By Stephanie Stella
Without a doubt, the Ghomeshi trial sparked a worldwide shift in the public consciousness regarding sexual assault law, and the treatment of complainants on the stand. In the past year alone since March 24, 2016, we’ve seen cases like the one judged by Judge Gregory Lenehan, who demonstrated a profound lack of knowledge of sexual assault law, in his proclaimation that “a drunk can consent.” We saw cases like the one judged by Robin Camp, who simultaneously showed a disgraceful lack of knowledge in sexual assault, and a lack of sensitivity toward it’s victims, when he told one such person “why couldn’t you keep your knees together?”
Even in cases where there is clear evidence of the victim saying no, it wasn’t a guarantee of a conviction. Judge Michael Savaryn decided this particular victim didn’t say no hard enough. (Despite saying no multiple times, at one point she smiled and laughed her attacker off. That was more important than all of her nos, the judge decided.)
In the rare times we saw a conviction, the criminal was shown sympathy and given a pathetically light sentence, so as not to interfere with the life that they chose to ruin (hint: it wasn’t the victim’s. Nobody cares about them).
We are finally realizing what bullshit this all is, and we’ve had enough.
These cases are making the news, now more than ever – but not because they’re a new phenomenon. Make no mistake, the horrendous treatment of sexual assault complainants has been happening all along.
Historical cases are now being brought back from the dead to scrutinize the sitting judge. A ruling from 2015 by Judge Pat McIlhargey is also now being challenged, because that acquittal was due to the victim not conforming to a host of mythical stereotypes – as victims tend to do. Another ruling, this one from 2013 delivered by the Honourable Keith Yamauchi, is now being brought up for appeal, on the grounds that his decision to acquit completely hinged on the fact that the multiple complainants(!) didn’t report sooner.
The difference between then and now is that survivors are finally feeling empowered enough to fight back and speak out, both against their attackers, and against the courts who demonize them. Finally, society is ready to make that shift, to listen, and Believe Survivors. We had to see it play out publicly before we could collectively accept that the systematic injustice is indeed real, but we finally have our proof. Yes, this is happening, and it is absolutely unacceptable. And yes, we do have more options other than being forced to lie back and take it. (That pun was not intended, but I’ll be damned if I find a more simultaneously appropriate and inappropriate time to use it.)
The point is, we are finally starting to hold our judges accountable for their catastrophic mistakes. Which is why the appeal hearing of R v. Ururyar was such an ugly slap in the face. The more things change, the more they stay the same.
R v. Ururyar ended in a conviction in July 2016. It was immediately challenged, both by the appellant’s lawyer, and by the internet. The defence had not only based their entire narrative on rape myths, which was spectacularly dismantled by the Crown; the defendant shot his other foot off with his shoddy and constantly shifting testimony. With no legs to stand on, he was found guilty. Suddenly, Justice Marvin Zuker, the judge presiding over that case, was biased! He had his mind made up the whole time! …despite having not shown any sign of bias during the trial. In fact, the defence had no grief over the judge’s conduct at all during the trial. They only complained after the verdict was released – essentially, they were being sore losers.
And so that decision was also challenged. The appeal was heard by Judge Michael Dambrot on March 14, 2017. I sat in the courtroom to listen, as I had done during the trial. Within ten minutes, the judge was already agreeing with the appellant’s attorneys, talking in a familial, jovial tone, and openly insulting Judge Zuker’s verdict. When the complainant’s side stood up to speak, the change in the judge’s tone was immediately palpable. Every comment Judge Dambrot made was criticizing, condescending, or outright rude to the Crown and the intervener. Multiple times, he interrupted or actually shushed them as they were speaking. He seemed to have already decided which direction he was going to rule, before hearing any arguments.
Remember, this was the appeal hearing for a trial judge’s verdict, on the grounds that the trial judge was biased. The irony would be almost comical, if the consequences weren’t so disastrous.
Falling right in step with the many misinformed judges before him, Judge Dambrot showed little knowledge or understanding of what actually happens during a rape trial, and – dangerously – was resistant to correction by people who actually do know the process. In doing so, Judge Dambrot actually created a bevy of new rape myths for the new age. According to Judge Dambrot (and definitely not according to reality), rape myths just aren’t used in court, and if they are, judges just simply reject them. These myths don’t influence the verdict, and they certainly are not used as the basis for ruling. Essentially, those trials I mentioned earlier, judged by Pat McIlhargey, Keith Yamauchi, hell, even my own trial… none of that ever happened, according to Dambrot’s fantasy world.
Accordingly, rape myths need not be singled out and renounced in a ruling, since apparently they play no role in these trials. We already know rape myths have no place in court, Judge Dambrot, but a look at literally any current rape trial shows we have not yet reached that idyllic point. In the meantime, pretending they don’t influence people – and decisions – is just plain naive.
One of Dambrot’s freshly minted myths is actually an already-established myth gone meta: there is already a stereotype that sexual assault complainants report their assaults to push their own secret agenda. It was one of the many myths that sunk my own trial (I was unlucky enough to have already survived domestic abuse before the rape that I brought to court). The new version? That myth doesn’t even exist.
That’s right. In Dambrot’s fantasy land, there is no myth that women report rape to advance a political agenda.
At this point, I couldn’t bear to sit and idly let this hearing continue with so many factual errors being established by the judge as truth. I yelled out “yeah, there is!” which quickly drew his rage. If we didn’t like what he had to say, he said, we can either shut up or leave. Nevermind that what he had to say was simply false. Lie back and take it. To lift a quote from the ruling in question; “power, power, power. He was the boss and he loved it.”
We know we have other options now. We don’t have to accept this. So we didn’t. We walked out, and the complainant announced she will not testify again, in the clearly inevitable event that the verdict is overturned.
So, one year later from the Ghomeshi verdict, here we have a still-too-common sight: an ill-informed judge who demonstrates not only a very concerning lack of knowledge of the basic facts of rape dynamics, but also has clear preconceived notions that he is not willing to correct. Something something the more they stay the same.
That isn’t to say we haven’t come a long way in a year. We just have a long way yet to go.