There has been a tremendous amount of commentary and criticism surrounding the Jian Ghomeshi trial. As we posted last week here, Ghomeshi was defended by Marie Henein of Henein Hutchison. Henein is a criminal defense attorney from Toronto, Canada. The trial involved allegations of sexual assault by Jian Ghomeshi, a well known CBC radio host, of three different women. The trial held before a Judge ended last week. After the closing arguments the Court recessed the case until the end of March to return a verdict.
What was truly shocking about the trial coverage is the amount of criticism surrounding Henein’s role in defending her client. Her involvement was seen as being somehow anti-feminist, an attack on victims’ rights, or an affront to the women’s movement. Some of the examples and summaries of the attacks are here, here, and here. The issue was so prevalent, Henein even confronted the attacks in her closing statement.
The controversy stems from Henein’s approach to discrediting the plaintiff’s claims based on their actions before and after the alleged assault took place. Critics of Henein argued that the victim’s actions before and after the sexual assault should not have been relevant. What her critics don’t seem to understand is basic criminal jurisprudence or due process. One simply cannot judge whether or not an assertion is truthful without exploring all of the facts surrounding that allegation. Witnesses who are lying rarely come into court admitting they are lying – the classic Perry Mason moment. It is our job as criminal defenders to uncover the details that show they are lying. I have been known to tell my juries, “The devil is in the details.”
The allegations in this case were not for the court of public opinion, they were allegations which if proven come with a hefty prison term. And the principles of justice that protect all of us still allow for an accused to have the right to challenge the veracity of a witness by exploring their motives to lie, the details surrounding the allegations, and whether they ever said anything differently in the past.
The issues Henein explored through cross were critical to the believability of the accusers. One such detail was the fact that more than one of the accusers tried to initiate intimate contact with the accused after the assault- a rather strange response to being victimized. The critics in turn related this kind of behavior to some form of abused spouse theory. These weren’t women financially dependent on a spouse or subject to years of abuse, these were women with no ties to the accused. All points that Henein rightfully made. Not only was she obligated to raise these issues, but any women defender worth her weight would have done the same. She was also criticized for being too aggressive on cross. That is what cross is for- it is an attack of the witnesses’ veracity- because that is how evidence is tested.
And that brings me to the other point, to suggest that Henein or for that matter any woman defender representing a client accused of violence aimed at women is anti-feminist in her role as a defense attorney is absurd. First, as a feminist I don’t want to live in a world where women have some kind of “handicap” when it comes to sexual accusations which is different that what is required of any other accusation. Additionally, as women criminal lawyers the fact that we are women is self evident, but when we are in a courtroom we are defenders first. To be anything else would be a violation of the principles of our profession and our duty to our client.