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.