Marie Henein is well known to Toronto lawyers for her surgical skill at cross-examination on criminal defence files. Now, R. v. Ghomeshi has made her notorious for that ability across the country, and maybe internationally. Lawyers find themselves putting up a bulldog defence for Henein herself at dinner parties: “What do you mean, she abused the complainants? That’s condescending. This is the era of equality rights. We take sexual assault seriously, but we also accept that educated young women can handle hard questions, particularly when they have counsel, as these women do. Why isn’t their evidence to be tested like everybody else’s? In thousands of emails ignoring warnings that communicating about the trial was improper, a couple of the witnesses revealed a determination to “get” Ghomeshi. Are we to convict him on their complaints and his Facebook page alone? Changes to the Criminal Code and common law regulate cross-examination in these cases, promoting fairness to complainants. Part of Crown counsel’s job is to assure that defence cross-examination is proper.”
This “Henein defence” is premised, of course, on everyone’s right to be presumed innocent, a first principle of constitutional law in civilized countries. The presumption founds the right to make full answer and defence. But in sexual assault cases, public indignation regularly overcomes reason as in a lynch mob, and we hear this clamour to tip the balance of interests towards the prosecution. As others have noted, the Ghomeshi verdict doesn’t say “he didn’t do it,” it says the complaints weren’t proved beyond a reasonable doubt. The tumult over this recalls my experience with John Mortimer’s “Rumpole and the Honourable Member.”
I used to teach the story, which appears in the first collection of Rumpole’s fictional memoirs (“Rumpole of the Bailey,” 1978), at law schools, in my law and literature course. The story’s main focus is an allegation of rape by a young party worker in the office of the middle-aged accused, a married Labour MP. The evidence is equivocal and Rumpole’s theory is that there was no assault: the complainant wants to “get” the candidate for jilting her as a lover. My course syllabus included the story so that we could discuss Rumpole as an instance of the archetype of the lawyer as ironic champion, as well as his role in law as theatre, but also to promote a lively discussion of evidence law and the tensions it navigates.
Unfortunately, outrage overwhelmed reason. Several students were angered, like the fiancée of Rumpole’s son in the story, because of the way that Rumpole cross-examines the complainant. I was frustrated because I thought upper-year law students should understand, or come to see, that if we are truly equal before the law, the complainant’s evidence needed to be tested just like anyone else’s, occasionally these complaints are made vengefully, etc. (see paragraph one).
The story should have been pedagogically useful in that way. It puts forward, with wry intelligence and verve, the “Henein defence” in each of its details. The House of Lords of the day (and the law in Canada then) said that the accused in rape cases was not guilty if he had an “honest belief” the complainant consented, no matter how moronic or self-serving that belief was. Rumpole is appropriately disgusted by this, remarking, “There are very few women among the judges of the House of Lords.” But when his future daughter-in-law attacks his cross-examination as archaic (in the precise terms that Henein has been attacked), he asks, “Is it archaic to believe in some sort of equality of the sexes. … Give you equal pay, certainly. Let you be all-in wrestlers and Lord Chancellor. By all means! … But you’re asking women witnesses to be more equal than any other witnesses!”
This should not be as provocative as it has come to sound. On the other hand, the most effective part of Rumpole’s cross-examination is indefensible, and likely would not be permitted under Canadian law as it has existed for the last 24 years. With debatable relevance, he questions the complainant on her sexual history, and, certainly irrelevantly, on an abortion years in the past.
In class I had hoped to point out how and why we no longer permit this, but I have stopped teaching the story. Where I had meant to suggest how law evolves with the wider culture, and how it must maintain a balance of interests as it progresses (how Rumpole is both right and wrong, as we all are individually and communally, and how the law’s progress reflects that), indignation blocked thought and conversation. Youthful prejudgment and popular prejudice stood blind to centuries of cultural development.
Does it really need saying that law students, particularly, and civil society generally should confront these issues from all perspectives, to consider not just how the system operates, but also how the law evolves and how it might still improve? Are today’s young adults – our law students, soon to be guiding others through life’s most challenging moments – too sensitive to moot discomfiting issues, too already-knowing to have their preconceptions challenged and perhaps reconsidered? Has our notion of critical thinking become so cramped with anxiety that universities and post-graduate professional schools are no longer venues for the airing of complex problems? Are they all trade schools, now, or do they remain socializing institutions, guiding youth into thoughtful adulthood, when we act not on impulse and popular prejudice, but on all the evidence?
Among the civilized and sober, justice is not a matter of reflexive self-assertion, of taking a side on presumption and planting a flag there in righteous indignation. Justice tests the evidence with a steady gaze.