Monday, October 27, 2014

Consent or Not? An Analytical Viewpoint of the Ghomeshi Scandal

Perhaps it's something you can watch with friends
or something that inevitably lends
itself to shapely curves and bends
of exploited women and their friends.
-Moxy Fruvous, Video Bargainville, 1993

Nearly a year ago, I posted an analytical commentary on an article about a 'bad date' with a thinly-anonymized Jian Ghomeshi, which alleged that Ghomeshi (er "Keith"), out with a would-be entertainment writer who thought he was gay, behaved in a creepy way, making unwelcome advances, etc.  My assessment of the article was that there were clear credibility 'red flags' - artistic license, hyperbole, admitted dishonesty, with the whole thing coloured by a 'social climbing' narrative.  The high watermark of misconduct described in the article was that he allegedly grabbed her behind - of which, if true, I would disapprove, but I was not comfortable assuming its truth based on the article on the whole.

Now, there's a new - and much more serious - controversy involving Jian Ghomeshi.  For the uninitiated, he has for many years had a popular radio show on CBC, and on Sunday it was announced that he was no longer with CBC.  As these things tend to, the information on exactly why was sparse at first.  But, in an unusual twist, Ghomeshi released a detailed statement explaining his version of events.  Read the whole statement here.

Ghomeshi's Side

Here are the highlights:  According to Ghomeshi, he was fired from the CBC, in relation to a sex scandal.  He confesses that his sexual tastes are irregular, including roleplay and BDSM, but claims categorically that everything he has done with his sexual partners was consensual.  However, a jilted ex-girlfriend and a freelance writer allegedly sought out others to corroborate allegations of sexual assault - the takeaway is that he expected a number of allegations from a number of women to be made in the near future, and his claim is that the allegations are untrue, and the result of collusion.

(Collusion is a big deal.  We tend to look for patterns.  One accusation is easy to disbelieve, but two or three similar accusations from different people becomes a pattern of conduct, and if they're similar enough they become inherently credible.  Collusion involves having multiple people coordinate to get their stories straight before making the allegations in the first place, and if true completely undermines the corroborating impact of similar stories.)

Ghomeshi states that he showed the CBC materials that illustrate the consensual nature of the acts in question.  (This raised an obvious question as to what kind of proof he relied upon.)  He claims that the CBC admits that they're satisfied that there was consent, but that they're firing him nonetheless because the sexual behaviour was unbecoming of a prominent CBC host.

He acknowledges that his sexual tastes may not be palatable to some - I'll be the first to admit that I find them to be disturbing and distasteful - but argues that "no one, and certainly no employer, should have dominion over what people do consensually in their private life."

The Star Article

It wasn't long before we got another side of the story.  The Toronto Star had started investigating the allegations several months ago, but elected not to print the article.  In the Star Editor's words:
The reason the Star did not publish a story at that time was because there was no proof the women's allegations of non-consensual sex were true or false.  They were so explosive that to print them would have been irresponsible, and would have fallen far short of the Star's standards of accuracy and fairness.
In view of Mr. Ghomeshi's extraordinary statement on Facebook on Sunday evening, and his high profile in Canada, we now believe that it is in the public interest to detail those allegations, which appear to have led directly to his sudden firing from the CBC.
So they printed the article late last night.  Again, you should read it yourself if you haven't already.

Put briefly, the Star interviewed three women who anonymously allege that Mr. Ghomeshi engaged in violent non-consensual sex with them over the past two years.  They deny that there were any 'safe words' employed, and claim that Ghomeshi was initially charming, but then started "suggesting or hinting at violent sex acts."

"When they failed to respond or expressed displeasure, they recalled Ghomeshi dismissed his remarks as 'just fantasies'", and promised not to do anything they weren't comfortable with.

However, he then became sexually aggressive and forceful without consent.  There's some detail about the level of violence - it's pretty disturbing, and I'm not going to repeat it here, but it's not entirely incompatible with what Ghomeshi described in his own statement.

But we come to the real crux of the issue:  Why didn't they go to the police?  Why is this a matter of purely anonymous allegations?

The Star article explains a number of reasons for their reluctance to come forward:  Firstly, they all cited the reaction to the Ciccone article - that Ciccone received very significant internet criticism for her piece.

As well, they cited "worries that their consent or acceptance of fantasy role-play discussions in text or other messages with Ghomeshi would be used against them as evidence of consent to actual violence."

There was a further allegation - a claim by a former employee of CBC that Ghomeshi had made a vulgar sexual remark to her, and that she complained to CBC, but that their response was unsatisfactory and she subsequently quit.  (Ghomeshi claims that there were never any formal complaints made against him.)

General Observations on Credibility

It's very important to understand that these are unproven allegations, made anonymously.  It is inherently unsafe to convict Ghomeshi - whether in a court of law or in a court of public opinion - based on such allegations.  It is really quite impossible for us to know who is lying or telling the truth based on the existing materials, and particularly when we're talking about such egregious criminal misconduct, the presumption of innocence prevails in my mind.

As well, while it's not uncommon for victims of sexual assault to be unwilling to come forward, their explanations of why they didn't come forward (except anonymously to the press) raise more questions than they answer.  Firstly, while the article states that they all cited the response to the Ciccone article as a reason to not come forward, the Star's timeline on these events strongly suggests that at least some of these assaults occurred well prior to the publication of the Ciccone article.  (As well, I might observe that the Ciccone article was a very different creature, being an article by an admitted social climber disparaging a celebrity on some pretty questionable bases.  The conduct in question is different here, as would be the ostensible motivations for coming forward.)

Secondly, concerns about "text or other messages" that expressed consent should raise real questions in readers' minds:  If their responses to Ghomeshi's suggestions of sexual violence were met with silence or displeasure, as the Star story suggests, what was it that they did consent to, such that it might be interpreted as supporting a consent to actual violence?  There's a real disconnect there.  The Star's story completely omits any mention of such consent until raising it, towards the end of the article, in defence of their anonymity.

And that's really important here.  With Ghomeshi admitting to the kinds of sex acts alleged, the core question to be answered is about the scope of consent.

But the remark about those "text and other messages" does seem to answer a question that had been bugging me about Ghomeshi's own account, as to the nature of the materials he used to prove his own innocence.  Naturally, they wouldn't be a full answer to the question, as to whether or not the acts performed in the bedroom exceeded the scope of consent, but it does fill out the narrative a bit.

Finally, while it's not unusual for victims of sexual assault to be reluctant to come forward, and that's understandable, I'm less willing than some to give them a pass on the avenue they did decide to take.  You're not willing to talk to the police about it, but you're willing to talk to the press about it on condition of anonymity?  Nineteen times out of twenty, I'd sooner trust the police than the press to protect the identity of a victim, and in fact there are mechanisms to protect the identities of victims of sexual assault (typically, over the objections of the media).  Why talk to Kevin Donovan, to another freelance reporter, to others you're hoping will corroborate your story, etc., but still not want to tell your story to a judge with the power to order your identity protected?

And why go to the press?  What do you hope to accomplish through anonymous allegations?  That the country will know who Jian Ghomeshi really is?  That would raise the important question of how much stock we, as a society, are willing to put into anonymous allegations, and the simple reality is that there are very good reasons for the presumption of innocence, the right to face one's accuser, etc.  The bottom line:  We should never be prepared to assume that someone is guilty of a serious criminal offence simply on the basis of anonymous allegations.

Why Did the CBC Actually Fire Ghomeshi?

Here, I'm getting into 'best guess' territory.  Ghomeshi claims that the CBC was satisfied that there was consent.  I don't necessarily believe that's what anyone actually said (that's the sort of thing that can be easily misstated), but even if it was said, that doesn't mean it's entirely true.  I suspect that we're into a situation where they're acting on the assumption that Ghomeshi's version of events is true.

On Twitter, I've seen people post statements arguing that it's hard to believe that the CBC would terminate him if they believed there was consent, such as the following:
I mean, come on.  You honestly believe the CBC fired Jian because someone's trying to out him for being kinky in bed?
Yes, it seems pretty absurd.  But as a labour/employment lawyer, it's even harder to believe they would fire him over allegations of sexual assault unless they were satisfied not only that the allegations were true, but provably true.  When an employer alleges just cause for termination, the onus is upon the employer to prove those allegations on a balance of probabilities, and with the accusers unwilling to come forward, it would seem pretty much impossible for the employer to meet its onus.

So whether or not the CBC believes the allegations of non-consent is pretty much irrelevant.  Either way, they're going to be worried about the political firestorm that would follow such allegations, and either way, they're unable to jump on the bandwagon and fire him over the allegations.

Ordinarily, with allegations of this nature, an employer like CBC would be expected to place the employee on an administrative leave and make no comment until the matter is resolved - basically, a "The matter is before the courts" response.  But the trouble is that the matter isn't before the courts, and will not obviously have any judicial resolution, and so the CBC needed to find some other way to head off the oncoming scandal.

So they'd try to find something else - an allegation that the conduct he has admitted is somehow incompatible with continuation of his employment relationship.  So yes, I do believe Ghomeshi when he says that the CBC is taking the position that his termination was warranted because of his consensual bedroom conduct.

And from a legal perspective, I suspect it's an uphill battle for the CBC to satisfy an arbitrator that this amounts to just cause.  There are circumstances where an employer can fire an employee for misconduct outside of the workplace, but it's a high threshold, looking to factors such as the following:

  • Whether the misconduct harms the the company's reputation or product;
  • Whether the misconduct renders the employee unable to perform his duties;
  • Whether the behaviour leads to the refusal, reluctance, or inability of other employees to work with him;
  • Whether the behaviour is a serious breach of the Criminal Code; and
  • Whether the behaviour places difficulty in the way of the company properly carrying out its function of efficiently managing its works and directing its workforce.
There's no question that Ghomeshi was tied to the CBC's brand.  But the rest of the factors are harder to get to here, absent serious criminal behaviour.  While it's true that BDSM can fall into a legal grey area, ultimately, I suspect that Ghomeshi is right, that it's going to be very difficult for an employer to discipline based on what happens behind closed doors between two consenting adults, even where one of their major celebrities is involved.

(Ghomeshi does go further, calling sexual preference a human right.  While sexual orientation is certainly a human right, sadomasochism is probably not.  It certainly doesn't stand as a prohibited ground under the Human Rights Code, and probably not as an analogous ground under s.15 of the Charter.)

Choice of Process

There's another interesting quirk here:  Ghomeshi's lawyers have indicated that they will both grieve the dismissal under the collective agreement and file a $50 million law suit.

This is bizarre.  Typically, where a grievance process under a collective agreement is available, you can't sue your employer in court.  The courts just don't have jurisdiction over matters under a collective agreement.  And lots of people have tried to circumvent that by casting a claim as falling outside the scope of the collective agreement, but the courts have taken a very expansive interpretation of the collective agreement, and such efforts generally fail.

However, it's unlikely that Ghomeshi's lawyers would be making a civil claim without at least an arguable basis for jurisdiction, and thus (unlike others such as Howard Levitt, who assert that the suit is just a baseless publicity stunt) I have to assume that there's something there - perhaps some contractual relationship outside of his employment under the collective agreement, maybe something to do with the fact that he co-created the Q program?

It will be interesting to see how that issue plays out.

*****

This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

The author is a lawyer practicing in Newmarket, primarily in the areas of labour and employment law and civil litigation. If you need legal assistance, please contact him for information on available services and billing.

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