The headline in today’s Toronto Star says that the third complainant to testify in Jian Ghomeshi’s sexual assault trial spotted a “pattern” in Ghomeshi’s behaviour that she recognized in her own experience.
But will the trial Judge be allowed to take note of the same kind of pattern?
What stands in the way of this assessment is the possibility of collusion between the three witnesses against Mr. Ghomeshi.
And by “collusion,” I don’t simply mean a conspiracy to lie. Collusion in law can include the kind of inadvertent tainting of someone's evidence coming from the repeated exposure to another person's version of events.
There was enough potential for this in Ghomeshi’s case already, given its high profile. The witnesses against him spoke to media outlets and newspapers, one after the other, and read each other’s stories.
There can be a good side to all of this, to be sure. We want victims of sexual assault to come forward. But a potential witness needs to be protected from being tainted by the memories, experiences, and biases of other witnesses.
That didn’t happen here.
More than that, two of the main witnesses against Mr. Ghomeshi, Lucy Decoutere and complainant number three, began an email and message exchange after Ms. Decoutere came forward. That led to 5,000 emails and messages over an 11-month period.
That’s about 15 messages a day. Unfortunately, the content wasn’t just “hello, how are you?” They talked about their allegations. They shared their mutual dislike of Mr. Ghomeshi, their hope that bad things would happen to him.
All of this will undermine if not completely torpedo the prosecutor’s move to have the trial Judge weigh the three complaints altogether, and use them to support each other. After all, similarities are not coincidental if a witness has talked to or consumed another set of complaints. Tainting, collusion, not to mention mutual bias removes that argument.
Some may see this as another way in which the justice system is stacked up against sexual assault complainants. This argument is being made as the Ghomeshi trial has taken centre stage.
Perhaps instead it can be seen as a cautionary tale about how to protect the integrity of a criminal case.
Cases on point: