On CBC's The National, Henein told Peter Mansbridge that justice was "absolutely" served in this case, and that "justice does not mean that you are guaranteed the result that you want," rather, it means getting a "fair trial." This may well be true, based on the way in which the justice system is currently set up, but what is "fair" and what is not is a matter of perspective. Was it "fair" to bring up Ghomeshi's victims' behaviour prior to and following his abuse? I'd argue that it was not, seeing as it was his abusive behaviour that was on trial, not his victims' reactions to said behaviour. But that is merely my opinion, as a woman and as a feminist -- one who knows full-well that a woman's behaviour towards an abusive man rarely makes much rational sense and has absolutely nothing to do with his choice to abuse women. Henein and the justice system clearly disagree with me on that one.
I do agree with Henein that, "Hashtag 'I believe' is not a legal principle, nor should it ever be," as one cannot simply "believe" everything a woman says, simply because she says it, even when it comes to rape or abuse, and particularly when it comes to convicting people of crimes. But the point of #Ibelieveher or #Ibelievesurvivors is not to say that women don't ever lie or exaggerate or forget -- it is to demonstrate that we, too, have been where those victims were, that we know what it feels like, we know how painful it is not to be believed, how difficult it is to go public, and how frustrating it is when people question our motives and behaviours surrounding our victimization. I don't automatically "believe" anyone -- I listen to the stories and the evidence and make an assessment based on my expansive knowledge of abusive relationships and power dynamics between men and women. I also know, full-well, that it is unlikely a woman would go through the torment attached to speaking publicly and openly about all the gory details of a traumatic and humiliating experience like rape or abuse, simply for attention or some misguided version of "revenge." That is a far more irrational conclusion to come to than #Ibelieveher is.
But yes, you could say the system worked as it was intended to. Certainly you could say that Henein did her job and she did it very well. But so did O.J.'s lawyers and so did Ivan Henry's lawyers and so did John Furlong's lawyer and so did countless lawyers who prevented abusive men from being charged for their crimes. I mean, this is the point -- to work as hard as you can to ensure your client gets off. It doesn't mean that this work is "good" or "ethical" or "right." Certainly the successes of lawyers do not always or even usually equate to a "fair" verdict. No. In general, it is those with the most financial resources who win their cases, which strikes me as quite the opposite of "fair."
My bias: I tend to assume all lawyers in positions similar to Henein's are also a little sociopathic, driven by money and power, rather than empathy. Lawyers who are privileged enough make choices about who they defend, but choose clients based on how much they will be paid (or based on how high profile the case is), rather than based on whether their client is a woman-beater, are not people I view as particularly ethical people.
That said, I can't imagine a male lawyer being judged as harshly as Henein has been... Women, after all, are expected to be gentle, not ruthless; and when they behave in ways we've come to expect from men, women are viewed as evil "bitches," rather than as driven, intelligent, confident or tough, as men are. So, as many have pointed out, it's unfair that Henein is being seen as a traitor to her sex, simply for behaving as many very expensive lawyers would. Unfortunately, this reality doesn't redeem Henein, nor does it make her a feminist, despite what she and others may have claimed. This was true even before she argued in defence of Ghomeshi in February.
Henein's joke, told at a 2014 gala dinner honouring past presidents of the Criminal Lawyers Association, acknowledges exactly what I mean when I describe the behaviour of lawyers like Henein: "As criminal lawyers we represent people who have committed heinous acts. Acts of violence. Acts of depravity. Acts of cruelty. Or as Jian Ghomeshi likes to call it, foreplay," she said, to big laughs from the crowd. Again, she knows what her job is and she does it well.
In 2008, Henein ensured hockey coach, David Frost, was acquitted of sexual exploitation charges. In order to win her case, Henein attacked the credibility of the victim, who had been 16 at the time of the alleged assault, based on "minor inconsistencies in the various statements she gave police." She went on to suggest that "she was in cahoots with another young woman to bring down Mr. Frost," who was 29 at the time of the alleged assaults. Similarly, Henein picked on inconsistencies (which do not disprove violence) in the testimonies of Ghomeshi's victims and framed communications between Lucy DeCoutere and another complainant as a plot to enact revenge on her client.
Yes, she did her job, and she did it well. But this is not, as Tabatha Southey claimed in a recent op-ed about Henein, "one for the team." Rising to power in a male-dominated field and succeeding at treating young women in the exact same way many of one's male colleagues would does not, alas, make one a feminist. Neither does being a "strong woman" (whatever that means). Despite mass confusion, being a feminist does not mean being more "like men." This conveys a deep misunderstanding of what feminism is all about. Within this framework, any woman who supports war or is a proud and successful capitalist is necessarily a feminist. In fact, feminism is not about shifting around various hierarchies in order to allow women to participate in the oppression of other women. If this were the case, a female brothel owner or trafficker who did a very good job of profiting from the exploitation of marginalized women and girls would be a feminist success story. Likewise, Margaret Thatcher, who royally screwed over the poor and working class during her reign, could be considered peak feminism.
That ain't it. Feminism is not about the ability for a few individual women to access wealth and power, at the expense of more marginalized women (or at the expense of women, as a whole).
In a Law Society of Upper Canada video from 1998, Henein explains that, in order to get a sexual assault complainant's sexual history to be introduced at trial, one might resort simply to bringing the application, "especially in front of a judge-alone trial, to introduce all this otherwise inadmissible evidence and if it’s excluded, well, oh, well, the judge has heard it." She then jokes, "No, no, I'm absolutely confident that the judge will be able to disabuse his or her mind of the fact that she has a very extensive and lewd prior sexual history." In other words, Henein is advocating that lawyers play into already existing misogynist ideas about how a woman's perceived "sluttishness" effectively renders her unrapeable or, at very least, not a credible witness. She very much wants judges in sexual assault trials to dismiss women's accusations for incredibly sexist reasons.
Completing the full-circle of anti-feminist work, Henein represented the "Feminist Coalition" -- a group that applied for (but was not granted) intervener status in the Bedford case, pro-bono. The group intended to argue in favour of men's right to buy sex and to run brothels.
The individuals who were involved in this group back in 2013 were naturally supportive of Henein's efforts. Jane Doe, an advocate for the decriminalization of pimps and johns who headed up the so-called "Feminist Coalition" told The Star, "She is a brilliant feminist and did outstanding work for our coalition." Doe added, "I do feel strongly that everyone is entitled to the fullest and best representation -- and she's the one." Indeed. If you are looking for a woman to fight for men's right to do whatever they desire to women, free from judicial accountability, all the while claiming she is simply doing what's "fair," Henein is your girl.
Henein not only makes very considered choices to defend and protect men who hurt or exploit women and girls when she could most certainly choose not to, but, in doing so, she employs the very same techniques that misogynist men do in order to discredit victims. She relies on sexist stereotypes that say women who accuse men of assault are bitter, manipulative, liars and makes good use of the victim-blaming mentality Henein trusts the men in her field already hold. She knows how to make patriarchal institutions work in her and her clients' favour. She fights in favour of the status quo, not against it.
And look, it is her right to do that and it is Ghomeshi's right to hire a lawyer who will take full advantage of all these strategies and stereotypes. But let's not pretend as though Henein had no choice -- she did have a choice and she has had choices. And what she has chosen to do has undoubtedly made her successful, but that doesn't make it right. Certainly it doesn't make her a feminist.
Author: Meghan Murphy