05.11.2016 07:23 AM

Alternatives to Ghomeshi

Sounds like an indie band, eh? But, after this morning, I suspect many will be wondering if there was a better option in the R. v. Ghomeshi cases.

The first trial, as we all know, was a collision between (a) highly compromised complainants (b) a highly ineffective Crown and (c) a highly effective defence lawyer. The second trial, resolved today, won’t even go to trial.

Is there an alternative to this kind of a process? Everyone, I think, is unhappy about what happened in the Ghomeshi mess.

Here’s a summary of criminal ADR (alternative dispute resolution) approaches found around the globe (with edits made to the language used therein).

1. Victim-Offender Mediation Programs (VOM). Also referred to as victim-offender reconciliation programs (VORP) or victim reparation programs. In most cases, its purpose is to promote direct communication between victim and offender. Victims who participate are provided with an opportunity to ask questions, address the emotional trauma caused by the crime and its aftermath, and seek reparations.

2. Community Dispute Resolution Programmes (CDRP). CDRP seeks to dispose of relatively minor conflicts before trial.

3. Victim-offender Panels (VOP). VOP developed as a result of the rise of the victims’ rights movement, and particularly in relation to the various campaigns against drunk driving. They are used to provide the offender with an opportunity to appreciate human cost of their actions on victims and survivors. It also is aimed at decreasing the likelihood of repeat offenses.

4. Victim Assistance Programs. VOCA established the Crime Victim’s Fund, which is funded by fines that are collected from persons who have been convicted of offences in the United States (except for fines that are collected through certain environmental statues and other fines).

5. Community Crime Prevention Programs. The community crime prevention has included a plethora of activities, including media anti-drug campaigns, silent observer programs, and neighborhood dispute resolution programs.

6. Private Complaint Mediation Service (PCMS). This process provides for mediation as an alternative to the formal judicial process of handling summary-type offences.

Apart from these, there are also sentencing circles, ex-offender assistance, community service, school programs, and specialist courts. These programmes point towards a gradual shift from deterrence to reparation; they show the application of restorative justice.

What do you think, folks?

25 Comments

  1. Peter says:

    These are all good suggestions that might be appropriate in certain kinds of cases. They address the issue of protecting complainants from public embarrassment and the humiliations of cross-examinations. However, they leave unanswered questions relating to the gravity of the offences and appropriate sanctions, issues over which people are badly divided.

    Let’s assume for a moment Ghomeshi had been convicted on the facts as they came out at trial through the mouths of the complainants? What would an appropriate sentence have been? I think that many people who would have been content with that result would have been upset at jail time, sexual offender registry, or anything else that left him with a lifelong mark of Cain. After all, his career and public reputation were destroyed. But if he had received a conditional discharge or community service, I expect there would be howls about how the system minimalizes the lifelong psychological damage of sexual assault. Many of the outraged critics of the judgment slipped quickly into the language of PTSD, faulty memories of victims, etc., even though there was no evidence these complainants were so afflicted and the historical facts did not suggests the kinds of relationships or facts one associates with these syndromes.

    The tension isn’t just over the definition of what constitutes sexual assault anymore. The tension is over how to reconcile our expanded, even arguably technical, definition (compared to the past) with the same levels of sanction and public opprobrium associated with more “classic” violent or highly exploitative instances of abuse. If Ghomeshi and his complainants had tried to resolve things through your suggested processes, would they have resulted in much more than an apology? And would the results of these processes be made public and have career and reputation implications?

  2. gyor says:

    All horrible ideas.

    Women don’t need more babysitters, they need to be treated like adults.

    If your raped go to the police, get checked out, ect…

    If not deal with the conflict yourself.

    The only victim has been Ghomeshi, whose name has been unfairly smeared, who almost got sexually assualted by a crazied activist, and who has been drained of money for legal fees, for charges that were never sexual assualt to begin with.

    The women should be charged woth perjury.

  3. davie says:

    Acouple of dozen years ago, for my job then, I received the restorative justice training and used the techniques several times, mostly with teens. ( I once used it with a parents whose teen kids were fighting with each other…that was an intense 3 hours). I thought the process just great for sparking empathy in a perpetrator (many young teens, having to find themselves first, have a heck of time with empathy). I could never clarify for myself what the process did for victims; it might have helped…it might have had the same result as a formal trial – I was never sure.
    I wonder if there is something in civil law that can be useful here as a way to assign responsibility without the either/or choice of a criminal trial.

    I just caught Ms Borel’s comment to the media. Pretty strong comment!
    What crosses my mind, from what she said, is what the office culture is like at CBC.

  4. Sean Cummings says:

    A completely closed court system. Everything 100% private. No media. No spectators. Complete permanent publication bans. Absolute privacy for complainants and the accused.

    That might work.

  5. Carey Miller says:

    “Is there an alternative to this kind of a process? Everyone, I think, is unhappy about what happened in the Ghomeshi mess.”

    I don’t know if everyone is unhappy. I do know that the longer this went on the more disgusted I became with the media, the legal system and the professional infantalizers of women.

    The media spent time and inches blaring about Ghomeshi’s crimes as if he were a serial rapist. The legal system bent to the will of public opinion, charging Ghomeshi essentially for being a dick. The outrage industry kept up the story that women are fragile victims, unable to defend themselves and subject to irrational behaviour.

    Now the prosecution has come up with a face saving measure, preventing what would likely have been another embarrassing loss and we are starting to hear people complain that this victimizes the “survivors” again. As the father of two young women, the idea that women should curl up into balls of neurosis and PTSD on any offense infuriates me.

    Let’s face it. This was an overreach from the beginning. These were situations that should have been addresses with a slap in the face (or a kick in the balls).

    • Charlie K says:

      The use of the term “survivors” frustrated me.

      Women who survive actual rape, are survivors.

      People who beat cancer, are survivors.

      Those who made it out of Nazi camps alive, are survivors.

      The women of the Ghomeshi trial are none of the above, thus they are victims at best.

      The use of “survivors” in this context completely diminishes its value by applying it to such a low threshold.

    • Peter says:

      What do you think would have happened if the complainants had tried that sort of self-help? None of them knew they weren’t alone and the man saw himself as a god. It seems he worked with a lot of people who thought he was too. What would you have said to the complainants after they lost their jobs? Way to take one for the team?

    • gyor says:

      BINGO! I don’t think Ghomeshi ever had any intention of forcing anyone to do anything against their will, it was I believe, assuming it happened which is far from certain, he was trying to be a sexy bad ass. None of the accusations invovled rape, only one invovled any sort of intercourse, but I’ve seen people under the mistaken impression that Ghomeshi was being accused of rape, in fact no one accused Ghomeshi of that.

      One of the accusations was during a consentual make out session Ghomeshi pulled on his accusers hair. You needed to go to court for that, when a simply “whoa, dude, I’m not into the rough stuff!” could have settled it then and there.

      And if I did have daughters I’d hope I’d raise them to be stronger, more responsible women then these ones.

      You want to see a grown up women, read feminist Camille Paglia’s writing.

    • e.a.f. says:

      a slap in the face, a kick in the balls, or a lamp over the head. When some one hits you, you get up, walk away and straight to the police station to file a complaint, you don’t go back for more. None of these women “needed” this guy. they didn’t have kids together, it wasn’t as if they had no where else to go.

      The last victim who was harassed by G. on the job, her employer ought to be sued. I do wonder where her union was during all of this.

  6. Charlie K says:

    So glad this shit is over.

    Ghomeshi walks away looking like a perverted sociopath and the women walk away looking like lying, vindictive crusaders.

    Winners: Marie Henein (for being the best lawyer in Canada and an inspiration); the Canadian judicial process.

    Losers: Ghomeshi; Lucy DeCoutere and the other women involved in the case; Twitter/social media.

    • smelter rat says:

      Thanks for the mansplanation.

      • Charlie K says:

        I know of no other way.

        I can only speak from my own perspective; it may or may not be agreeable –but, again, I speak from how I processed the information that has been presented.

        As much as I would have loved for Ghomeshi to have been found guilty and become the poster boy for sexual harassment, it turns out that the situation was much more nuanced than most are willing to admit.

        Jumping down the throats of people who 1) stick up for Marie Henein for doing her job excellently in the face of accusations of gender betrayal, 2) believe that there must be at least some illusion of innocence until proven guilty rather than burning a defendant at the steak without thorough due process and 3) abhor perpetrators of sexual violence yet disagree with the context of this particular situation, is completely counter-productive to the efforts of changing the culture surrounding sexual harassment.

        Not a black and white situation; context matters and the complexity of this whole saga leaves me neither here nor there.

        • Michael Bluth says:

          I don’t think any of WK’s reasonable alternatives could have worked here because it seemed like Jesse Brown and Kathryn Borel were really on a crusade to publicly shame Ghomeshi with this one.

          This whole deal stunk. The one point that needs to be really questioned Brown as an independent ‘journalist’. Brown and Borel’s actions throughout this action make Ghomeshi an almost sympathetic figure here. Almost being the key word.

          Brown’s piece with Kevin Donovan started the feeding frenzy. One of Brown’s anonymous ‘sources’ was Kathryn Borel. Brown and Borel freely discuss being longtime friends in a podcast. Were the Star and Donovan aware of this conflict of interest in the piece when it was published? Is this conflict why Donovan has essentially cut ties with Brown?

          I don’t understand Brown and the world he operates in. In the podcast he and Borel discuss her inappropriate behaviour at the CBC when an example of which was her making a fist f*cking joke in a meeting at the office. Who does that???!!! Brown, in a random pissing contest post with Christie Blatchford today shrugs off the comment because it wasn’t a meeting for Q. Really? Why freely admit this stuff? Were they that clueless about context mattering in the court case?

          Brown was willing to comment on Blatchford’s story only if he could be off the record? Good on Blatchford for calling him on that.

          I get there are no perfect victims. Is it too much to ask for a hint of professionalism among journalists and victims?

          Still only makes Ghomeshi almost sympathetic here. I really hope Jesse Brown’s 15 minutes are over very soon.

  7. JH says:

    The media has become a medium for conviction by headline and all about the gotcha. And their hands weren’t all that clean with regard to the senate scandals either. And they wonder why their industry is failing

  8. JT says:

    I’m no lawyer but I think the process was a fundamentally flawed one-sided affair It’s a he-said she-said case,yet only one side has to appear on the stand and testify. How can the case truly be tested if only one side of the story is examined? The rich and powerful accused hires the best Lawyers money can buy, and yet doesn’t utter a word. I don’t see that as justice, or “testing the evidence” in court. I look at it as a wholesale slaughter of the complaintants in a public venue.

    • Yukon Cornelius says:

      The right to remain silent is pretty fundamental to our justice system. I know that it bothers people when they perceive that it leads to an injustice but the onus is on the Crown to prove the charge (beyond a reasonable doubt) and not on the accused to establish his or her innocence. Given that personal liberty is at stake (in contrast to a civil action where the remedy is typically damages, i.e. $$$) I think we’ve struck the right balance.

    • smelter rat says:

      Finally, a voice of sanity amongst the argle bargle.

  9. e.a.f. says:

    All good suggestions, but the thing is G. was charged with criminal offenses and they need to be tried in a court of law. its that simple, for me.

    What is truly upsetting is that the employer decided its ratings were more important than the employees. They appear to have know what was going on and didn’t do anything until they were absolutely forced to. there needs to be consequences for employers if “victims’ have complained and the employer did nothings, especially those which are a crown corporation.

    the complaintants were not only compromised but at times I felt they thought they had a new career, and wanted their 15 seconds of fame.

    There is little doubt in my mind G. did what he was accused of, however, in a court of law, its a whole other thing.

    My suggestion we start educating young people in elementary school about rape, sexual assault, power and control in the work place, how to stand up for yourself. Police and Crown need a hand out list for people who come forward to complain with the does and don’ts. it does boggle the mind how the women started communicating with each other. Didn’t the Crown give them any advise on how to proceed? Like where were all of their brains. I’m not trying to blame the Crown or victims for their behaviour, I’m trying to understand why they did what they did. It just didn’t make sense and as a result G. got a not guilty verdict.

  10. Jt says:

    I’m no lawyer but I think the process was a fundamentally flawed one-sided affair It’s a he-said she-said case,yet only one side has to appear on the stand and testify. How can the case truly be tested if only one side of the story is examined? The rich and powerful accused hires the best lawyers money can buy, and yet doesn’t utter a word. I don’t see that as justice, or “testing the evidence” in court. I look at it as a wholesale slaughter of the complaintants in a public venue.
    The courts need to change how these cases are tried. Full stop

  11. Jt says:

    Stupid iPad.

  12. I like the idea of alternative methods of resolution, reparation, repair. In my restricted field of practice, we do everything we can to drive matters away from court and toward things that better help ground and restore positive relationships and healthy communities. However, most alternative methods of resolution only work where one of the parties is not a genuine psychopath, sociopath or otherwise irredeemably narcissistic and abusive. I am not sure any alternatives would have done any better in the long-run in this case. But I don’t have all the facts; it’s just how it looks from here.

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