I need to talk atcha about this.
I need to discuss how Justice Horkins stressed certain legal requirements. But more so I need to write about how those requirements don't have to be met in the court of public opinion.
Instead, we can consider many points of view, including the accused's own claims, without having to put the burden of proof on the inviolability of the memories and intentions of three people after more than a decade.
I've read the decision entirely; I can see why the judge decided as he did. I can see how obfuscation of adjacent facts, changing stories, and hidden actions in a case depending solely on the reliability of witnesses doesn't meet his burden of legal proof. But at least Justice Horkins recognized that it is only legal standards: at paragraph 140 he states 'a reasonable doubt is not the same as deciding in any positive way that these events never happened' — and throughout, he carefully lays out many possible reasons for the blurred facts and intents.
And we know the defence, we've known it since the beginning: Jian Ghomeshi wants us to believe he's just a kinky guy. And that's enough, so he didn't take the stand.
Well, let's put this together, then.
Unlike the courts, we may believe the consistent parts of each woman's story and accept that the inconsistencies are still there. One woman had her hair pulled violently during an initial encounter. One woman was held and smacked in the face at least once during an initial encounter. One woman had his hands around her neck in a constricting and uncomfortable manner during an initial encounter.
We may take together these recurring methods used to test boundaries and overcome initial resistance. Testing a possible target for their reactions to violence in early encounters is a well-known tool for abusers: domestic violence doesn't typically begin with a beating, it begins with words and actions. Taken as a whole, in all three cases there was no clear consent to aggressive sensual or sexual experiences before Ghomeshi used his hands to cause these people pain.
We may remember that the accused claimed BDSM practices as a shield to accusations of assault, initially. But actual BDSM requires consent. Even when all the people involved are knowingly kinky before consent it's assault. Meeting someone at a fetish event could give one reason to think hair pulling and face smacking would be welcome, maybe, but asking first is always expected. And to impose one's proclivities on someone met through work without asking? Please. People who claim a BDSM identity are still capable of assault.
And we can recognize that the entire judicial system is hostile — regardless of the intents of those working within it — to victims and survivors. To put the burden of proof on the memories, not the claims but the details, of people is a fruitless endeavour. We don't have computer-like recall. We don't immediately remember every detail that might be important. And we tell our impressions in ways that work best for communicating with a listener, and work best for maintaining our psyches too.
These things make us human. They also make us unreliable narrators of motivations, expectations, and reactions that occurred over a decade past. The accounts told by these women, the way they were told, were not enough in the legal court. But while Justice Horkins pointed out what the court must consider, public opinion does not have to dismiss all testimony because some is flawed, nor hold each plaintiff's account separate, nor assume perfect innocence as a threshold.
I hope the upcoming cases against Jian Ghomeshi are legally successful, but I already know where I stand: with survivors and victims.
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