Jian Ghomeshi’s trial for sexual assault and overcoming resistance by choking wrapped up yesterday with both the Crown and defence making their final submissions. The trial has been extensively covered by the media, with many others weighing in on social media. The media coverage and public outcry over this trial shows that there is a general discontent with how we treat sexual assault cases and complainants in this country. Now, as the dust settles, we can take a step back to think about how the trial unfolded and how the impending decision will reflect how complainants of sexual assault are perceived and believed by the courts. Will the judge believe the complainants? Or will he acquit Mr. Ghomeshi? While it is counter-intuitive, the answer could well be both given that the charges must be proven beyond a reasonable doubt.
When Lucy Decoutere first came forward with allegations of assault by Mr. Ghomeshi, there was a flurry of support. The hashtag “#IBelieveLucy” gained traction as women and men rallied behind her and others affected by sexual assault. Meanwhile, outside of Mr. Ghomeshi’s trial, demonstrators held signed with slogans such as “Believe all Survivors.” Much of the commentary by advocates has centred around the need for complainants not to be discounted or discredited.
While these sentiments of unequivocal belief in survivors of sexual trauma or abuse are a completely appropriate message for twitter, they cannot translate into the reasoning of the judge. Indeed, every case needs to be decided on its own merits based on the testimony of the witnesses. The judge considers whether they gave a credible accounts of events that can be believed to the point that they are convinced beyond a reasonable doubt.
The phrase beyond a reasonable doubt, while often used, warrants further consideration and thought. It means that a judge does not have to believe or disbelieve a witness one hundred percent in making their decision, but they must be past the point of being very, very sure. While it may seem counter-intuitive, a judge can largely believe a complainant, but still acquit the accused.
Consider the case of of Maria Sosa, a woman who was acquitted last month of manslaughter in the death of her toddler daughter. In this case, the judge ruled that while he did not find that the death was accidental, he could not be sure beyond a reasonable doubt that the accused was criminally responsible. So, while he was not absolving Ms. Sosa of all responsibility, he found that there was too much uncertainty surrounding her death to not raise a reasonable doubt. In other words, despite being suspicious, he could not find that her actions rose to the level of criminal liability.
This may well be the outcome in Mr. Ghomeshi’s case. Justice Horkins may find that he believes the complainants to a certain extent, but given the issues that arose under cross-examination, that he cannot find, beyond a reasonable doubt, that Mr. Ghomeshi is guilty. On the other hand, he may find that the inconsistencies in the complainants’ statements are not material enough to form that reasonable doubt. Or maybe he will acquit on some counts and convict on others. He will no doubt carefully weigh all of the evidence to make that decision. And while many are looking at this case in terms of a bigger picture, the conviction or acquittal will rest squarely on the evidence presented at trial.
But until Justice Horkins delivers his decision on March 24, we will have plenty of time to think about who we believe.