My only post on this topic.

A word or three-hundred of explanation and a rebuke. This will make me unpopular with a whole swack of people posting of late. But frankly there is some consciousness raising that needs to happen.

First the Rebuke:

You have to stop dog-piling on the criminal justice system just because you don’t like Jian Ghomeshi. Your “opinion” about what should or shouldn’t happen is based on a misapprehension about what that system is. You also do a terrible disservice to the people working in it who — for the most part — struggle very hard not to fuck up people’s lives. You’ll want to not piss on defense attorneys, this will save you some cognitive dissonance should you or someone you love need one later.

And now the explanation:

The expectation that the justice system is about the “victim” is to fundamentally misunderstand what the courts do (in Canada). Whether or not someone is a victim is only incidental to the court process.

When you are charged with a crime it is not a crime against the victim but against the Crown. It is the King (or Queen’s) peace which is being upset by a crime. The actual violation of the body of a person is, from this perspective, the unfortunate corollary to this.

The reason for putting crime in the context of the head of state is two-fold (as far as I can see): 1) It is an expression of the state’s supremacy over all its dominion (subjects and property) and 2) As a way to ensure that we avoid the kinds of blood feuds that chew up entire generations.

The courts are only interested in a) whether a crime can be said to have been committed against the interests of the state b) if the person accused of said crime is absolutely guilty of the offense and c) the restitution that can be extracted from the accused if found guilty.

When we start looking to the justice system for justice vis-a-vis the victims, we’re mistaking who we understand the victim to be with who the justice system understands that victim to be.

In the context of Jian Ghomeshi, once a police investigation begins, this is no longer about complainant x, y, or z (no matter how grievously harmed they may be). It becomes about the accused. It has to be that way. It has to be that way because the consequences of a conviction extend beyond a complainant’s sense of closure. In fact, closure is sometimes impossible. The victim of a sexual assault or murder cannot have those things taken, returned. The consequences of a conviction are the decimation of yet another human life (the accused) which may not do anything to alieviate the suffering of the victims. This is something which is cutely forgotten by the law and order crowd (until the cuffs are on them) but also sometimes by progressives.

The trial of Jian Ghomeshi (if there is one) will not be about any of the complainants. The moment they issue a statement to the police they stop being human beings and become witnesses. They are objects of the court. They become “exhibits” of a particular sort. Of course they are going to be torn apart. But here’s the kicker, just because they will be made out to be liars does not mean we have to accept that.

A wiser, more subtle legal mind, pointed out to me that what will come out of the trial is not a finding of “he/she is a liar”, but a finding of truth based on a rather abstract sets of rules. That truth will be a finding about which story holds up better. If, as a society, we believe Ghomeshi’s accusers we need to make the collective effort to support them through the trial. To make them understand that we believe them. (I believe them.) That a finding of “not guilty” or similar acquittal is not a repudiation of their story. Because it isn’t.

We should be talking about how to reform our legal system — to be sure. But don’t expect the current system to conform to your beliefs about who is or isn’t a victim, and how they should be treated. That system is specifically designed not to care in the way that you want it to.

Is it patriarchal? In many of its features, yes, absolutely.
Is it Just? Yes, but in very limited ways, and imperfectly so.
Am I making excuses for it? Absolutely not, been bitten by that dog, I want it dead too.

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