Many Canadians were introduced to the concept of “post-incident contact” during the recent high-profile trial of Jian Ghomeshi, the former CBC star. In acquitting Ghomeshi of four counts of sexual assault and one of choking, Judge William Horkins explored the later actions of the three women who accused Ghomeshi and found them discordant with what he expected of an assault victim — a controversial comment that inflamed debate over an already difficult subject.

“Each complainant in this case engaged in conduct regarding Mr. Ghomeshi, after the fact, which seems out of harmony with the assaultive behaviour ascribed to him,” Horkins said in his ruling. He was also bothered that the women did not disclose these flirtatious after-the-incident behaviours when they first gave statements to the police and the Crown.

One woman sent a bikini photo; another cuddled with Ghomeshi at a park and sent him a love letter; the third gave Ghomeshi a “hand job” at a subsequent get-together after the alleged assault.

As troubled as Horkins was by this, some experts in the field of sexual assault are troubled by the judge’s comments, which they consider to be out of step with the times.

“Women who have been assaulted by people they know act in ways that are often counterintuitive,” said University of Ottawa law professor Elizabeth Sheehy, who teaches sexual assault law.

Sheehy said it is important for judges to understand that there is no “script.”

Recently, the Star has looked into new allegations against Ghomeshi, made by a woman in the Toronto music business whose reaction was very different. The woman alleges that in 2013, when she was in her early 20s, Ghomeshi jumped on her, choked and forcibly kissed her, then put one hand between her legs. She managed to wriggle free and left. The woman provided the Star with a chain of text messages with Ghomeshi that indicate he pursued her in the following weeks, but she rebuffed him and eventually he gave up.

“Not even texting me back today? That just makes s--t awkward,” Ghomeshi wrote in a text to the woman the day after the incident.

Neither Ghomeshi nor his lawyer, Marie Henein, has responded to the Star’s questions about this new set of allegations. The woman has not made a complaint to the police.

This woman chose to ignore Ghomeshi, but legal experts in the field of sexual assault say it is not unusual for someone in a social setting to remain friendly with a person who hurt them.

“At first there is often a sense of confusion, a sense of denial,” said Toronto criminal lawyer David Butt. “It is not unusual for the relationship to continue.

“We have to be very careful about constructing templates and imposing them.”

What makes this situation different from assault by a stranger, Butt said, is that the incident occurs in the context of a social relationship. Some people may immediately break off ties, but others may seek to continue and possibly “normalize” the relationship, hoping that it will not happen again.

Experts say this is well understood when it comes to domestic violence. In that case, the victim and accused may share a residence, have children and financial ties. In the case of Ghomeshi and the three women, it was a dating relationship. Legal experts say the courts are struggling to understand why a person in that situation would be nice to an alleged abuser.

University of Windsor law professor Julie Macfarlane said, “We do not seem to have judges who really understand the dynamics of these situations.”

Macfarlane said there is immediate confusion for victims after these incidents: “Here you have someone who until a few minutes ago you really liked, and they have done something to you that you are not comfortable with. It is perfectly normal to later try and reach out and figure out if this was an aberration. The woman may ask, did I make this happen? Is this my fault?”

She said a person’s charm, or perhaps a desire to offer someone a second chance, could draw the woman back to her attacker.

In the Ghomeshi case, his lawyer, Marie Henein, made much of the fact that post-incident contact by the three women was not disclosed when they first spoke to police and the Crown. Henein brought out this historical information through a raft of emails kept by her client.

In the case of complainant Lucy DeCoutere, a photograph was shown in court of Ghomeshi and DeCoutere cuddling in the park later in the weekend when he allegedly attacked her in his home, striking and choking her. DeCoutere also was revealed to have sent Ghomeshi a handwritten love letter signing off with the words “I love your hands.”

Why withhold such information?

Horkins said he could understand if DeCoutere had withheld information because she feared “that to some audiences this post-event socializing would reflect badly on her claims that this man had in fact assaulted her.” Horkins’ quarrel with DeCoutere was that she offered a different reason for hiding the information, telling court she planned all along to reveal the socializing at trial.

“I suspect the truth is she simply thought that she might get away with not mentioning it,” Horkins said.

Another sexual assault charge against Ghomeshi was dropped by Crown attorney Michael Callaghan before trial. The Star has found the charge was dropped after the complainant provided police with a short chain of emails that showed she exchanged friendly words after an alleged incident. Callaghan told court he had no reasonable prospect of conviction.

The alleged incident in that case took place in August 2002 at the Owen Sound Summerfolk music festival, where Ghomeshi was singing.

The complainant, whose name remains protected by a publication ban, has told the Star that Ghomeshi picked her out of the crowd and invited her to meet him at his hotel room so they could go out for dinner. Once there, she said he kissed her and repeatedly squeezed her neck, staring at it “intently.” She said he slapped her hard when she tried to leave. “Then he wasn’t laughing and shoved his hands in my mouth and checked my back teeth and gums like a dentist. That’s when I pushed him off and left,” she said.

When first interviewed by the Star in 2014, the woman provided a series of friendly emails she had exchanged with Ghomeshi. They show that months later she did see him again, on one occasion, when he was performing at a Toronto event. She said they did talk and kiss good night. In a recent interview, the woman said she decided to give him another chance, thinking that perhaps his aggressive behaviour had been an aberration. They did not see each other again after the Toronto event.The woman said she was told by the Crown: “It is not that we don’t believe you; it’s that we don’t think this is a case we can win.” The woman said that the Crown and police were worried because she was “extremely friendly” with Ghomeshi in the emails. She said there was also a concern that she did not “confront him about what he did.”

The woman said she chose to disclose everything to police when she first was interviewed. “I was upfront about everything,” she said.

Law professor Macfarlane said it is often the case that a person will not bring forward information out of a fear “they will not be believed.”

In sexual assault cases, unlike most other criminal cases, it is the post-incident contact of the alleged victim that is at issue. Lawyers interviewed by the Star said that in the case of a murder, for example, it is the pre- and post-incident behaviour of the accused that takes prominence. Not so in the case of sexual assault, and particularly not when, as in Ghomeshi’s trial, the accused does not testify.

Veteran trial lawyer John Rosen, in an interview, said heavy scrutiny is the norm in a typical criminal case.

“Everybody’s conduct after an event, both complainant and accused, is a material piece of evidence,” said Rosen.

In the Crown vs. Ghomeshi, none of his subsequent actions were scrutinized, and no additional witnesses were called.

Ottawa law professor Sheehy said this focus on the alleged victim’s post-incident conduct makes it very difficult to successfully prosecute a sexual assault.

“I think this gives a profound message that unless you govern all of your behaviour from the moment of the assault, say nothing, record nothing — unless you perform absolutely perfectly in the days, weeks and months after the incident, then you run the risk of not being believed,” Sheehy said.

Ghomeshi remains on bail pending a separate trial in June on one remaining charge of sexual assault.

‘When do I get to see you’

In early 2013, Ghomeshi, then 45, was very much at the top of his game. In his sixth year hosting the music and culture show Q on CBC radio, he commanded a loyal audience across Canada. Appearing on Q, for a new musical band, could be a golden opportunity.

At a music industry party in early 2013, the woman met Ghomeshi. Her job involved promoting musical artists. Over the next six months, the two texted from time to time.

The texts show Ghomeshi trying, unsuccessfully, to get the woman to go for a drink.

“You have plans tonight?” he asked in February that year.

“Hello sir! Yes I am isolated and (working) all night, now that I’m not so sick.”

In March, Ghomeshi and the woman exchanged messages regarding one of the woman’s artists and Ghomeshi asked “when are we having that much anticipated drink.” Later he typed: “so are we meeting up later? I need to know so I can go about losing a friend by blowing them off.” He then joked they could spend the first hour “seeing if you know how to pronounce my brown person name.”

The woman responded: “Hahhahaha just awful. And no I actually can’t tonight ill (sic) probably be working pretty late.”

In June, the woman texted Ghomeshi, and asked if he wanted tickets to see a band she was promoting. Ghomeshi told her in a text that he would attend with a “girlfriend.”

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In the days after the concert, Ghomeshi continued his attempts to see her, eventually inviting her to his house.

“How is Monday night for you? Dinner?”

“Monday works:)” the woman responded, and noted to Ghomeshi that he likely “didn’t expect that.”

“I like to remain an optimist,” Ghomeshi responded. Butter chicken would be on his menu. Ghomeshi ran a “countdown,” texting in anticipation: “53 hours,” he wrote at one point, “unless that’s creepy. In which case I’ve not started any such thing.”

In interviews with the Star, the woman said in her field it is not unusual to mix business with a coffee, drink or dinner. “Q can make or break an artist,” she said.

In 2013, Ghomeshi lived in Cabbagetown, in a former peanut factory converted to townhomes. The evening she first visited him, in early July that year, was the day of a massive rainstorm. Ghomeshi was a perfect gentleman. He expressed surprise that she had not listened to Q that day and played his opening monologue — on climate change — for her.

As the rain pelted his Sackville St. home, the woman gave Ghomeshi a work-related presentation on her laptop, featuring her bands. They had one glass of wine each. She was home by 11 p.m. The woman said there was no intimate contact. Before midnight, Ghomeshi texted, asking her out the following week. She told him she was busy.

The next morning, as Toronto work crews cleared storm drains, Ghomeshi texted: “Happy Tuesday … when do I get to see you.”

The woman responded saying she was sick and joked it was caused by his dinner. In a later interview with the Star, the woman said the illness was invented. She was concerned that Ghomeshi was trying to date her and a friend had warned her to be careful about crossing that line, given his position at Q.

Ghomeshi persisted: “What’s wrong with you? We didn’t even make out. At least that would make it worth it.”

Over the next few weeks, Ghomeshi on five occasions asked to see her. The woman made excuses — she was still ill, cleaning up after the flood, a relative was in town. The fifth time, she agreed to meet him for a drink on a Monday in late August. She asked where he wanted to go.

Ghomeshi replied: “I don’t know where. I didn’t think it through that far. Just know I wanna see you. By which I mean … Jian wants to see you.”

When the day arrived, Ghomeshi texted the woman, saying he had just returned from Los Angeles. He asked if she wanted to have dinner, drinks, or “we could also hang on my rooftop.”

The woman replied: “Let’s meet up for a not too late drink! Totally your call where.”

Ghomeshi suggested she come to Cabbagetown, and they would figure out a place she would not have to drive to. The woman responded that she did not mind driving as she had an early morning meeting the next day. The text messages show that he suggested coming to his house and she agreed.

“Text when you’re here cause I’m on roof and may not hear door. Also — I hope you like red wine. Also — it’s f---ing gorgeous up here,” Ghomeshi wrote in a series of messages shortly before 9 p.m.

In an interview, the woman described what happened after she arrived. She said she entered Ghomeshi’s home. He met her downstairs and they chatted for about an hour. He poured red wine into two glasses and they went to his rooftop. On the roof, there were couches and lounge chairs. She said, “There was a different vibe than the first time. I thought, oh no, this is a thing.”

She said they both sat down — she on a lounge chair that was upright — and Ghomeshi began telling her that he suffered from anxiety and had recently lost a “keepsake” during an Air Canada flight when his luggage went missing. He would not say what it was. “I don’t know if I can trust you yet,” he said. She said she was increasingly concerned with the “vibe.” She thought: “This is not the direction this should be going.”

At one point, she said Ghomeshi convinced her to change her seat and move to lie down on a reclining lounge chair, to look at the stars. She did and they continued chatting. She said she was in mid-sentence when Ghomeshi, who was sitting on another chair to her left, lunged on top of her.

In an effort to get Ghomeshi’s account, the Star provided the following description of the woman’s allegations to Ghomeshi and his lawyer in writing several weeks ago and again this week. They have yet to respond.

The Star’s letter to Ghomeshi states:

“You encouraged the woman to lie on a one-person chaise longue looking at the stars. You were sitting in a chair beside her. While she was looking at the stars, without consent, you jumped on her, putting the full weight of your body on top of the woman. You put both hands around her throat and choked her, while kissing her aggressively and trying to force your tongue down her throat. You removed one of your hands and thrust it between her legs. The woman was wearing tights. You said to the woman, ‘I’m going to f--- you so hard you won’t be able to walk for a week,’ and ‘I am going to stick my finger inside of you and f--- you so hard.’ During this time, according to the woman, you made deep, guttural, ‘animal’ style sounds. The woman managed to extricate herself from the situation by pushing you away. She recalls saying ‘too fast, too fast.’ She made an excuse to leave and you insisted on walking her to her car a few blocks away. You gave her a kiss on the cheek.”

In the Star’s interview, the woman said that after leaving his home, she drove two blocks, pulled over and cried. She said Ghomeshi had asked her to text him when she got home and she did, texting “Home!” Asked about her use of an exclamation mark, and her reasoning for sending a text at all, she said she did it because he asked if she would let him know if she arrived home safely and she often uses exclamation marks in texts.

The woman eventually told the story to a small group of people. A male friend was upset and very supportive. A woman told her, “Why would you go there?”

According to the message chain, Ghomeshi texted her the next day at 11:27 a.m.

“Hi. Happy Tuesday. Thanks for an amazing night.”

She did not respond. He texted again at 6:36 p.m.: “Not even texting me back today? That makes s--t awkward.”

The woman responded that night by text, saying she had left her phone at home. She later told the Star this was a lie, an attempt to avoid Ghomeshi.

“I’d like to see you,” Ghomeshi texted the following day. Over the next few days, the woman made numerous excuses. Ghomeshi responded at one point: “It’s like that?”

She replied that she was having a “terrible week” at work and was now living at a friend’s place.

Ghomeshi’s last text to her was on Aug. 27: “Aww I’m really sorry to hear that. Sounds totally frustrating for sure.”

Kevin Donovan can be reached at 416-312-3503 or kdonovan@thestar.ca .

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