Have you ever had a moment when you suddenly realize that your memory of an event is not actually what happened?
A few years ago I was talking to someone about a pretty life-altering event that happened when I was 13. I’m not going to describe it in detail because it’s not wholly my story to tell, but I will say that it was traumatic and was something that completely upended my life. Anyway, this person that I was talking to was also present for this event; not only that, but they were already an adult at the time and had access to information that I didn’t.
As we were talking, it became clearer and clearer that my memories were not accurate – my broader understanding of the event was correct, but large chunks of what I remembered were not. Some of my memories were distortions based on a teenager’s misunderstanding what was happening, some memories of key events were just plain missing and, most disturbingly, some memories were of things that just plain didn’t happen.
I can’t tell you how disorienting it was to realize all of this. Facts about myself that I had believed to be real were not; my life story was not the one that I had been telling and re-telling for over a decade. I felt frantic – if these things weren’t true, then what else about me wasn’t true? And how had I wound up with all these inaccurate memories? Was it because at my very core I was, in fact, a liar so brilliant and sneaky that I had managed to lie convincingly to myself?
No. I was just a fallible human being with a fallible human memory.
Trauma is messy. Memory is messy. At the best of times, the way we remember an event is like watching a badly pirated copy of a movie – scenes get deleted or happen out of order, nonsensical bits are added in, and most of the dialogue is wrong. Add trauma into the mix and things become even more confusing. None of us are credible witnesses, not even of our own lives.
And yet our judicial system relies around the idea that witnesses must be credible, especially in the absence of physical evidence. If a witness changes their story or neglects to disclose parts of it then the rest of their testimony will likely be disregarded – at best they might be considered unreliable, at worst someone who is deliberately committing perjury for their own personal gain.
I wasn’t going to write anything about the Ghomeshi verdict, but I’m here because I need to ask all of you a serious question: how on earth do you expect someone to reliably recall traumatic events from thirteen years ago? What his car looked like. How they wore their hair. Whether the slap came first or the punch. The exact date. The contents of their emails. What they said, what they did, how they acted and reacted.
If you were put on a witness stand today for something that happened to you in 2003 – something that for a long time you had no intention of disclosing or maybe even remembering – how accurate would your testimony be? If you had to tell the same story several times over an 18 month period, can you be sure that it would remain perfectly consistent the entire time? How would you fare when faced with a cross-examiner who has access to old emails that you long ago deleted? How well would you do when confronted with a highly trained professional whose only job is to make you look bad?
I keep seeing people calling the witnesses in the Ghomeshi case “liars;” I see people crowing that these women deserve whatever is coming to them, that this is what you get when you commit perjury. No. This is what you get when the justice system expects victims to have perfect recall of traumatic events that happened more than a decade ago.
I’m not a legal expert. I don’t have any brilliant suggestions on how to overhaul the judicial process. All I can tell you is that the system we have now is so fundamentally broken that survivors of abuse and sexual assault stand almost no chance of seeing justice done. Even worse, they can expect to see their lives picked apart and disparaged on a national stage, often by the very system they thought was in place to protect them.
The judge presiding over the Ghomeshi case wrote that this case illustrates the need to avoid the “dangerous false assumption that sexual assault complainants are always truthful,” and yet I have rarely if ever seen that assumption play out in court. Instead, our legal process is based on the idea that the defendant is innocent until proven guilty – which means that often the complainants are treated as if they’re guilty of lying unless they can prove otherwise.
I believe the women who testified against Ghomeshi. Yes, still. I also believe the other women who spoke up anonymously but ultimately chose not to talk about it publicly or press charges. I believe anyone who trusts me enough to disclose allegations of assault or abuse to me.
What I don’t believe is that this is the best our courts can do when it comes to violence against women.
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The Belle Jar 
I would suggest that you are being overcritical of your memory at the start of your Post. Two people can remember different versions of the same incident, and both of them can be accurate. The difference is simply their perception of what happened, and their perception would be driven by numerous other factors.
As for the Ghomeshi question? I believe that I have a pretty good long term memory (short term sucks!), but I also recognize that over numerous years, the details being recalled will take on different characteristics. I can remember clearly being t-boned on my motorcycle by a car which ran a stop sign. I am no longer certain where about the car hit my bike but, as I walked away from the accident, I must assume it probably clipped my back wheel. My assumption will probably be a fact in 10 years time… but is it??? Our minds are tricky things! 🙂
Well spoken, well written.
I just want to reply with a million hearts. But I am at my computer which does not have an emoji keyboard.
the reality is that this case had no business ever going to trial
The idea that a large segment of the feminist movement thinks a man should go to jail is scary
There was zero evidence except for the sketchy testimony of three acussors.
Instead of trying to change the justice system, more time should be spent educating women on what they do after being sexually assaulted to increase the chances of their predators being prosecuted
Yes a “person” who commits a crime should face the consequences. It’s not just “feminists” wanting to put “men” in jail.
Your comment is absurd: “Instead of trying to change the justice system, more time should be spent educating women on what they do after being sexually assaulted to increase the chances of their predators being prosecuted”
are you serious?
How much time should be spent educating men NOT to sexually assault?
I’m completely serious.
You’re never going to change the justice system. They’re never going to lower the burden of proof for sexually assault cases.
Ghomeshi is guilty as fuck but he got off because
1.) Witnesses didn’t come forward quick enough
2.) Didn’t write down key details of their cases
3.) Kept in contact and wrote love letters to him after the fact
If we told women, look if you want your predator to spend time in jail you need to:
1.) Go to the police and / or hospital ASAP
2.) Don’t maintain any contact with your predator after the fact
3.) Write down all information as clearly as possible as soon as possible
I think if you did that, more guys would end up in jail. And that would be a good thing….
Men already know they shouldn’t sexually assault. Men also know they shouldn’t rob banks, pollute, or kill people. But some people choose to do it anyways, for a variety of reasons.
Again. Show us evidence that an assault took place. I will happily lead the charge down to Ghomeshi’s house and demand his surrender. The problem is….there isn’t any. Not one little bit. And the media repeating that “Not guilty doesn’t mean innocent” doesn’t equate to the man MUST be guilty either.
Ghomeshi has lost his job. Ghomeshi has lost his reputation. Ghomeshi has lost any standing he had in the community. And in the eyes of the law, he has done nothing wrong, and not one single person can prove that he did.
You can believe the witnesses all you like. But isn’t it sexist to default to a “I believe the women” point of view when there is absolutely no evidence that anything happened in the manner they claim it did. Why am I a “sexist, misogynistic prick” for saying that, In the absence of evidence to the contrary, innocent until proven guilty still should have meaning? If he’s guilty, prove it. But if you can’t prove it, and have absolutely NO factual basis to support your allegation, then you have no more standing to claim Ghomeshi is guilty than I have to claim your mother was a snowblower!
The problem with the system is that even if a woman does everything “right” after being assaulted, they often are still not taken seriously. Ex: https://www.facebook.com/theglobeandmail/videos/10153998154373904/
obviously, you’re a mysoginist saying this!! this is what women have been hearing forever and it is why only 3 in 1000 reports of sexual assault get convicted… and the feminist movement “thinks a man should to jail” … and I agree…men who rape, sexually assault, hit, smash, emotionally abuse women should go to jail….but it almost NEVER happens in sexual assault cases… there are lots of men who DON’T rape, sexually assault, hit, smash or emotionally abuse women… and they are supportive of women… they are “feminists”
“The idea that a large segment of the feminist movement thinks a man should go to jail is scary.”
And then:
“,,, more guys would end up in jail. And that would be a good thing….”
THE DEFENSE RESTS, YER HONOR!!
If a lack of evidence is an issue then maybe the solution is to do something about the metric crapton of rape kits that are backlogged.
Also stop automatically assuming that women are intentionally lying when their accusations aren’t proven.
Or maybe we could do something about all those rape kits that aren’t being used so that we actually have reliable evidence.
And maybe stop assuming women are automatically lying if their accusations aren’t proven.
Interesting take, I know distortions in memory can happen. It sounds to me that you are speaking here about interpretation. The why of it more than what. This is where many would try to rest their legal defense. They could say the victim’s memory of a trauma occuring is accurate, but not their memory of the circumstances or reasons. I think we have to be careful here. Or at least weigh what options for justice are shifted by how we interpret things. A perpetrator could get off with a charge of mere negligence. It’s also important to consider whether adult bystanders have a vested interest in challenging your memories. I speak as a survivor who happens to be gifted with with a memory for details. I remembered trauma events in addition to the perpetrator’s attempts to confuse my memory. I believe a child’s ability to witness far outweighs any adult’s attempt to explain things away. In fact, I think people wouldn’t pull the you’re just a kid card if they weren’t terrified by the accuracy of children’s memories. Just my thoughts on this.
A long time ago a young man took a very young goat/a kid. along with a group of children to the nearby river. He held the kid under the surface of the river waters and while all the children watched the kid became still and dead.
The young man asked of the children, ” why did the goat die?” The children cried out, “you drowned it… You killed it .. ” and ” you held it underwater too long” . Then the young man said, no ” it was the river that drowned the small goat”. You see the river does not have to support the life of a goat, And there’s no room for anyone at the table of the river but the fish and its own. Goats can’t live underwater. Could it be starvation neuroses ? But you are right I imprisoned the little kid in the river too long. I did this for you. Who creates prisons zoos and slave markets? Do two wrongs make a right. I don’t have an answer , maybe you do. but scripture says “and money is the answer to everything. – and- the love of money is the root of all evil . But ” why don’t we do it in the street?”..sang the Rolling Stones. Some things we don’t share mommy says, like hankies, toothbrushes medicine chewed chewing gum etc. But now that “everybody is growing up”.. Beatles song refrain. Marriage and death penalty or Marriage and life in prison are not the same word yet if we fail —-the socioeconomic prisons we must live in and to quote a girl child of her three year old wisdom-“I am not a princess! but on my birthday I am.” And will you have a prince then?, she was asked, “oh yes” she replied, “but sometimes its the wrong prince.” forgiveness .
Trauma is a strange thing. When it actually happens, the mind somehow manages to get over it in no time. But decades later, it starts replaying the whole thing making it look much more terrible than it actually was. Memory is an unreliable thing. It gets tainted by myths with time. It doesn’t make the person a liar. It is just the mind’s way of filling up gaps in a memory that time creates.
It’s quite tough to recall a childhood trauma because of the emotions clashing, the child versus the adult, I feel. One shouldn’t be too hard about themselves for we are humans and falter. Does that make us less humans or liars? I am not very sure. But, I do have problems remembering things in a completely accurate manner.
Really well done with this post! Thank you for writing this. Thank you for being so thoughtful. Hugs to you for what you endured and for who you are today. Thank you.
“All I can tell you is that the system we have now is so fundamentally broken that survivors of abuse and sexual assault stand almost no chance of seeing justice done. Even worse, they can expect to see their lives picked apart and disparaged on a national stage, often by the very system they thought was in place to protect them.”
Exactly. And you know what is the only thing one can do when the reality is this one? To do justice yourself. It’s very simple. For the moment, I cannot see any other solution, if we exclude shutting up and bearing it all.
haven’t followed this story in depth but what you’re telling me is that the defense did a better job of rattling the witness/plaintiff than the prosecution did of preparing her for such a cross-examination?
Bravo and very well said. Out of all of the Ghomeshi things that I read, saw, or choked over yesterday, this one is the one I re-ran my computer history on to read again. Yes, we as humans are the least credible witnesses aren’t we. That’s the line that stood out to me the most. You have presented the argument very well and as I read this a second time I wondered, maybe one of the laws that needs to change is that judges undergo sensitivity training. It seems there is a pervasive lack of understanding of victims in the system. On the other hand I wonder, is this a genuine lack of understanding, or a willful misunderstanding. Personally I think Horkins gets victims. He just didn’t want to in this case. I think this was one man protecting another here. Very well done, a standing ovation from me. Thank you!
About 16 years ago when I was in my 40s, a man I barely knew groped me on my front porch. I remember the shock and sense of violation but everything that followed is a total blank. To this day, I don’t recall what I said or how I got rid of him.
I would hate to live in a country where the legal system does not expect “victims to have perfect recall of traumatic events that happened more than a decade ago.” The whole basis of reasonable doubt expects perfect recall.
It is good and well to understand that perfect recall of traumatic events diminish as time passes, but let’s help women feel comfortable stepping forward when their recall is fresh, and the chance of misrepresenting the events is reduced. Let’s not suggest that the legal system need to be overhauled, and that the problem lies there.
Your view is unfortunately tainted with an imperfect understanding of due process. But you admit you’re not a legal expect. Still, that doesn’t excuse you from educating yourself on due process before criticizing it. In the words of CBC’s Neil Macdonald, “What I heard today was a senior jurist behaving with the rigour expected of someone in his office.”
There are issues around this that have been highlighted that definitely need to be addressed so that we bring more justice to issues of sexual assault, but the legal system is not one of those issues that needs to be better, as you suggest.
I was sexually assaulted while working at a hockey game when I was 16 years old. I blocked the memory until something came up in therapy and it came back and I broke down. But even when it did come back it was in bits and pieces and some of it was out of order. Trauma does effect memory and no victim should ever be expected to have a perfect recollection of events.
I really wanted to make this comment somewhere today but I noticed that comments were not available on many articles.
I believe these women. Not just the ones who testified. There are many others and even one man came forward. It’s kind of like the Cosby case. No one believed them either. Then more and more women started to come out.
As much as I believe and support these women, I also believe that this should have never been brought you to trial. It was too long ago. There was no physical evidence. Of course their stories are changing. It’s a defence mechanism. Think about it. They would probably need to be hospitalized by now if they kept reliving those horrible memories over and over. And they would have to keep reliving the memory to be able to tell the story perfectly after all of this time.
It is unfortunate that they didn’t come forward at the time of the assaults. This case never had a chance, especially since the Crown did nothing to prepare these women for court. They always do it on Law and Order and unfortunately that’s where most of us get our perception of the court room. I think that they were expecting that.
And we do need a better system of prosecuting sexual assault besides slut shaming. Maybe then women will go to the hospital.
But then again, would it do any good?
http://www.vanityfair.com/hollywood/2016/03/samantha-bee-rape-kits
What standard of evidence is anyone proposing be adopted in deciding whether someone accused of sexual abuse should be put in jail?
I wouldn’t say Ghomeshi got off scott-free, his career is ruined.
This is an excellent, thoughtful piece. However, it does beg the question: if we can’t trust our memories from years ago (and I agree we probably can’t, none of us), then how can we be sure something happened the way we remember it? Including our memory of an assault? If our memory of all the events surrounding an assault are unreliable, how can we be sure we are remembering the assault itself the way it really happened?
Somehow between the age of seven and twelve I changed the memory of the identity of boy who sexually abused me. When I was returned to the same family after five years being away the molester lost no time reminding me of all that he had done. I was shocked to realize that I had been blaming one brother for what the other brother had done. I think that may be part of the reason I took the training to become a close observer, that and the hyper vigilance that is often the result of childhood abuse.
So, here is something you probably won’t like: the difficulty recalling what happened applies in more ways than you like. Yes to specifics, but also to the very general and basic “was it consensual”. Consensual sex that they regretted, especially of a rough nature, with someone they ended up hating could easily, over time, be remembered as nonconsensual. Especially when rumors about this person are circulating, people are reaching out to one another, etc. The difficulty in recall makes it harder to determine if they truly didn’t consent, or if they just remember it differently, possibly because they very much wish they hadn’t had sex with him.
This is why testimony is tossed out if unreliable. They may not be liars, I do not think they are, but forgetting things like still appearing to have a personal interest in him after the incident can certainly appear as though a decade has changed how they viewed the encounter.
People need to understand the justice system is not something that will wait for you forever. Statue of limitations exist, and even ignoring that coming forward a decade later makes things much harder. I know it isn’t easy to come forward, I did not and likely never will with mine, but you also cannot expect that the legal system can wait for you. It doesn’t for a very real reason.
Reblogged this on Speaking Voiceless.
Thank you for this.