We spoke to experts about Tuesday's cross-examination and what it means.
Jian Ghomeshi leaves a Toronto courthouse with his lawyer Marie Henein (left) after the second day of his sexual assault trial. THE CANADIAN PRESS/Frank Gunn
Even non legal-types could tell that Tuesday went poorly for the first witness in Jian Ghomeshi's sex assault trial.
By the end of her cross-examination, Ghomeshi's lawyer Marie Henein revealed that the witness, who has accused Ghomeshi of pulling her hair and later punching her in the head, contacted the former CBC host via email a year after the second alleged assault took place. This despite her repeatedly telling police, the court, and journalists that she'd made every effort to cut him out of her life.
"I didn't have any more dealings with him after that," she told police in sworn testimony heard in court, referring to the time period after Ghomeshi allegedly beat her in the head at his home in January 2003. She said she would turn off the radio or TV when he made appearances as they forced her to "relive the violence." That wasn't true according to the emails.
The emails Henein presented in court showed the witness contacted Ghomeshi in January 2004 asking him to get in touch with her and again in June of that year, this time including a photo of herself in a bikini.
Henein accused the witness, whose name is under a publication ban, of lying under oath. The witness said she "didn't remember" sending the emails and later claimed she was using them to "bait" Ghomeshi.
"I wanted Jian to call me so I could ask him why did he violently punch me in the head," she testified, noting that she was in a committed relationship at the time and no longer had any romantic interest in Ghomeshi.
It seemed like a bombshell revelation, one that came after Henein had highlighted discrepancies in the witness' testimony regarding the details surrounding the two assaults—the make and model of his car; whether or not she had hair extensions; if they were kissing before or during the alleged hair pulling incident.
But was the defence's revelation really as damning as it seemed? And was the witness' statement that her memory came back in bits and pieces, plausible? VICE reached out to experts to put the trial so far into context.
Are the Inconsistencies Heard So Far Enough to Raise Reasonable Doubt?
Michael Spratt, an Ottawa-based criminal attorney, told VICE the witness' credibility and reliability have been seriously compromised by her testimony.
"With inconsistencies of that magnitude it demonstrated the witness is either not credible or is not telling the truth or that the witness' memory is flawed about major details," he said.
Allowances can be made for misremembering smaller details—like the exact sequence of events on the night the alleged assault took place, Spratt said, but the emails showed more than that.
"Either she has lied to the court about having contacted Mr. Ghomeshi," he said, "or it demonstrates her memory is not reliable when it comes to sending an email and intimate messages to the person whom she says months before or a year before had assaulted her in a very serious manner."
The defence will be able to argue that her memory on other points, such as the assault itself, are suspect.
The leadup to this case has prompted much criticism of the justice system and its tendency to rip apart alleged victims on the witness stand, but Spratt argued the cross-examination in this case has been "completely fair."
"The witness has been cross-examined on inconsistent statements...To remove the ability to do that would be to cast aside our common law traditions which go to fairness."
Those inconsistent statements will be looked at cumulatively, said Spratt. "If you put enough holes in the hull of the boat, eventually it will sink."
Trauma Victims Often Have Fragmented Memory
Throughout her testimony, the witness explained the variances in her statements to police, media, and the court by saying her memory didn't come back to her all at once.
"These are memories," she told Henein. "You remember certain pieces of them and as you sit with them you remember more of the peripheral parts."
Henein, at various points in her cross examination, suggested the witness had false memories or was flat-out lying.
But Barb MacQuarrie, community director at Western University's Centre for Research & Education on Violence against Women & Children, told VICE it's entirely possible that the alleged victim did recall things in bits and pieces.
"The details around it, the time of day, the colour of the car, what she was wearing, what he was wearing, they wouldn't be the kind of details that someone who has experienced trauma would hold on to," she said.
"The experience of trauma would be the memory that is most accurate."
It Wouldn't Be Abnormal for an Abuse Victim to Contact Her Abuser
Why would someone contact a man who had allegedly punched her in the head a year after the assault occurred?
That was more or less the question raised in court Tuesday by Ghomeshi's lawyer.
The witness said she wanted an explanation from Ghomeshi, to "bait" him into calling her.
We don't know if that's true or not, but, regardless of the motivation behind the emails, Macquarie told VICE a victim getting in touch with her attacker doesn't mean she wasn't attacked.
"Some women will immediately leave the situation and never go near it again. Many, many, many other women have a much harder time drawing that line between herself and the abusive person."
And abusers can be very charismatic and charming, as the witness stated Ghomeshi was in his initial interactions with her.
Bottom line, according to Macquarie, is the question itself is problematic.
"It should never be implied that the woman is inviting abuse because she's reaching out and showing interest in a relationship," Macquarie said.
The trial continues Thursday.
Follow Manisha Krishnan on Twitter for live tweets from the Ghomeshi trial.