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.