National Post Barbara Kay: ‘Believing women’ isn’t the same thing as proving guilt

National Post - Wednesday March 30th, 2016

Chris Young/The Canadian Press
Jian Ghomeshi arrives in court on Thursday.

Reading Justice William Horkins’ preamble to his judgment following the Jian Ghomeshi trial, I marvelled anew at the testimonies of the three women accusers and the cultural revolution they represent. In a pre-feminist era, it is possible a woman would have lied in court. But the odds, in 1965 say, of three women with apparently slam-dunk cases pre-trial all being exposed on the stand as such unreliable witnesses that a man of proven dubious character could walk free are virtually nil.

Indeed, the case likely wouldn’t have seen trial. Because the police and prosecutors would have gone over the witnesses¹ stories with a fine-tooth comb. They would have followed up inconsistencies. They would have pressed hard — too hard, many say — to uncover weaknesses in their case. Fearful of looking like the courtroom idiots the Crown did in Ghomeshi’s case, they would have done their job.

According to one poll, 39 per cent of women and 30 per cent of men believe Ghomeshi should have been convicted. What is wanted by these reflexively chivalrous respondents is not Justice, but Social Justice. Justice demands evidence, facts and truthful disclosure to ensure that guilt is established beyond a reasonable doubt, with the understanding that it is preferable for a few guilty people to go free than that the innocent should be falsely incriminated. Social Justice, on the other hand, demands payback for the collective sins of dominant power groups (in this case men, and a shame he isn’t white besides) against victim groups, in this case women.

When Social Justice lies in the balance, narrative, symbolism and “her Truths” carry greater moral weight than — you know — the truth; and the “preponderance of the evidence” (51 per cent) is considered enough for condemnation. Which is why so many accusations of rape on campus see the accused widely seen as guilty unless proven innocent. But innocence is nearly impossible to prove under accuser-skewed “preponderance” campus rules, explaining why these cases often fail miserably in Criminal Court.

Adherence to the “women don’t lie” principle, which after years of relentless activism has become the basis of police and prosecutor training courses and handbooks throughout the land, is having the doubly negative effect of tying law enforcement hands while encouraging bad-faith accusations. False reports of sexual assault are rare, but they do happen, and for many complicated reasons. The police and prosecutors must never forget that, and do their jobs — seek the truth — accordingly.

I can well understand the anger and frustration unequivocally victimized women must feel seeing Ghomeshi walk even temporarily free (he still has another trial to go). But whose fault is it that he won this round? The judge? No, he did his job. Ghomeshi’s defence lawyer? No, she did hers. The problem here is simple: when all the testimony was taken, and all the witnesses cross-examined, the inconsistencies and last-minute revelations left no realistic chance of the judge concluding that no reasonable doubt existed as to Ghomeshi’s guilt. And those inconsistencies and revelations should never have come out as late as they did.

We’d see less waste of court time and money if the Crown went back to doing its job unburdened by political correctness, and we’d see greater respect for “truth and nothing but the truth” if punitive teeth were applied to Section 131 of the Criminal Code describing perjury as the “intent to mislead … knowing that the statement is false.”

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