The sex assault trial this week should be primarily about prosecutors laying the groundwork for overwhelming evidence of four crimes. For the case against Ghomeshi, the prosecutor should have the witnesses damn near bulletproof at this point. They even have their own lawyers to help them prepare. And yet, the defence attorney has picked them apart with relative ease. Not even after days of grilling, or horrendous cross-examinations that people expect. But rather, just pointing out major problems with their stories.
The first complainant said he assaulted her by pulling her by the hair so hard it bent her over the back of her car seat. Except she said she was wearing hair extensions that were clip-on — how did they not come off? She also said that he was driving this cute little VW car. Except he didn’t buy it until long after the day of that alleged assault. Neither of those details has anything to do with the assault, except they are part of her evidence of how she remembers the details of the day so clearly. Corroboration of her story, if you will. You see it as a plot device in TV shows and movies all the time — the witness who remembers the person was wearing a watch with a red face, because it was the same as their father’s. Or who remembers that it was 11:02 p.m. because they checked their watch at 11:00 as their TV show ended. Blah blah blah. Insignificant details that show the rest of the story is true because memories don’t lie.
Except they do lie. Memories lie all the time. Maybe she didn’t wear the extensions until later that week, maybe she took them off, maybe she remembers it as a VW bug because that’s what she saw him drive later and that’s what she pictures him driving on the day of the assault too. In her memory. Maybe he was wearing a red shirt, and she remembers blue. Irrelevant to the facts, but not irrelevant in a court trying to judge the credibility of the witness based on their sworn testimony.
But even if you bypass those “details”, there’s a big one that cannot be missed. She didn’t say anything to anyone about a kiss in any of the initial reports, even to reporters, even denying to reporters that there was anything remotely intimate like kissing. Yet then there would be a problem if there was no kiss. No kiss, no sexual assault. Still an assault, but nothing sexual to make it sexual assault. Gender-based violence, a sexist assault, but not sexual. And the defence attorney pointed out that now she claims there was a kiss too, but she had to think about it for a while to “remember it”. She remembers hair extensions that don’t come off when yanked, all the steps involved in him yanking her hair, but not a kiss that happened at the same time? Or maybe she just didn’t want to report the kiss, because she thought it would look consensual (which by her accounts was somewhat). Either way, bulletproof is not the word for her credibility. With those holes, I’m surprised a prosecutor would put her on the stand let alone take her case to trial.
She also claims there was a second attack later at his house. One that devastated her. And that she cut off all contact with him, couldn’t stand the sight of him, was traumatized every time she saw him on TV etc. A good story. Which is what she told the detectives. Which they wrote down. And never questioned. Until the witness stand when the defence pointed out that she had, in fact, contacted him twice later by email, very friendly, solicitous even, and included a photo of her in a bikini. She now claims she was trying to trick him into contacting her so she could talk about their last encounter. After she claimed she never contacted him at all. She forgets a kiss in the middle of an attack and doesn’t remember it until they tell her it’s a key element of the crime, and she lies about not contacting him or anything. Again, she should have been prepped to the point of being bulletproof. She wasn’t.
However, if you asked me if there is any truth to her story, then I would probably say possibly yes, maybe there is. But that’s not enough. The prosecution’s case should have left me feeling overwhelmingly yes, not flip a coin. The defence hasn’t even started yet. Even a basic prep or some investigation by the detectives would have added some evidence to fill some simple credibility gaps. Instead, it looks like a rookie was prepping her.
But no worries, she’s just the first accuser, right? Two more to come.
So #2 testified today. And it entered Bizarro territory. After the brutal assault, she stayed at his house for another hour. Went out with him again several more times that weekend. And when it was all over and she was back home? She sent him flowers to thank him for the weekend. She says it’s because she’s a pleaser. Psych talk to explain when someone does something that makes no sense whatsoever, at a psych cost to them, because they want to please the other person as a compulsion.
Not unheard of. But she also posed for pics after the assault. Hung out with him when she had other alternatives. With him ALONE, albeit mostly in public.
Again, like the first complainant, I believe she’s likely telling some version of a truth and something happened. But anyone who thinks he is innocent and it’s all a big conspiracy will be chortling with glee; anyone who thinks she’s lying her butt off has ample reason to think so now; anyone who thinks it’s a giant shitshow (her words) where there was a dating relationship that was consensual and likely some sexual behaviour that was not also saw lots of evidence of that.
Yet, again, this was the prosecutor’s star witness. She should be completely 100% bulletproof. She had to be better prepped than the other, lots of work done to make sure she shone on the witness stand. Instead, she got blown out of the water. Not by a grilling of her sexual history or that she was outright lying, but that the details around her story are not corroborated by her behaviour. If they fit the narrative, she included it; if they didn’t, she left it out. That’s what people are seeing.
Two witnesses, two bad appearances. At this point, the case is so weak, Ghomeshi doesn’t need to do much to refute it. The only caveat, the one that would otherwise allow him to avoid taking the stand at all, is that if he doesn’t take the stand, the only evidence on the record is the complainants, which is presumed to be at least somewhat reliable if there’s no counter-story to challenge it. In murder trials, they call it an alternate theory of the crime. In this case, it is an alternate interpretation of reality.
For the first charge, the assault in the car, he could likely argue they kissed, but there was no hair pulling. The second charge? That it never happened. Instead, he found her clingy and lost interest. For the third, either it didn’t happen or there was some basic rough sex that was fully consensual. Depends on what the fourth charge says. But a ten-minute primary testimony would be all they would need to do, they’re nowhere near having to fight reasonable doubt territory.
Which means, as was part of my concern from the beginning, that a high profile sexual assault case stands a good chance of looking ridiculous for everyone involved, with no conviction or even a chance at conviction, and thus putting a giant chill on future reporting. Yet not because of the standard arguments that the justice system is biased, or that the accusers get their sexual history ripped apart, or that they were cross-examined relentlessly to the point of emotional collapse in a confrontational Law and Order-style trial. In fact, they’ve been mostly cross-examined about the inconsistencies in their surrounding stories, not the traumatizing assaults.
No, they stand a good chance of losing because they are trying a high-profile sexual assault trial with such poor evidence and poorly prepared witnesses that a first-year law student wouldn’t even take to trial.
With a giant repercussion that is even more likely now — the big threat for Ghomeshi was never the criminal outcome, it is the likely civil suit right afterwards. The same way O.J. Simpson was “punished” — not guilty on criminal charges, but guilty in a civil suit by Nicole Simpson’s parents. Why? Because a civil suit only has a 50/50 evidentiary threshold, while criminal has the much higher “beyond reasonable doubt” threshold requirement. However, for Ghomeshi, the testimony and handling of the accusers so far has been so bad, that he could use all of their testimony against them in a civil trial and likely have no trouble staying below 50%. It’s been so bad so far, even their BACKUP options are in jeopardy now.
And that is a failure of the system for everyone.