We’ve written about the Jian Ghomeshi trial before, here and it is worth a look back, now that the Wheels O’Justice are turning. The short form is that back in October of 2014 a very famous CBC personality was canned by the Mother Corp for engaging in somewhat violent, not necessarily consensual saucy antics with more than one woman. Since Ghomeshi’s very public mea culpa, Jian has remained, wisely, out of the public spotlight. He is now having his day in court and it is bringing to light the state of the justice system when it comes to cases of sexual assault.
Our moral position is still the same: When it comes to saucy antics, we have three rules. One, the parties involved must be of legal voting age in the jurisdiction where the saucy antics are happening. Two, all parties must actively consent to the saucy antics. Three, show some class and be discreet. Get a room.
Using our moral test, children and animals are off limits as they cannot actively consent or are not of legal voting age to consent. The rest of it, might be personally uninteresting, unhygienic, or simply too weird for words, but it is Not Our Business.
Notice we’re not using the terms BDSM, rough sex, or kink. They’re loaded words, much like the term porn is a loaded term. The reason we’re not using those terms is it is too easy to label something and then dismiss anyone associated with it, as perverts and they’re getting what they deserve. The running joke is that stroking your lover with a feather is sensual, but using the whole chicken is kinky. We’re trying to communicate the concept, not judge, as per our moral position of Not Our Business.
The hard part is consent when combined with our adversarial justice system. When it comes to what consent is, or isn’t, there are no firmly drawn lines. In the world of, let’s call it non-mainstream sexual behavior, consent is a very important concept. Someone with a ‘forced sex’ penchant would struggle and cry out for help, which is part of the excitement of being ‘forced’ to engage in various antics. From the outside it would appear to be sexual assault, but with one little exception. One person has asked the other person to ‘force’ them into a situation and given active consent to engage in that kind of scenario.
Technically, in their struggles, they have used the words stop, don’t, don’t make me, and so on to indicate their unwillingness to proceed further. Technically, this is now sexual assault as the consent has been rescinded with commonly accepted terminology. Which is why the non-mainstream sexual community have the concept of a safeword. A safeword means all activity comes to an instant halt and all restraints or other things are immediately undone, ceased, or brought to an ending. The use of the safeword means “I’m not kidding, consent is rescinded, stop immediately!” For those who engage in non-mainstream sexual play, that agreed-upon safeword is inviolate: Everything stops, immediately, all assistance and comfort is given.
With our current justice system, the behavior of the victim is just as much on trial as the behavior of the accused. There have been literally hundreds of trials where the undergarments of the victim were on display, the defense arguing that her wearing black underwear was her way of ‘asking for it’ and then regretting her choices, leading the accused to sexually assault her. After all, he’s just a man and well, you know, she’s a slut so it isn’t really rape.
(Jesus, Mary and Joseph, I can’t believe I just wrote that last sentence as it goes against so many things I hold as important in gender relations, sexuality and consent politics)
Under the adversarial justice system, the defense’s duty is to get their client off. (Insert your own joke here) By painting the victim(s) as willing participants, it removes the burden of the accused having to provide a reasonable assumption of consent. Consent means there was no sexual assault, and can we all go home now? Unfortunately, consent is a fluid concept that is rarely written down, notarized and witnessed by an officer of the court for the swearing of oaths, etc.
The problem is that our judicial system isn’t very good at consent politics when it comes to sexual behavior.
Had the accused explicitly talked with the victims beforehand and both were in agreement that this was the kind of sexual expression they were both willing to participate in, then, get a room and get to it. The caveat being if one of the people involved yells ‘Mariposa’ or ‘cribbage’ or hums the theme from Batman, then playtime stops immediately. As long as that is how things went down, then anything after the removal of consent can be considered actionable. Before that point, Not Our Business.
Which is why we see photos taken after the assault, of the accused and one of the victims being entered in evidence by the defense to show that everything was just fabulous between the two of them. If there was an assault, why would the victim appear to be happy after the fact? Why was there no rape kit done? Why didn’t the victim immediately call the police? Why didn’t she run to Emergency to get a doctor to look at the bruises, or injuries? That’s what you call reasonable doubt and that’s the defense doing their job.
It isn’t quite as vile as putting her underwear forward as evidence, or having her list everyone she’s ever romped with, but it’s in the ballpark.
This where the judge, William Horkins, comes in. A judge sets the tone and sets the bar as to what can and cannot be considered. Fortunately, Horkins looks like he has a common sense approach and will give both the Crown and the Defense some latitude in keeping with the idea that it’s not the victims that are on trial, but the accused.
Perhaps this is going to be an enlightened trial. We hope so.