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Toronto Media Fights for Ghomeshi Complainant’s Bikini Photo, Shows Why Everyone Hates the Media

What public good would be served by making that photo public?

by Manisha Krishnan
Feb 5 2016, 3:42pm

Once in a while, when I'm out in the field reporting, I get told off simply for being a member of "the media."

The people who rip into me often refer to "the media" as a cult full of vultures waiting to sensationalize and exploit every salacious aspect of a story in order to sell more papers and get more clicks.

I'm not naive—I know there's some truth in those statements—but I also know that being a journalist is often thankless. Getting the facts out when the facts are ugly or uncomfortable is a dirty job. But the alternative, that the public at large remains unaware of those facts, is worse.

But at the beginning of Thursday's court proceedings in Jian Ghomeshi's sexual assault trial, however, I found myself 100 percent in agreement with "our" detractors.

Media lawyer Iris Fischer, speaking on behalf of the Toronto Star, Global, CBC, CTV, and Postmedia, requested from Judge William Horkins access to a bikini photo of the first complainant who testified in the trial. (For those keeping score, that pretty much just leaves the Globe and Mail as the only major traditional news outlet that didn't ask for it.)

Fischer was arguing under the "open court" principle that if a judge sees a piece of evidence, the public should as well. "It may be a key piece of evidence," Fischer told the judge, although the photo took place well after the alleged crime occurred, making its relevance dubious.

Earlier in the week, during cross-examination, Ghomeshi's lawyer Marie Henein revealed the witness, whose name is protected by a publication ban, had sent Ghomeshi an email that included a bikini shot of herself. The email was sent in June 2004, about a year and a half after the witness alleges she was punched in the head by Ghomeshi at his Riverdale home. The witness testified she sent the pic to "bait" him in hopes of getting him to talk about the alleged assault.

When I fully processed what Fischer was asking for—access to a bikini-clad photograph of an alleged sex assault victim, presumably to publish—I was incredulous.

"There is a strong suggestion the public should see what you see," Fischer said, noting the bikini shot spoke to the witness' "credibility."

And of course, Fischer reasoned, any features that would clearly identify the witness, such as her face, would be blurred prior to publication.

Both the witness' lawyer and Crown counsel Michael Callaghan fought against the motion. The former said there was a very real risk of the witness being identified by releasing the photo, which was professionally taken and was on the witness' Facebook page, while the latter claimed the stakes were much higher.

Disclosing the pic could result in a "deep freeze" in terms of encouraging other alleged sex assault victims to report crimes that had been committed against them, Callaghan said. (For context, only about six percent of sex assaults are ever reported to police.)

Ultimately, Horkins ruled to keep the bikini photo sealed.

"You don't need to see it to get the picture."

It's important, Horkins said, that victims of sex assault know the court will take "reasonable steps" to act as gatekeepers in protecting their privacy.

In short: journalists saying something along the lines of "the witness sent Ghomeshi an email in which she attached a photo of herself in a red bikini" is more than enough to get the message across.

Even more repugnant is that the witness was a source that some of the above outlets had previously promised to protect. Would complainants have come forward to speak to the media (which directly resulted in the charges) knowing they could be sold out for a cover photo later on? (The answer is obvious.)

The only reason this witness' email to Ghomeshi calls her credibility into question is because she gave conflicting statements under oath about having contacted him after the second assault—the time she says he punched her in the head in his home. The perceived lie—not the content of the email—is what raised doubts about her testimony.

This isn't a perfect world. It's a world where complainants in sex assault cases get hammered about how and why they could've possibly played nice with someone who allegedly assaulted them. It's a world where reaching out to an alleged abuser after an assault seems to somehow diminish or disqualify the fact that the abuse took place.

Journalists, of all people, should be well aware of that. We've been reporting about victim-blaming non-stop since the Ghomeshi story broke and long before.

It's a shame that now, when the entire country is following this trial, with some hoping it could be a watershed moment for victims, some news organizations would jeopardize this potential moment for a sensational photo.

At least they got to write headlines about the judge refusing their request to release the bikini picture.

Follow Manisha Krishnan on Twitter for live updates from the trial.