Ghomeshi Acquitted on All Charges: The Legal System’s Failure to Address Rape Trauma Syndrome in Prosecuting Sexual Assault

May 12th, 2016

Jian Ghomeshi 1

By Kate Ross

 Last month, Canadian radio celebrity Jian Ghomeshi was acquitted of rape and assault, after three women who came forward faced antagonistic cross-examination on their memory lapses, delays in reporting the abuse, and failure to mention subsequent interactions with Ghomeshi.[1]  The complainants offered evidence that these gaps were irrelevant to the assaults or symptomatic of emotional confusion and trauma that often accompany experiences of sexual assault, but the judge found them fatal to the complainants’ credibility nevertheless.

The complainants’ humiliation and the verdict sparked worldwide outrage on behalf of all survivors of sexual assault, triggering protests, heavy media coverage, and over 13,000 tweets embedding the phrase “#IBelieveSurvivors.”[3]

In light of our current national conversation exposing “rape culture,” it is time to explore how the application of the rules of evidence during rape trials fragments women’s stories, reinforces gender stereotypes, and not only undercuts, but exacerbates women’s trauma.  Rather than a path towards recourse, the witness stand can be a source of new harm, where survivors have no choice but to tell their stories to the jury according to rigid courtroom procedure consistent with false but widely-held assumptions about rape.

The familiar image of a female witness whose credibility is attacked has been part of our cultural imagination for hundreds of years.  Seen as early as 1536, Anne Boleyn was beheaded for adultery and treason against King Henry VIII of England, when her political adversaries used biased jurors and fabricated evidence to undercut her assertions of innocence on the stand.[4]  More recently, HBO’s documentary ‘Confirmation’ revisits the fraught Senate hearing of Supreme Court nominee Clarence Thomas in 1991, where Anita Hill’s forthright testimony against him for workplace sexual harassment was met with suspicion and ultimately set aside.[5] Ghomeshi’s recent acquittal is only the latest high-profile story of its kind, and owes its result to many of the same biases that have disempowered sexual assault survivors in decades past.

Judith Butler’s seminal work Gender Trouble theorizes that gender is not a static identity but “the tacit agreement to perform” a series of acts, which “always and invariably occurs” under a “situation of duress” to conform to social norms, or risk hostility.[6]  In sexual assault cases, cross-examination facilitates this kind of forced performance of patriarchal norms for the jury, by highlighting inconsistencies in complainants’ statements, or their inability to provide yes or no answers, to suggest that they are lying. This process is problematic because it distorts complainants’ narratives, preventing the jury from hearing an accurate account of the assault.  More troublingly, however, these tactics also feed into widespread masculinist assumptions, which routinely question survivors’ credibility, underestimate the realities of violence against women, and fail to account for the very real implications of Rape Trauma Syndrome on witness testimony.

The judge’s analysis of defense counsel’s damning cross-examinations in the Ghomeshi case provides a perfect illustration of this pattern.  The witness “L.R.” told the court that in 2003, Ghomeshi pulled her hair and smashed her head into his car’s window while kissing her in a parking lot, and then punched her in the head at his home after a dinner date.  DeCoutere, the second witness, testified that Ghomeshi choked and slapped her at his home, and the third witness said he had squeezed her neck and covered her mouth while they were kissing in a park.  Because Ghomeshi chose not to testify, he neither denied nor attempted to explain away any of these allegations.

Still, the judge concluded that each one was baseless, clinging to testimony elicited by defense counsel. During cross, the witnesses testified that they continued to communicate with Ghomeshi afterwards, and could not give straight answers about minor factual details of the alleged assaults over a decade later. The judge stated that L.R.’s inability to remember whether she wore hair extensions, explain whether she was “pulled” or “thrown” to the ground, and account for subsequent flirtatious emails, uncontrovertibly showed that L.R. fabricated her story. The Judge wrote of one of the complainants:

The expectation of how a victim of abuse will, or should, be expected to behave must not be assessed on the basis of stereotypical models. . . Under cross-examination, the value of her evidence suffered irreparable damage. Defence counsel’s questioning revealed inconsistencies, and incongruous and deceptive conduct. L.R. has been exposed as a witness willing to withhold relevant information from the police, from the Crown and from the Court. It is clear that she deliberately breached her oath to tell the truth. Her value as a reliable witness is diminished accordingly.[2]

This type of negative inference about complainants’ trustworthiness in sexual assault cases does not properly account for the impact of Rape Trauma Syndrome on victims’ ability to convincingly testify in court.  First described in the 1970s by Dr. Ann Wolbert Burgess and sociologist Lynda Lytle Holmstrom, Rape Trauma Syndrome is a form of post-traumatic stress disorder applicable to all types of sexual assault, consisting of two phases of symptoms, beginning in the hours following it and potentially lasting for years.[7]  First, during the acute stage, victims experience a range of responses from hysteria, to emotional numbness, to disorientation.  Then, after a few days or weeks have passed, victims enter an outward adjustment stage, during which they might appear to resume their normal lives, but suffer internally as they begin to truly process what happened and struggle to cope.  This delay explains why some victims appear numb or subdued after the attack, wait months or years to report it, and continue to experience emotional pain long after the incident.

Current research suggests that this progression is neurologically-based.  Hormones released during traumatic events like rape disrupt orderly memory storage, coding information in a fragmented, disjointed manner, which interferes with smooth recall.  Thus, even though the memories are accurate, they are difficult to retrieve, process, and verbalize.  As a result, victims struggle to  explain what happened to them in a coherent way, from the moments following the attack to the day they testify.[8]  This debilitating condition speaks directly to L.R.’s mix-ups and seemingly illogical attempt to maintain contact with Ghomeshi, as she slowly came to terms with what he did to her.  However, the judge did not mention or consider this explanation in weighing her credibility, assuming instead that she made everything up.

Prosecutors should introduce expert testimony on Rape Trauma Syndrome whenever possible, to prevent jurors and judges from subscribing to sexist stereotypes if a complainant’s seemingly odd behavior might otherwise cause them to disbelieve her claims.  In New York, while this evidence cannot be used to prove that the complainant was actually raped or assaulted, courts have admitted it for the limited purpose of explaining the complainant’s behavior, to assist the jury in assessing her credibility.  For example, in People v. Taylor, the court allowed a mental health professional to answer hypothetical questions about Rape Trauma Syndrome to explain why the complainant appeared calm after being raped, and hesitated to identify her attacker, even though she had known him for years.[9]

Such testimony could have changed the outcome of the Ghomeshi trial, rehabilitating the witnesses after vicious cross-examination.   In our adversarial legal system where the evidentiary rules can make the process of testifying almost as painful and humiliating as the assault itself, this tactic is crucial to promote just outcomes and prevent the rule of law from continuing to subjugate women. 


Sources Used: 

[1] Jian Ghomeshi Trial’s Not Guilty Decision Triggers Outrage, March to Police Headquarters, CBC News (Mar. 25, 2016), http://www.cbc.ca/news/canada/toronto/jian-ghomeshi-judge-ruling-1.3504250.

[2] Her Majesty the Queen v. Jian Ghomeshi, Toronto 4817 998 15-75006437, (Ontario Court of Justice, Mar. 24, 2016), available at https://www.scribd.com/doc/305846901/Ghomeshi-ruling-full-text.

[3] See Jian Ghomeshi Trial, supra note 3.

[4] E.W. Ives, The Fall of Anne Boleyn Reconsidered, Eng. Hist. Rev. 651, 651-55 (1992), available at http://ehr.oxfordjournals.org/content/CVII/CCCCXXIV/651.full.pdf+html (654-55)

[5] John Koblin, HBO’s ‘Confirmation’ Revisits Anita Hill, Clarence Thomas and Drama in the Senate, N.Y. Times (Apr. 13, 2016), http://www.nytimes.com/2016/04/14/arts/television/hbos-confirmation-revisits-anita-hill-clarence-thomas-and-drama-in-the-senate.html?_r=0

[6] See Judith Butler, Gender Trouble, Feminism and the Subversion of Identity, 139-141 (Routlege, 1990); Michel Foucault, The History of Sexuality, Vol. 1: An Introduction, 8-12  (New York: Vintage, 1990).

[7] See Lisa Friel, et al., Sexual Assault Trial Manual Committee, New York Prosecutors Training Institute, Inc., Sexual Assault Prosecution Manual at 12-4 – 12-6 (2016).

[8] Rebecca Campbell , Ph.D., National Institute of Justice, The Neurobiology of Sexual Assault (Dec. 3, 2012) (transcript available at http://nij.gov/multimedia/presenter/presenter-campbell/pages/presenter-campbell-transcript.aspx).

[9] See 75 N.Y.2d 277 (1990); see also People v. George, 277 A.D.2d 327 (2nd Dept. 2000) (affirming that rape trauma syndrome evidence is admissible to “aid the jury in understanding the unusual behavior of the victim after the rape had occurred” where the 13-year-old victim waited a week to report the rape to a school counselor and did not tell her friends or family due to fear and embarrassment); People v. Maymi, 198 A.D.2d 153 (1st Dept. 1993) (admitting Rape Trauma Syndrome evidence to explain why the victim waited two weeks to tell her mother and the police she was raped, even though she told her boyfriend the next day).