel about you, I told them that I felt betrayed, violated and disgusted. I tell the police that night you stole from me was the last time I saw you. I was fearful of you, and did everything I could to avoid you in the future.

Based on what I now have disclosed, the police and Crown's office decide to charge you with theft.

At the trial, I'm asked questions that I find deeply offensive. The questions your lawyer puts to me imply my honesty and integrity and motives for pressing charges are less than straightforward. I'm asked if there is any physical proof that you stole my money. Did I have a camera set up in my home that shows you taking it? No. Of course not. Who would bother doing that?

So you can prove that we saw an opera instead of a light comedy movie that night, and that the weather was different than what I had said. Is my memory on trial!? Well, even if my memory is the only evidence against you, the memory of having $500 taken by someone I deeply trusted isn't something that fades.

Did I confront you at any time about the theft or complain to you that you should return the money? No, I didn't because I liked you and I thought maybe I did something to upset you that made you act out that way. I know now that I was foolish to blame my self, and it's not unusual, I insist, for people to internalize wrongs done to them.

Even though I claimed that I never saw you again, when faced with evidence that proves we saw each other many times, on my initiative, I'm forced to admit that I didn't tell the truth because I was embarrassed. Yes, I lied, under oath, to police, to the Crown Attorney, and to the Court, but isn't that understandable under the circumstances?

Let's see what happens when they put you on the stand to testify! Then we'll see how many inconsistencies and lies you get caught up in. What? We have a system where you don't have to testify against yourself? I think that's so wrong and unfair!

When the verdict comes in, I think it's a travesty of justice when you're found Not Guilty. You stole my money and you and I both know that.


That parable above is what would have played out in a theft trial. Or might have in the unlikely event that a prosecution had gone forward on a theft charge with so little evidence.

It's in essence what played out in the trial of Jian Ghomeshi, who was found Not Guilty of four sexual assault charges and a Choking to Overcome Resistance charge on Thursday morning. It's not like Ghomeshi went unpunished as a result of the verdict. His career was destroyed, his finances are in tatters, the status he gleefully enjoyed has been devastated, and his reputation is ruined.

But the verdict was the only reasonable one at which the judge in Ghomeshi's trial could have arrived. When you have someone on trial for a crime, and the only evidence is the testimony of the victim, then the memory and the credibility of the victim become fair game for questions. When the victim can be demonstrably shown to have lied and intentionally concealed the truth in court, then it becomes almost impossible to convict an accused based solely on their evidence.

Even though Ghomeshi is very probably guilty of assaulting the women who testified against him, there was no conclusive proof he did it. And the flaws in memory, the repeated lies, and the intentional concealing of facts from the court by the witnesses against Ghomeshi became insurmountable hurdles towards proving his guilt beyond a reasonable doubt.

There are opportunistic, unscrupulous politicians and quite a few stupid people who are trying to hold up the Ghomeshi verdict as proof that our justice system doesn't work. The opposite is true. The system worked exactly as it's supposed to. The system isn't unfairly stacked against sexual assault victims any more than it is against victims of other crimes who have no proof aside from their actual testimony. There isn't a crime on the books which could have gotten a conviction based on the hopelessly flawed testimony and lack of evidence that characterized Ghomeshi's trial.

In the Communist Soviet Union, people were sent to gulags, and their deaths, on the basis of unsubstantiated accusations of disloyalty.

Unless we want to live in a system like that, where accusation translates to guilt, where the accused is not able to fully challenge the evidence of the accuser, where a conviction does not require guilt beyond a reasonable doubt to be proved, and where people can be sentenced to long terms in jail based on clearly flawed and sometimes deceitful testimony, then sometimes we're going to have to put up with guilty people not being convicted by the courts.

While that's a sometimes unfortunate outcome of our judicial system, the Soviet-style alternative being proposed by critics of the Ghomeshi verdict would be far worse.

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