Infamous Jian, Advocate, 25/03/2016

Every photo of Jian Ghomeshi will now look incurably
creepy. Even this one. How could you, Kermit? And
how much did you know about him?
I was never totally sure that I’d write anything in detail about the Jian Ghomeshi trial. The first one, anyway. We’ll see how the June trial goes. This includes a musing after a long Twitter conversation with my Reply Collective colleague Jack Elliot. But when I read through Judge Horkins’ ruling, I realized that it made for a pretty significant idea.

Now, I’m not an expert in legal theory or wider philosophy of law. I have learned quite a lot over my years at McMaster from being exposed to so many lectures, papers, books, and especially casual conversations on the subject. But I’ll never call myself an expert on the category in this sense, at least compared to researchers for whom it’s their specialty.

But I can make a few key distinctions that matter in how to understand the legal, political, and cultural implications of the March Ghomeshi ruling. The central idea is that there is a categorical separation between the legal, the moral, and the ethical. 

Let’s look at the legal matter first, if only to get it out of the way. It’s the least important anyway.

The Law

The core presumption in any legal trial is that of the accused’s innocence. That’s necessary for any proceeding that has a risk of incarceration – the state’s violent confinement of a person. Let’s also look at the high standard it takes to overturn the presumption of innocence inside a legal trial – proof beyond reasonable doubt.

My earlier posts on George Zimmerman helped me see
how focussing only on the legal aspects of a controversial
trial blinded you to the more important cultural
movement it encouraged.
It was damn near impossible to acquire such proof in this trial. The only evidence the prosecutors could muster were witness testimonies about events more than a decade ago. The narratives of Lucy DeCoutere and the other two witnesses’ relationships with Ghomeshi were fragmented with time and the weirdness of the whole situation in the moment. 

Plus, Judge Horkins wasn’t allowed to consider the three testimonies as constituting a single narrative of repeating behaviour. He could only consider them in isolation as grounds to prove that some particular events happened. With that in mind, Not Guilty was the only permissible legal verdict.

It’s quite possible, as state prosecutors prepare for Ghomeshi’s second sex assault trial this summer, they’ll change their presentation of evidence in the light of Horkins’ judgement. As they should if they’re worth their salaries.

Morality / Politics

The (first) Ghomeshi trial was more than a legal matter, of course. It galvanized the feminist movement in Canada. That’s why there have been protests ever since the verdict was announced. People are rightly frustrated, enraged, depressed, and generally steamed that he has, in all legal contexts anyway, gotten away with a lifetime of sexual harassment and assault. 

The politics of Ghomeshi are about what he stood for in the wider culture after the revelation of Jesse Brown’s reports for the Toronto Star. He stood for male entitlement, and the powerlessness of women. This is why Lucy DeCoutere became so powerful when she publicly accused Ghomeshi of violence against her. 

Our legal systems are often called the justice system, but
justice is a political and moral ideal, which will always be
other and more than any real-world legal system can
supply. However much Lucy and others may have wanted
Ghomeshi to face justice, true justice is not found in
courts or in any material actions of humans.
The hashtag #IBelieveLucy wasn’t just about DeCoutere – it was about all women who have ever kept silent for years about an incident of sexual violence because they felt nothing would come of it except for more injury to herself. DeCoutere became an icon of women’s bravery, and that is extremely important for our society.

Because women still face hostility and verbal abuse when they accuse someone of sexual crimes against them. They’re presumed to be doing so for money, notoriety, or because they want to ruin the lives and career of a prestigious man. 

A woman who accuses someone of sexual crimes against her is the only crime victim received with hostility instead of sympathy. This is a serious and terrible political issue in our society. 

Fear of the hostility and abuse that follows a woman after she alleges a sex crime is a key factor in the underreporting of those crimes. It’s a fundamental factor in the helplessness many women feel when trying to recover from having been a victim of sexual violence.

And the legal system is caught in a terrible bind. Because even though law and morality are different domains conceptually, legal systems still have an ostensibly moral purpose. Though law is not necessarily informed by what’s morally right, we want it to be and believe that it should be. 

The high standard of proof required for a conviction and the rigorous cross-examination of physical and witness evidence influences how people receive sex crime accusations in the first place. 

A victim is cross-examined not only by defence attorneys in the trial – the only place where this is conceivably appropriate – but often more aggressively attacked from friends, family, and her community. This is even more horrifying when a victim is prominent or connected enough to spark a social media pile-on, where abuse can easily become horrific and uncontrollable. 

Jesse Brown became Canada's most notorious and admired
journalist after publishing his takedown of Ghomeshi. But
I quickly lost faith in him once I saw that his efforts were
mainly spent constantly trying to destroy the credibility
of the CBC as an institution. Someone who, during the
Harper years, attacks so vigorously the public
broadcaster while leaving private media untouched,
to me at least, invites suspicion about motives.
People hop on Twitter and demand that DeCoutere and the other witnesses themselves be prosecuted and imprisoned for perjury, simply because a judge found their accounts not reliable enough to send someone to prison. Leave aside that this isn’t what perjury is at all – this is a horrible thing to say about anyone in public, whether or not you believe they were a crime victim.

Judge Horkins’ judgment plays into these stereotypes in awful places. For instance, he discusses conversations between DeCoutere and another witness, where they prepare their testimony together with the explicit purpose of taking down Ghomeshi. Given that Horkins ascribes many witness inconsistencies not only to faulty memory but to outright lying, his accusation of collusion is only fuelling anti-victim rage.

That’s ultimately what the protests of the Ghomeshi trial come down to. People are trying to change how we treat sex crime victims. We should lend them credibility and psychological support while they prepare themselves for what will have to be a difficult trial. We should foreground the terror of sex crimes instead of tearing down sex crime victims. 


What kind of a person is Jian Ghomeshi anyway? To me, one of the most telling moments in Judge Horkins’ ruling is when he says that just because the witness testimony couldn’t prove beyond a reasonable doubt that assaults did happen, no one proved that nothing happened at all.

Leave aside the trial itself, the particular crimes and allegations, doubts and certainties. Ghomeshi’s firing from the CBC and subsequent public humiliation revealed a lot about who he was as a person and the institutions that gave him so much unchecked power over others. 

For all the corruption that has degraded the CBC this
century, our public broadcaster is not nearly so tainted
as the BBC was by its corruption, as they enabled a
massive child rape ring almost continuously
throughout its existence as a broadcaster. The BBC's
Light Entertainment division was known since the
1940s as a home to pedophiles. Jimmy Savile was
only the most notorious and prolific, having raped
more than 1000 children in BBC studios. I did not
cry when David Cameron had Television Centre
torn down.
Jian Ghomeshi is a swine, an egotistical, misogynistic bastard with little if any empathy for other people. Throughout his career with the CBC, he let his growing power, fame, and stature justify and enable abusing everyone around him. 

He had a history of violence against women that nearly everyone in the Toronto arts scene knew. Western University’s journalism program had an unspoken rule to send no female interns to his show because he was known to sexually harass every woman in his production office. 

No one ever did anything to stop him. Whispering about his abuse of women and co-workers did nothing. Ghomeshi was only the most horrifying of the corruption among CBC idols that Jesse Brown’s investigations revealed. 

CBC’s main studio on Toronto’s Front Street used to drape three-story-tall banners of the faces of their biggest celebrities. The company’s C-suite was so in thrall to them that they enabled ridiculous levels of corruption by these untouchables. 

There was Ghomeshi, yes. But there was also Evan Solomon’s art business, Amanda Lang’s conflicts of interest in programming her own show, Rex Murphy's checks from major oil companies, Peter Mansbridge’s astronomical corporate speaking fees. CBC’s moronic marketing strategy of building the station’s image around super-celebrities created a culture of entitlement and godliness among that cadre of ten or so personalities.

Ghomeshi will probably restart his media career on the Men’s Right Association lecture circuit, and become everything that Roosh V pretends to be. He can easily remake himself into a leader in the anti-feminist movement, the MRA and Gamergater’s own Donald Trump. 

He will have plenty of fans and supporters, and probably crowdfund more money for new projects in less time than DeCoutere or anyone else from Trailer Park Boys ever could have if they tried.* This greasy, misogynistic swine – if he survives his June trial without prison time, as is likely – will probably rebound faster than any of the other disgraced former gods of my country’s incurably corrupt public broadcaster.

* And Trailer Park Boys is a fucking masterpiece.

In all these ways, we are all complicit in the crimes and corruption of Jian Ghomeshi. We aren’t going to prison either. But what else will we do?

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