Jian Ghomeshi's sexual assault trial isn't about the conduct of victims after they're abused or about how the criminal justice system treats sexual assault in general, argued Marie Henein, Ghomeshi's defence lawyer, in closing arguments Thursday; it's about dishonesty.
Henein made the remarks to Justice William Horkins as Ghomeshi's highly-publicized sexual assault trial came to closing arguments. Ghomeshi has pleaded not guilty to four charges of sexual assault and one charge of choking to overcome resistance.
On Thursday, Henein recommended her client be acquitted on all counts.
The evidence "is so riddled with inconsistencies" that it can't prove anything, let alone prove it beyond a reasonable doubt, she said.
Crown counsel Michael Callaghan began Thursday's proceedings by reviewing the case against Ghomeshi. The allegations, which are said to have taken place between 2002-2003, all constitute sexual assault because of the romantic context surrounding them, he said.
He went on to challenge some of the "myths" and "stereotypes" made about victims of sex assault, noting that delayed reporting of a crime or the fact that a victim remains in an abusive relationship should have no bearing on the judge's decision.
"The law is clear everyone reacts differently to sexual assault," Callaghan said.
He spoke to each complainant's credibility and reliability by going into the specifics of the inconsistencies and post-assault behaviour emphasized by the defence.
The first witness, who sent Ghomeshi a bikini photo months after allegedly being punched in the head by him, was trying to get an explanation from him using the "only commodity" she thought she had—her body, Callaghan argued. She had trouble remembering certain details, such as whether or not they were kissing when her hair was pulled, in part because "she tried to push this memory down and bringing back this memory was painful for her," Callaghan said.
The second witness to testify was Trailer Park Boys actress Lucy DeCoutere, whose name is not protected by a publication ban.
Callaghan said DeCoutere's attempts to hang out with Ghomeshi after he'd allegedly slapped and choked her are in line with her "people pleaser" personality. DeCoutere did not initially tell police about the emails and letters she sent Ghomeshi after the alleged attack, because, Callaghan said, "the post-assault contact was not relevant to the sexual assault that took place."
As for the third witness, Callaghan said she stayed friendly with Ghomeshi after he allegedly bit her and squeezed her neck because they worked in the same industry and that she didn't mention her consensual sexual contact with him (i.e. the handjob), because she was "embarrassed."
The Crown said the insults about Ghomeshi exchanged between DeCoutere and the third witness point to a "support network" as opposed to collusion. Having "both experienced violence at the hands of the same person," it's natural that they would bond, he said.
Callaghan maintained that all three witnesses were "unshaken" in their claims that Ghomeshi sexually assaulted them.
Danielle Robitaille, Henein's co-counsel, opened for the defence, speaking at length about the number of inconsistencies in the three women's testimonies, which she told the judge should be "cause for concern" and could suggest these assaults never took place at all. She said post-assault contact made with Ghomeshi, including DeCoutere's comment "I love your hands," speak to the possibility of consent.
Henein began her remarks by reading aloud in court the definition of "reasonable doubt."
She said the charge of choking to overcome resistance should be dismissed outright as the circumstances described in DeCoutere's account don't meet the criteria (the victim must be rendered insensible, unconscious or incapable or resistance, and the accused must be using choking to commit another crime).
Henein said the last minute disclosures made by the witnesses—the emails and correspondences sent to Ghomeshi—were only revealed when there was a concern about the evidence coming out under cross examination.
"This courtroom should not be a game of chicken," she told Horkins. "Were it not discovered independently, we weren't going to hear the truth." The complainants' explanations about wanting to "bait" Ghomeshi or trying to neutralize the situation are "not worthy of belief," she added.
She then accused the women essentially of playing the victim card to explain their contradictions.
"What the witness cannot do is lie... and then when caught out say, 'Oh gee, that's just how victims of abuse behave,'" Henein said. "There is not an expert that will testify that perjury is indicative of trauma."
She urged the judge to remain impartial in the face of such a high-profile and "emotional" case.
Horkins said he's reserving judgment. The court will resume on March 24.
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