AFTER NOT GUILTY
On Sexual Assault and the Carceral State
March 25th, 2016
by Katie Toth
“I find Mr. Ghomeshi not guilty on all these charges,” a judge said yesterday morning in an Ontario court. Just over a month earlier, Jian Ghomeshi—the former radio host who had been a feminist hero to those of us who only knew him by his interviews with the likes of Toni Morrison and Joni Mitchell—had been at the centre of a trial for allegations of multiple counts of sexual assault and choking.
Before Ghomeshi was acquitted, there was already a general sense from the disastrous proceedings that he was not going to be found guilty of any crime. For presiding Judge Horkins, a stream of new evidence on the stand that witnesses hadn’t remembered or discussed with lawyers first called their credibility into question. Reporters, including me, wondered why the Crown hadn’t asked the witnesses more questions or investigated more thoroughly before bringing a case forward—if not for themselves, then for the witnesses’ sake. At the very least, why had they not prepared better to prevent wasting the time of a busy court system?
In response to the low rates of conviction in Canadian sexual assault cases, some legal commentators have suggested changing the standard of proof for these crimes from a beyond-a-reasonable-doubt standard to a balance of probability, with reduced penalties. Another suggestion has been to increase limits on the ability of defense lawyers to do their job, which is, by definition, poking holes in the trustworthiness of any accusations levelled against their client and keeping them out of prison. Other experts have dug in their heels, pointing out that conviction and acquittal rates for sexual assault are similar to other violent crimes, describing the courts’ adversarial approach to fact-finding and burden of proof as “one of the very institutions that makes civil society possible.”
Meanwhile, I have been wondering: Is this it? Are these our only choices?
Ardath Whynacht, a professor of sociology at Mount Allison University specializing in criminal justice, is asking herself the same questions.
Whynacht says a guilty verdict of a high-profile figure accused of assault would have felt “like a ‘win’ for victims” of sexual assault around the country who don’t see their experiences taken seriously. “And I don’t want to minimize how important that is,” she says, in an email. “But at the same time, I think we need to question whether or not a guilty verdict is ‘justice’ for sexual assault.”
“Does it help us heal? Does it help the offender come to recognize how and why they learned that this behaviour was acceptable? Does it empower both the victim and offender to transform their communities?”
There are other options. Lauren Chief Elk, an Assiniboine feminist who co-founded the hashtag #GiveYourMoneyToWomen, says she’d like to see more “monetary justice”—compensation to victims of sexual assault, directly from the people who perpetrated violence. (That’s something that some Canadian lawyers have explored, too; they’ve suggested letting the Crown pursue civil cases against sex offenders and sue for monetary compensation on behalf of victims in court).
“People don’t see the actual financial cost to being raped,” she says. Therapy for PTSD is expensive. You can lose your job or your scholarship when you’re falling down the rabbit hole of trauma. If you were close to your attacker and need to get away from them for your safety, restarting your life can mean a plane ticket, a damage deposit, two months’ rent up front. “This is an actual tangible material means of justice. Money can fix the wrongs that have been done more than a prison sentence can.”
Elk also wants to see people respond to sexual assault by “building support networks and systems of friends and family” who will focus their efforts on helping the victims they know, instead of convicting perpetrators. “Literally, just asking victims, what would you like to do?”
In some communities, survivor support networks are set up so that people can try to find support or protection outside of the courts. In Philadelphia, members of the Philly Survivor Support Collective work with people who’ve been sexually assaulted to help them figure out what they want, like safety or money for therapy, and how the community can rally to help make that happen.
Then there’s the task of rehabilitating perpetrators of violence. It’s difficult and emotionally draining, but it works.
Canada, for example, has a world-renowned program called Circles of Support and Accountability (CoSA), which provides group counselling for sex offenders and keeps an eye on the offenders in the community, to make sure they don’t reoffend. The program has been emulated in countries around the world, like South Korea and the United Kingdom, but funding for the program was severely cut under the Harper government. Existing research shows that offenders in CoSA are 80 percent less likely to reoffend than those outside the program.
Work like this is often referred to as “restorative justice”: a system that works to repair the harm done and prevent it from reoccuring, rather than just punishing the people who caused it. There’s an idea that this kind of approach is soft on crime—letting perpetrators get away with something heinous.
Whynacht says that’s a myth.
“I have worked with men and women in prison who have spent years on suicide watch after coming to terms with how they have harmed their victims. After they accepted and acknowledged the harm they have done, they were in tremendous pain,” she writes. “Putting someone on a ‘time out’ in a cell for three years is letting them get away with it. It doesn’t hold them accountable to the actual harm.”
And it doesn’t protect future victims: “If we want to repair the damage done, we must fund programs that help [offenders] heal and address their own wounds. We must resource programs for men that teach different forms of masculinity so that they can be accountable for their actions … Sexual assault is pathological.”
Ghomeshi’s acquittal leaves the lingering question of whether carceral feminism itself—the move to achieve gender equality, security, or fairness for sexual assault survivors through courts and prison lockdowns—must now go to trial. Because a lot of times it looks like that movement hurts more than it helps. It hurts survivors, left deciding whether or not to subject themselves to public scrutiny. It hurts perpetrators of violence, who continue their lives without the kind of real accountability that makes a person become whole. And it hurts the rest of us. Because while for the witnesses, Ghomeshi and their respective families, this trial was deeply personal, for spectators this was a public show—state-sponsored theatre giving many people the impression that if they are sexually assaulted, it won’t be taken seriously.
Perhaps, then, it’s time for us to consider something entirely different.