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It is absolutely true that for survivors of sexual assault, being subjected to cross-examination can be an agonizing affair. It is also true that it is absolutely necessary to uphold basic standards of justice. Particularly in a case like Ghomeshi’s — where allegations date back more than a decade and there is a dearth of physical evidence — witness testimony is the most important evidence the judge will hear. Henein’s job, which she seems to be doing skilfully, is to identify inconsistencies, to challenge memories and call into question the credibility of the witnesses and their stories. When the onus is on the Crown to prove guilt, small irregularities in the narrative are inordinately important to the defence. Henein can’t risk understating their relevance by treating witnesses with kid gloves.

When a case is built so heavily — if not entirely — on witness testimony, I’m not sure how you mount a defence without poking holes in a claimant’s story

This is an unfortunate reality of our justice system: it’s not a kind place to be for anyone, especially the victims. That said, there have been some reforms to the way we prosecute sexual assaults in Canada, including the introduction of rape shield provisions that limit inquiry into a complainant’s sexual history. As well, some activists and lawyers have called for specialized courts to deal with cases of sexual assault — akin to specialized domestic violence courts — which would be more sensitive to the complexities of sexual violence, such as why some women maintain contact with alleged perpetrators after abuse has taken place. But even still, when a case is built so heavily — if not entirely — on witness testimony, I’m not sure how you could mount a defence without poking holes in a claimant’s story.

The public’s mantra might be to “believe women” (the slogan adopted after allegations against Ghomeshi came out last winter) but the courts can’t, and don’t, and shouldn’t, work that way. And though it’s painful to watch — and surely worse to experience — it means our justice system is working, imperfect as it might be.

National Post

Robyn Urback • rurback@nationalpost.com | robynurback