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The Verdict's In: Ghomeshi Trial Prompts Calls for Legal Reform Around Sexual Assault

Ex-radio star Jian Ghomeshi may have been cleared of sexual assault charges in Toronto this week, but the debate around sexual assault and the law isn't over in Canada.

by Hilary Beaumont
Mar 24 2016, 6:55pm

Photo via the Canadian Press/Frank Gunn

In the freezing rain outside the sexual assault trial of Jian Ghomeshi, protesters chanted "We believe survivors!" moments after Justice William Horkins acquitted the famed media personality of all charges.

"The way the court system works right now, it doesn't work to protect sexual assault survivors," Jessica LePage, a volunteer at a rape crisis centre, told VICE News. "It's protecting the rapists and the people who are assaulting survivors."

"This is a way for us to say, right now it's not a fair process, and it should be changed to make it fair," she said.

The Ghomeshi trial has led to heightened public scrutiny of how the Canadian legal system deals with sexual assault claims, and focused attention on rampant underreporting and low conviction rates of rape and other sexual violence. Ghomeshi faced four counts of sexual assault, and one count of choking to overcome resistance.

And in the aftermath of the trial, women who say they've been sexually assaulted, and the lawyers who defend them, are calling for serious reforms to the way the Canadian legal system deals with sexual violence.

Related: Former Canadian Radio Star Jian Ghomeshi Acquitted of All Charges in Sex Assault Trial

Tara Muldoon, herself a survivor of sexual assault, plans to host an event in Toronto Thursday evening following the verdict called "Ghomeshi Trial: What Now?" The goal, she said, is to find solutions to the lack of accountability for perpetrators of sexual assault, and to allow women to share resources for how to deal with sexual violence.

Like many Canadian women, Muldoon watched the Ghomeshi trial closely. She has a personal understanding of how the legal system tackles sexual assault — or doesn't, in her case.

"I was raped at 18, and I was discouraged a million times over from pressing charges and from going forward," she said.

"One of the things that many sexual assault survivors say after they've been through a criminal prosecution is that they really felt invisible, ignored."

Immediately after, Muldoon said she had a rape kit done and reported the assault to police. Although she thought she had done everything right, she said police discouraged her from pursuing criminal justice, telling her it was pointless — the perpetrator was moving out of the country. She felt discouraged before the court process had a chance to kick in.

Recently, she saw the man she says raped her in a Toronto nightclub, taking selfies with women. It brought memories of the assault and attempting to report it flooding back.

Looking back, Muldoon wishes a different method was available to her.

She says an option referred to as restorative justice would have focused on her needs, as opposed to criminal court, which she believes re-victimizes complainants. "I don't think it's provided as an option enough," she said of restorative justice.

Pamela Cross, a lawyer and the director of Luke's Place, an Ontario centre for women who have been abused, agrees that restorative justice can be a good option for rape victims.

Restorative justice brings the accused, the complainant and anyone else who may have been harmed together in the same room to have a conversation about why the complainant thinks they were wronged, Cross explains. The process requires the consent of everyone involved, and offers the chance for the survivor of the assault to be more engaged in the process, she said.

"One of the things that many sexual assault survivors say after they've been through a criminal prosecution is that they really felt invisible, ignored and as though they were being revictimized, and a restorative justice process brings people to a table in a collaborative manner so that everybody can learn from what happened."

Through this process, the accused can learn why what they did was unacceptable, can offer an apology to the victim, and consider whether therapy or other remedies might prevent them from assaulting someone in the future, Cross said.

Right now, restorative justice is a rarely-used process, although Cross points out it is used in some Indigenous communities as an alternative to the criminal justice process. "Without a structure, there isn't really a way for it to happen ... We really don't have a structure for it now in Canada."

Related: This Canadian Sex Assault Trial May Tackle the Question of Where BDSM Turns Into Assault

Muldoon says she knows of one other woman who posted on Facebook, writing that the same man assaulted her, too. If restorative justice had been available, she believes the two women could have shared their stories with each other, which would have helped them deal with the trauma of being assaulted.

In Canada's criminal justice system, courts usually do not take kindly to witnesses or complainants who communicate with each other during or before the trial. In the Ghomeshi case, two of the complainants discussed the case in text messages, leading the defense to accuse them of collusion.

"If that is the system, would any sexual assault survivor in his or her right mind sign up for that? Answer: no."

If Muldoon could make one change to the legal system and how it deals with sexual assault, she would train everyone in the system — from the defense lawyers to the judges — in how victims of sexual assault react differently to sexual trauma.

"Put them all in the training tomorrow," Muldoon said. "If I had ten-thousand-million dollars that's what I would do, train them, anyone who is involved in any part of the process at all, from the person doing security from the judge to the lawyers — everyone should be trained in [how victims react to] trauma."

In his decision Thursday morning, Justice Horkins emphasized the fundamental principles of the Canadian criminal justice system, the presumption of innocence and the burden of proof beyond a reasonable doubt.

"Even if you believe the accused is probably guilty or likely guilty, that is not sufficient," the judge read aloud to the court. "In these circumstances you must give the benefit of the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt."

Justice William Horkins told the courtroom that the presumption of innocence "is not a favor or charity" that is afforded to the accused, but a "fundamental right," after detailing the inconsistencies, faulty memory, and revelations made in court that caused him to doubt their stories.

"Navigating the system is quite simple: you tell the truth, whole truth, nothing but truth," he said.

David Butt, a criminal lawyer with more than 30 years of experience, plans to argue in favor of deep reform to how the justice system deals with sexual assault at an upcoming debate hosted by the Canadian Bar Association.

"The imbalance is profound, it's structural and it's far-reaching," Butt says of how the legal system deals with sexual assault.

"What I'm suggesting is disruptive and will be met with resistance, but I think it's necessary."

There were an estimated 460,000 sexual assaults against women in Canada in 2004, according to Statistics Canada. But according to the Adult Criminal Court Survey for 2006 and 2007, only 2,824 cases made it to court, and only 1,519 of the accused were found guilty. That's roughly half.

"For every 1,000 sexual assaults, three result in conviction," Butt says, putting the numbers from an extensive University of Ottawa study into sharp relief.

"That's a failure rate of 99.7 percent, and a huge percentage of those aren't even reported in the first place. So we have to face squarely the fact that we are abysmally failing to reach the community of sexual assault survivors with our justice process."

Since changes to the criminal definitions of consent and sexual assault in the mid-1980s, reform when it comes to sexual assault has been piecemeal, Butt said, and those reforms have done little to help complainants.

The criminal justice system is adversarial in nature, the courtroom is a cold, sterile environment, and while the accused has a lawyer to represent them, victims do not, Butt said, touching on the fact that the prosecution does not represent the victim at trial.

"If that is the system, would any sexual assault survivor in his or her right mind sign up for that? Answer: no."

Butt said nothing should be off the table when it comes to discussing reform — although he doesn't believe the burden of proof in criminal sexual assault cases should be lowered.

If Butt had it his way, he would empower complainants by giving them their own lawyer, paid for by the state. And, he says, more sexual violence cases should go through the civil process because it has certain advantages for complainants. Unlike the criminal system, the burden of proof is a balance of probabilities instead of a standard of beyond a reasonable doubt.

In a criminal court, he explained, it's very hard to prove sexual assault took place because often there aren't witnesses to the crime, and most perpetrators of sexual violence are known to the victim, which means the sexual conduct takes place in an established social context. In that context, it is easier for the defense to raise reasonable doubt about whether the complainant consented.

"What I'm suggesting is disruptive and will be met with resistance, but I think it's necessary," he said.

Many complainants don't go through the civil process because they're either unaware the process is available to them, or because they can't shoulder the costs associated with hiring their own lawyer.

Cross says she is encouraged by a pilot program in Ontario that will provide free legal advice to sexual assault survivors in navigating the criminal courts, which she is hopeful will remove a significant barrier. She would like to see the same project taken up by other provinces.

Cross made her comments before the judge handed down his verdict in the Ghomeshi case Thursday, but she had a message for those who watched the trial.

"The big takeaway that I would like people to have regardless of the verdict is that this trial has shown us in big, big letters the many ways that the present criminal process in Canada fails survivors of sexual violence," Cross told VICE News. "It's time to look at both how we make changes to that and how we need to create alternative systems. It's also an opportunity for us to understand the extent to which we need public education, so people better understand the issue of sexual violence."

Follow Hilary Beaumont on Twitter: @HilaryBeaumont