This post was updated Oct. 31 with some new information that has come forward, particularly about how the CBC handled this affair.
When news broke on Friday that Jian Ghomeshi, one of CBC’s biggest personalities, was taking a leave for unspecified “personal reasons”, it seemed suspicious. When news broke on Sunday that the CBC had terminated its relationship with him, it seemed unbelievable. And then it got worse: a $55-million lawsuit, and reports of eight women (oh wait, make that nine) coming forward and saying he abused them, with stories that seem disturbingly similar.
I don’t have any exclusive reporting on the subject — Toronto media personalities are not my specialty and there are plenty of Toronto journalists covering that — but I’ve been seeing so many misinformed comments on social media that I thought it would be useful to round up what is being said and make a few points to better educate those who are talking about this. I’m not an expert in employment law, human sexuality or most other fields, so I’ll try to link to experts where possible. Feel free to suggest other points or improve existing ones if you’re more of an expert than me.
We don’t know all the facts, and probably never will
It’s a simple fact of human sexuality that it happens in private, and the only people who know what happens are those participating. We’ll have the versions of the parties involved, but unless there was a recording of the event, it comes down to a he-said-she-said, and we’re left to decide which side is more credible based on our personal opinions of them, our life experiences, statistics and generalizations, and our gut instincts. Many will take an educated guess at what probably happened, but nobody will know for sure. The two parties involved might even be telling the truth as they remember it.
The additional women coming forward have turned this into a he-said-she-said-she-said-she-said-she-said etc., which establishes a pattern. But while it paints a pretty clear picture of what kind of man Ghomeshi was, each individual case is different, and each still comes down to the testimony of one party contradicted by the other.
We don’t know exactly what the CBC knew about this before it fired Ghomeshi
Many people are wondering why there was no complaint filed with the CBC against Ghomeshi. There’s one case involving a person who was at the time a CBC employee. The Toronto Star story says she brought the matter up with a union representative, who brought it up with a producer. A National Post story says she brought it up directly with the executive producer, who gave her options and didn’t seem to take it too seriously.
There are some serious questions that need to be asked about this executive producer, and about the management culture at CBC. And other companies large and small should also look at their own office environments and ensure they don’t have a culture where women who are harassed or assaulted by people in power feel afraid to come forward. It’s one thing to have an official sexual harassment policy, but it’s another to have an environment where victims of actual harassment, no matter how severe, feel they can and should come forward and report it to superiors.
The CBC issued a memo to employees after this story broke saying they will act on workplace harassment. And it has hired an outside investigator to look into this story. As it should. With a personality as big as this, and the alleged abuses going on for so long, there’s an assumption that the CBC did not do enough to stop it. I don’t know if that’s true, but it needs to be investigated independently.
Remember that it was the CBC that fired him, prompting his Facebook post, which prompted the first Toronto Star story. We don’t know if it would have come out without that.
The CBC knew something was up with Ghomeshi months ago, according to the lawsuit, this Globe and Mail story and this Toronto Star story. But at that point, Ghomeshi’s claim that this was just an ex-girlfriend trying to ruin his career did not seem so far-fetched. There was no evidence at that point that there was physical violence involved, or that there was any pattern involving multiple victims.
But when Ghomeshi showed more evidence to the CBC, including apparently one or more graphic videos, things changed, and the corporation acted swiftly to take him off the air.
There’s a disturbing piece to that Globe story, which hasn’t been confirmed by the CBC, which says the broadcaster might not have fired him if he had expressed any remorse and said he would seek treatment. (The CBC has since said it did not give Ghomeshi the opportunity to walk away without disclosing why.)
And while I think the CBC is being unfairly blamed by some, I’m not letting it off the hook. The simple fact that is that it has a responsibility to provide a safe working environment to its employees, and it looks like that was not the case. A memo sent to employees also suggests that the CBC fired him more because of the physical injuries he caused than for the allegations that he engaged in non-consensual acts with those women (though the former can more easily be proven than the latter).
Executive vice-president Heather Conway sheds some more light on what senior management knew in this Globe interview and this CBC one, and suggests in hindsight they could have done more, but there was no evidence of assault, harassment, lack of consent or anything other than an ex-girlfriend wanting to publicly embarrass him.
The external investigation is a big step toward rectifying the situation, though I’m concerned that only its recommendations might be made public.
Questions also need to be asked about the CBC’s union, particularly after this disturbing account from Kathryn Borel, the former employee who has now come out publicly with her allegations, and says the union lied (or “was carefully parsing its words” in an attempt to mislead) about what was reported to it and its representatives.
Everyone didn’t have the same opinion about this — but now they’re almost unanimously against him
The think pieces that have come out of this story have tended to start with some statement that everyone is supporting Ghomeshi or that everyone is against him, as if to act as a devil’s advocate. But actual opinion was mixed when this first game out. And it’s not that the left was on his side, or women were against him, or CBC fans were defending the institution, or kinky people saw him as a hero. People’s opinions are not handcuffed to whatever demographic group you care to impose on them.
And public opinion has changed a lot in a week. His once staunchest defenders are deserting him. His PR companies have dumped him. Even his former band has issued a statement. No one wants to be associated with him anymore, or seen to be defending him.
Most sexual assaults go unreported, and for good reason
A common comment on social media (and occasional newspaper columns) is that the people accusing Ghomeshi of sexual assault are less credible because they did not report what happened to the police. But in reality that statement doesn’t tell us much, because the vast majority of sexual assaults don’t get reported. And that’s because the vast majority of sexual assault reports don’t result in convictions. It’s he-said-she-said, and our justice system doesn’t usually consider that enough to call someone a criminal. It’s not fair, but there isn’t a better alternative that still ensures innocent people don’t get imprisoned.
And that’s ignoring the cost to the accuser. We like to think that as a society we don’t blame the victim, but it’s still more humiliating to be sexually assaulted than to be mugged. And the criminal prosecution process only adds to that trauma, as defence lawyers try to find ways to discredit her and even try to put on her some or all of the responsibility for what happened. (That’s the way it’s supposed to work in our legal system.) As Christie Blatchford points out, the identities of victims of sexual assault are protected by a publication ban when a matter is before the courts. But that doesn’t solve the problem.
And there will always be those who will doubt the accuser’s story and defend the accused. And there will always be those who, even if they believe her and don’t blame her, will look at her differently because of what happened to her. That’s why many women (and some men) choose not to come forward.
There’s plenty of evidence of retaliation from Internet trolls and others that makes a reluctance to come forward entirely understandable.
False accusations exist, but estimates of the rate of false accusations put it somewhere between 2% and 8% of reports (and the vast majority of sexual assaults go unreported). It’s hard to be certain because of the difficulty of proving whether an accusation is true or not.
That doesn’t make these accusations true. But it adds to the balance of probabilities weighing on the side of the accuser.
People exaggerate when defending themselves or making accusations against others
It’s human nature to downplay any evidence that doesn’t help make your case, anything that might mitigate your point. And you don’t have to lie to do this. This is how two reports of the same incident can be both true and contradictory.
Ghomeshi’s statement on Facebook (since deleted along with the rest of his account) seems very personal and embarrassing and therefore sympathetic, but it’s also one-sided by design. He hired a PR firm specializing in damage control during scandals, and the statement has to be read in that light, whether or not the company vetted or approved the content of the post. And even if we ignore that, he’s a veteran broadcaster who is known to have a way with words. He knows how to manipulate emotions with language.
Similarly, Ghomeshi’s accusers choose their facts. When the Toronto Star points out that the women accusing him are “educated and employed”, that’s to make them seem more credible. It’s completely irrelevant to whether what happened was consensual, but it makes a huge difference in how we see the accusers, the first of whom remained anonymous.
Sexual consent is awkward
In the movies, kisses happen without being asked for, sexual encounters tend not to involve much verbal communication beforehand. Things just happen, and we’re led to believe that consent is communicated telepathically. Even people with well-developed social skills can have trouble reading what the other person is feeling, which can lead to miscommunications. The fact that men are expected to take the initiative makes this even more problematic. But sitting down and talking about consent dispassionately is seen as unromantic. Society’s getting better at this, slowly, but we’re still far away from unromanticizing sex.
Sexual consent for BDSM is explicit and not something you can do by trial and error
People who engage in BDSM practices take consent very seriously. So they’ve learned that sitting down and having clear discussions before anything is done is important and necessary. Violent sex is something you discuss in detail in advance, not something you try out on someone and ask “did you like that?” And it’s not something you dismiss afterward if it didn’t go well.
If this was BDSM, Ghomeshi’s words and actions don’t make sense
Ghomeshi doesn’t get into too much detail about the nature of his encounters with women, and specifically who is the dominant and who is the submissive. He describes it as a “mild version of Fifty Shades of Grey” which suggests he was the dominant one. But the women accusing him are talking about him punching and slapping them on the face, which is hardly mild, consensual or not.
I’m no expert on such things, but I do know that this kind of role playing during sex is about the submissive party being in control, which is why trust is so important. Picking up girls at bars, bringing them home and asking if you can hit them doesn’t seem to fit with the way this usually works.
And those in the BDSM community also don’t see his statements adding up with those of his alleged victims, even if we believe that there was regular discussion of consent.
Add to that the fact that BDSM has been used as an excuse for violence against women before.
A first-person account posted last year that didn’t name Ghomeshi (but included enough detail about him that people quickly figured out it was him) paints a strong picture about his attitude toward consent. If we assume it’s telling the truth, it indicates someone who is terrible at reading women and doesn’t take no for an answer easily. It’s not that the actions as reported there are so outrageous — they could even be forgiven — but they are wildly incompatible with someone who asserts that he is careful about consent.
Ghomeshi’s implication that he can prove consent through text messages or other evidence is also puzzling. As Dan Savage points out, consent to X is not consent to Y, and consent can be revoked at any time, whether it’s plain vanilla sex or the most violent of BDSM.
And that’s one thing that really gets me about this: Even if we assume these women are jilted exes who consented to everything and are now changing their minds retroactively, how did Ghomeshi not see any red flags about their behaviour during their supposed regular conversations about consent? BDSM requires a heightened level of intimacy and a lot of communication, and yet we’re expected to believe that with all of that Ghomeshi missed not one but multiple partners having whatever personality disorder caused them to decide to make up stories about him.
I’m not saying it’s impossible, but if it’s true then Ghomeshi really needs to re-evaluate his approach to his sexual escapades.
Not everyone Ghomeshi got kinky with it thinks it was abuse
Sex expert Dan Savage speaks with one of Ghomeshi’s former partners who backs his claim, says they had conversations about consent, that he was careful, and that she liked what he did to her.
Savage remains skeptical, not believing that she’s lying, but suggesting that her situation is different because they happened to be compatible, and because their physical distance and regular communication meant they had more time to establish what they would do to each other before they did it.
Many things are similar with the other tales: she’s in her 20s, he was dominant and he liked to slap her.
To me, this story also suggests something important about Ghomeshi’s state of mind: If these stories are all true, then it seems as though Ghomeshi doesn’t do these things because he wants to be a monster, but he does them because he’s narcissistic enough to believe that despite everything they’ve said, the women actually like it. And that’s scary.
You can’t legally consent to assault that causes bodily harm
Legal experts point out that the Supreme Court has determined that consent is not always a defence for assault. And severe forms of BDSM, such as punching, can be illegal even if the victim literally asked for it.
This is not the same as an adultery scandal
I realize that in the media, there are tendencies to be both brief (using as few words as possible) and safe (not implying a crime has been committed when there has been no conviction), but the term “sex scandal” puts this story on the same level as Bill Clinton, John Edwards, David Letterman and other people for whom the scandal is about cheating on their wives. That makes them dicks, but it’s not illegal. What Ghomeshi is being accused of is far more serious than a “sex scandal”.
Sexual preferences are not a human right
“Sexual preferences are a human right,” Ghomeshi says, trying to put liking BDSM on par with being gay and wanting the same protections against discrimination. But while I don’t think people’s private sexual fantasies should affect their employment (if it did, we’d all be fired), there’s no “human right” to them, either in the Canadian charter or in UN treaties. What we think is protected, but what we do is not. There’s no human right to strike another person.
What’s the motive?
Ghomeshi blames the entire affair on “false allegations pursued by a jilted ex girlfriend and a freelance writer” who doesn’t like him. That seems pretty weak as a potential motive. But it’s possible. Maybe he managed to piss off someone he was dating so much that she decided she would end his career and make up allegations against him. Or maybe he dated someone crazy enough to do this. And maybe there’s a freelance writer out there pissed off enough to join in that fight.
(It’s generally accepted that this writer is Jesse Brown, host of Canadaland and a former CBC contributor, who approached the Star and wrote the first story with its investigations reporter Kevin Donovan. I was a guest on his show recently. And while I may not agree with everything he says, nothing about his behaviour suggests to me that he would put aside his journalistic ethics to engage in a smear campaign.)
But the more people who say he did something wrong, the more we have to ask why they would lie about it. The first ones to come forward did not do so publicly, so they’re not in it to get attention. Ghomeshi would probably have mentioned any attempt at extortion.
I’m not saying false rape accusations are not made. They are. But they’re rare for the same reasons that reports of rape rarely make it to police. If this is an invented scandal by one person, it’s an epic con job.
In cases like this, there’s never just one victim
When the story first broke on Sunday, I thought of this episode of the TV series Law & Order. From the third season, it tells the story of a doctor who rapes his patients. A psychologist who works for the district attorney’s office decides to make herself bait to prove it, and does. But the conviction is thrown out by the judge.
Vindicated, the doctor says on the courthouse steps that he doesn’t rape women.
Cut to the next scene, and the doctor meets with the assistant district attorney again. A large stack of papers gets dropped on the desk, as one ADA explains: “54 women you either raped, molested, or abused.”
The other chimes in: “In the future, sir, stay off the evening news.”
I thought to myself, reading the first Ghomeshi story: If this is real, more women will come forward. Because there would almost certainly be more women. And the man who abused them is calling them liars. And because some have already come forward, they’re more likely to be believed. And because they’re not the only victim here. Pretending like it didn’t happen won’t make it go away. And if they don’t do something now, it could happen again. Whispering warnings to your friends isn’t enough.
Sure enough, within days more women came forward. As I write this, the count is nine, including two who put their names to it. Toronto police are encouraging more to report cases of abuse, whether they involve Ghomeshi or anyone else.
That doesn’t make it absolutely certain that Ghomeshi is guilty. But his claim of a conspiracy against him gets weaker and less credible the more people come forward.
Jian Ghomeshi is a 47-year-old public figure dating women in their 20s, and that’s creepy
Ghomeshi admits that the ex-girlfriend he speaks of was in her 20s, and other stories also involve women significantly younger than him. While I don’t condemn such relationships outright, when combined with his prestigious position as a major CBC personality, the fact that these women likely see him as an authority figure, the usual male-female power dynamic and the fact that apparently Ghomeshi is the dominant one in this BDSM relationship, the difference in maturity paints a more disturbing picture.
Even if Ghomeshi is not the employer of these women, or using his power directly to offer them career advancement in exchange for sex (and some cases allege that he preyed on young employees or those who wished to work at Q), the power dynamic means that Ghomeshi would need to be even more careful about ensuring proper consent, which he either failed to do or did from someone whose statements can’t be trusted.
Ghomeshi’s $55-million lawsuit will probably never get to trial, and he’s very unlikely to win it
As labour lawyer Howard Levitt explains, if Ghomeshi is a unionized employee (and his lawsuit says he is) then the court will defer to the grievance process set out in the collective agreement. And even if he’s right, this won’t end with the CBC giving his old job back. The relationship — and Ghomeshi himself — have become too toxic.
The $55 million figure is pulled out of nowhere and meaningless. It’s way more than anyone has ever received for defamation. And since most cases end with out-of-court settlements, this one likely won’t get to that point either, unless Ghomeshi is so desperate that he feels winning such a lawsuit is the only way to save his career.
Or maybe the lawsuit itself is simply a way of getting things on the record without the risk of being sued himself. It’s certainly as much a PR move as it is a legal one. Ghomeshi doesn’t need the money as much as he needs his reputation.
UPDATE: The lawsuit has been withdrawn.
Ghomeshi’s first Facebook post was either a great PR move or a horrible one, or both
A lot of people have suggested that Ghomeshi’s 1,600-word Facebook post was a PR move, the work of high-stakes PR firm Navigator, which he had hired to advise him.
There were certainly PR advantages to his post. It allowed him to shape the story early, and get the public on his side. But it was also a public statement that opened the floodgates. Without it, a lot of what has come out might never have been made public.
Navigator has since dumped Ghomeshi as a client. Whether this is because he wouldn’t do as they say or because he was just too toxic to associate with, we don’t know. But a Toronto Star story quotes a source saying the company believes Ghomeshi lied to them.
Rock-It Promotions, another PR firm, also dumped Ghomeshi.
Ghomeshi is not like any employee
People have said that if they were doing kinky stuff at home, it would be none of their employer’s business. And that may be true. But Ghomeshi is not like a claims adjuster at an insurance company or an assembly-line worker at a factory. He’s a public face of the CBC. His job is hired by “casting” decisions, as another CBC employee described such decisions to me. Even in the unlikely event that Ghomeshi saves his employment, his position as host of Q is gone for good, and he has no guaranteed right to it.
Ghomeshi is accusing the CBC of breach of confidence
One thing that is underreported about this case is one of the main reasons that Ghomeshi is suing the CBC is for breach of confidence. Simply put, Ghomeshi says he brought the accusations against him to his employer’s lawyers so they could mount a joint defence, and the CBC then used this information as cause to fire him.
Regardless of what you think of Ghomeshi’s actions, if this allegation is true it is worrisome. It could discourage future proactive disclosures, and encourage people to keep secrets from their employers. Ghomeshi trusted the CBC and now alleges it betrayed that trust.
We’ll see if the CBC accuses Ghomeshi of being a crazy jilted ex-employee.
The CBC is not stupid, and it does not fire its biggest star for no reason
The CBC is known for a lot of things, not all of them good. It’s excessively bureaucratic, top-heavy, left-wing, too cautious. And yet we’re expected to believe the company fired one of its biggest personalities without cause after months of investigation and discussion.
I’m not saying the CBC is necessarily right here. It’s made poor decisions in the past. But it’s also learned from those decisions. Its experience with Sook-Yin Lee in 2006 seems on-point here. She wasn’t fired even though she engaged in activities outside of her work that might not be perceived as family-friendly.
And the public broadcaster had to be well aware that it would likely be sued if it came down like this, or a grievance filed that might reverse their decision.
But they’re also aware that if Ghomeshi did something else in the future, something that could be proven, and that it came out that it did nothing about previous allegations, that could put it into even more trouble.
Q was a good show, but that’s not relevant
CBC hasn’t cancelled Q. It’s running with guest hosts for the time being. And it still has a lot of staff keeping it running. The show wasn’t just Ghomeshi. But he was the face of it, so we don’t know how it will change without him.
Jonathan Kay talks about what makes the show good. But as he points out, it’s not relevant to whether Ghomeshi is an abuser of women. (Nor, should I add, is the decision to invite someone on the show who had controversial comments about sexual assault that were condemned as victim-blaming.)
From Woody Allen to Roman Polanski to Bill Cosby, we are tempted to disbelieve when people we admire (particularly artists in showbusiness) get accused of doing awful things. Even if we know very little about these people personally.
Imagine if this wasn’t Jian Ghomeshi but some random person nobody knew. Imagine a bunch of women came forward and accused him of assaulting them. And he said he didn’t do it. How likely would it be that you believe his side?
We as a society have dehumanized rape, made it seem as if sexual assault and violent acts are only committed by awful people, and that it’s easy to determine who’s an awful person just by looking at their face. In reality, anyone can be a rapist, even someone who seems like such a nice, well-read and well-liked guy.
Despite all this, we still don’t know all the facts
The circumstantial case is very bad for Ghomeshi. So many factors push the odds in favour of his accusers. But there remains no proof that he acted without consent, just as there is no proof that he acted with consent. In the end, it still comes down to he said vs. she said.
It’s not enough in a court of law, but the court of public opinion has far lower standards.
So if the allegations against Ghomeshi are false, I hope some proof comes to light, so that he can finally be exonerated. And if they’re true, I hope proof comes to light there as well, so that doubts can be washed away. Because…
This is about far more than Jian Ghomeshi
This case is one among countless that involve an accusation of sexual assault. But its circumstances and its wide reach in the public eye make it one of the more important. Can women feel safe bringing accusations against men in power? Can public personalities be fired for their consensual sexual activities? How do we determine what qualifies as legal consent in a BDSM situation? How can we prove that an allegation of sexual assault is not false?
Rape and sexual assault are tough to prove, tough to prosecute in this legal system, and subject to so many standards that prevent justice from being applied equally.
And the saddest part of this story is that there seems to be no easy way to fix that situation, and so this high-profile case will likely do little to change it.
But that doesn’t make me any less grateful for those who have come forward, about this case or others.