On Reporting

The Right to Remain Silent

There’s a question I didn’t hear asked about the Ghomeshi case.

Maybe I wasn’t paying enough attention (I was paying a lot of attention), or maybe everyone else just knew the answer and didn’t think it was a big deal. Maybe you have to be facing a court case to obsess about it the way I did. Whatever: the question’s weighed on me.

You know those texts the complainants were exchanging? The messages about how much they’d like to bring the guy down?

What bothers me about those texts is this:

How did they wind up in the hands of the court?

We spent a lot of time discussing the content of the messages, but we didn’t question how they came to be up for our discussion in the first place.

You can see why this bothers me. As someone who keeps her life on her laptop, the idea that the things I write here could become public viewing against my will is a violation I don’t like to think about.

For a long time I didn’t look this up because I was afraid of the answer. I just added it to the pile of paranoia I’ve been collecting about the justice system. I felt safe doing this because it seemed unlikely I’d ever have to go through with a trial, and so that looming stack of scary stuff could sit in a back closet somewhere untouched.

Then last week happened, and suddenly all bets are off; that pile of paranoia is front and center in my brain and it’s starting to look pretty unstable. So I thought I’d tackle some of the bits on top.

A quick foray into the internet gave me the answers to the Ghomeshi question. Those messages between witnesses were obtained through what’s called a Third Party Documents request. What this means (and understand that this is another episode of Mary Interprets Legalese) is that defense lawyers can request access to documents that have relevance to the case (there are hurdles to doing this, but they’re not high).

What falls under the umbrella of a third party document?

They include but are not limited to “diaries, journals, and medical, therapy, or counseling records” as well as private text messages and emails.

Does this sound like fun yet?

When those messages first came to light, I heard a lot of people say, “They should have known better.” I wanted to ask, “Known better than to what?” but I had a pretty good idea. They should have known better than to seek comfort and support or to offer it. They should have known better than to display their anger.  They should have known better than to assume that their private conversations, whether with therapists, friends, family or each other, were private.

When you are accused of sexual assault, the crown-appointed defense lawyer is there to guard your rights and interests. When you accuse someone of sexual assault you are a witness in a criminal investigation. The crown prosecution is not there to represent you or your rights; he or she is there to represent the best interests of society.  Maybe the Ghomeshi witnesses should have known better, but there wasn’t necessarily anyone to tell them better.

It doesn’t have to be like this.  Although many of us like to pretend otherwise, there’s a lot of ground between the system as it stands and the nightmare of MRA groups who think justice reform means throwing men in jail at the wave of a woman’s hand.  Ideas range from the simple (appointing victims a lawyer, as is already done in countries like Germany and Denmark) to the more complex (trying some assault cases under civil law, rethinking rights around privacy, mandating better education for judges and juries) and it’s time they became part of our dialogue around sexual assault.

Because until we start talking about that middle ground, instead of pouring over private emails?  I’m starting to think that every sexual assault should end with the victim being read her rights. They’d go something like this: You have the right to remain silent. Anything you say can and will be used against you in a court of law. You do not have the right to an attorney. You have the technical right to the privacy of your sexual past, but you shouldn’t count on it. Your body is a crime scene. You have the right to seek recovery, but only if that recovery does not include destruction of evidence, contact with the person who hurt you, contact with others who have been hurt by the same person, or frank speech about what happened to you…

That’s the crux of the matter. Because to seek recovery from sexual assault requires that we speak about what has happened, and to seek justice for sexual assault requires that we not, we’re faced with a choice.

And until we get to that middle ground I keep talking about, maybe we should offer that choice explicitly: You can seek recovery or you can seek justice, but in this country they are mutually exclusive.


5 thoughts on “The Right to Remain Silent

  1. Okay. Let’s not investigate things like this then. So, with that in mind, HOW SHOULD EVIDENCE BE FOUND THEN, IF NOT THROUGH INVESTIGATION AND GATHERING EVIDENCE FROM EVERYWHERE? You say there’s a middle ground, yet you don’t seem to set it up. You’re entire argument seems to simply be:

    “You might think I’m saying that an accusation should be all that’s required to throw a man in jail, but I’m not. Having said that, that’s exactly what should be done, and if you criticize that viewpoint your sexist and need to shut up and deserve to be silenced.”

    Please, explain to me how you’re not saying that, I’m a poor stupid person whose brain works… properly.


    1. You’re sexist, not your. And your entire argument, not you’re entire argument. The question is perhaps answerable in the last two words you capitalized. Suggestions for beginning to answer it are in the paragraph beginning, “It doesn’t have to be like this.”
      The quotation marks should be taken from your middle paragraph as they are your words, not a direct quote. It is strange to me that the questions and ponderings in such a nuanced, non-aggressive post could trigger such a litany of sarcasm and false claims of victimhood. I’m wondering what could possible have made you feel so attacked.


    2. I don’t pretend to have all the answers, Percy.
      Because you don’t know me, I’ll state unequivocally and for the record that I believe strongly in a criminal justice system that retains a high burden of proof and the basic tenant that we are innocent until proven guilty. Our rights and freedoms were hard won, and I believe that they are vital to a functioning society. I do not believe that anyone should be jailed on accusation alone, and I am not interested in silencing anyone.*
      I do think that the way the justice system operates in respect to sexual assault can be harmful to people wanting to recover from sexual assault. I think that’s a problem and that we could improve it. When I talk about the middle ground in this post, I’m talking about things like assigning victims a lawyer (someone to help them navigate the legal system, which can be confusing and overwhelming at the best of times) and shifting some cases to civil court (where both the burden of proof and penalties for the guilty party are much lower). I’m also talking about maintaining some level of privacy for victims; I understand that you’re objecting to that on the grounds that we need to thoroughly investigate these cases, but when we start combing through the journals of women who have been raped, I think we’re investigating the wrong person.
      If I seem to be offering more complaints than solutions, that’s probably because I am. I put this blog together partly to document what it’s like to go through the justice system in the wake of a sexual assault, and what that’s like, unfortunately, is pretty unpleasant. I’m not explicitly advocating for any particular action because this isn’t over yet, and I suspect I’ve got a lot to learn over the next few years. I’d like to experience it, document it, and then reflect on what, if anything, I think should be changed. Does that make sense?
      This doesn’t have to be a divisive issue. Most of us can agree that sexual assault is bad and that there’s too much of it. The root causes and possible solutions are nuanced and complex, and the more voices in the conversation, the better equipped we’ll be. I don’t want this blog to alienate men.

      * I should mention a caveat here: if the level of discourse slips below a certain point – if we devolve into insults and fury – I will stop approving comments.

      Liked by 1 person

    3. The victime should never face an unfair advantage, which to my way of thinking is what our system is doing at this point. That needs to change.
      percy you need to d something. Put some woman, your mother or sister or girlfriend, etc into this story and see what you think. It might change things for you when you see the ordeal they have to go though just to report their case.


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