Ghomeshi: The Developing Story, And Predator Theory Observations

Folks who have Canadians in their social circle are likely awash in it, and folks for whom Canadian media is not on the radar screen may have mostly or entirely missed it:  CBC fired one of its biggest radio personalities, musician and interviewer Jian Ghomeshi.  Ghomeshi ran to Facebook to put out an account where he was fired for his consensual kinks; the Toronto Star put out there account, which was quite different — their four informants collectively allege nonconsensual beating and workplace sexual harassment.  Ghomeshi filed a lawsuit which, according to some experts, is a stone-cold loser, but a clever way for him to smear the accusers while shielding himself from defamation liability, since what he says in his pleadings is exempt from defamation laws.

First Things First: The Presumption of Innocence and its Limits

It states the obvious to say that we don’t “know all the facts.”  Actually, nobody ever does.  Each survivor knows only her own experience.  Ghomeshi knows his own actions and what he saw, but, for example, he can only know what survivors said or did outside his presence second-hand.  Judges and juries know only what the documents say and witnesses testify to, which is limited by the parties’ legal strategies; and the jury may be shielded from things that under the rules of evidence they are not supposed to consider, even if you or I think it might be very important as part of the total universe of information.  Of course we don’t know all the facts; nobody does, nobody ever will.  Judges, juries, prosecutors, employers, friends, sponsors, fans and complete strangers, always, in every case, make decisions as best they can, with incomplete data.  That’s life.  If you’re hoping for metaphysical certainty for all your decisions, move to a different universe.  If you’re hoping for metaphysical certainly just in the case where a person is accused of rape, you should ask yourself why you need better information to make up your mind about that than you did to make up your mind about the last high-profile murder change in the media, and the one before that, where you gleefully declared your near-certainty having heard less than all of the media reports of less than all of the evidence presented to the jury.

Don’t bullshit me, yes you did.

The “presumption of innocence” is a rule of criminal jurisprudence.  In the US, it isn’t explicit in the Constitution, but has been interpreted (take that, constitutional literalists!) as inherent in the protections of the Bill of Rights, particularly the 5th and 6th Amendments, and has been established in Supreme Court cases since the 1800s as a right of people charged with crimes.  Canadians actually have it right in their Charter of Rights and Freedoms (Wikipedia has a handy list of where the right to be held innocent until proven guilty is set forth in various countries’ laws).  The Charter of Rights and Freedoms says:  “Any person charged with an offence has the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.”  Emphasis mine.  See that?  The right applies to people whom the government is trying to convict of a crime.  We, in the US, Canada, the UK, much of the West, have written protections into our governing documents that apply just to the State, because the State has a particular power to throw out asses in jail or stick us with a criminal record, and so we create hoops that the State has to jump through to do that.  With great power comes great responsibility.

But even the criminal justice system only “presumes” innocence for some purposes and not others.  You’re presumed innocent when you’re accused for purposes of the prosecution having to allege conduct that makes out the crime, and then prove every element.  But the police take the accused into custody — they don’t arrest based on trial evidence.  They arrest based on probable cause in the US.  They don’t say, “we have to presume you’re innocent until trial, you’re free to go!”  Judges get search warrant applications and they don’t say, “hey, we have to presume innocence, we can’t search just because someone may be guilty!”  They apply a probable cause standard, and issue warrants to get evidence.  They determine bail on other things entirely, depending on the jurisdiction, like flight risk and danger to the community.

With lesser power comes lesser responsibility.  What is the legal standard you must meet to decide you don’t want to hang out with someone anymore?  Beyond  a reasonable doubt?  Probably cause?  Reasonable suspicion?  Why, none at all!  Nobody gives a shit about your tiny little power to not be friends with someone, and so you can use it for any reason, or no reason, or an unfair reason; arbitrarily and capriciously, as you see fit, the the only recourse the rest of us have is to call you names.  You don’t have to be sure what Jian Ghomeshi did to stop liking him.

The Missing Stair

Cliff Pervocracy’s phrasing is brilliant and in many circles this is a must-read, though too many people have  never heard of it.  The “missing stair” is a rapist in a community that lots of people know can’t be trusted, but instead of excluding the rapist, they attempt to work around his social presence by quietly warning people, so that “everyone knows” to babysit the rapist and keep him from being alone with a potential victim.

There’s a view of rape that some well-meaning people and some not well-meaning people perpetuate, that it’s mostly not-bad people who rape, mostly because they get messed up or confusing messages and don’t know better.  Much of my work on this blog has been about debunking that notion, based on research, particularly Lisak and those who have replicated his results.  The “missing stair” only makes sense in the context of the kind of repeat offender that the Predator Theory describes as the cause of most rapes, and makes no sense in the context of the “accidental rapist” that some others argue for.  Rape isn’t the sort of problem where someone could do it by accident, over and over, until the people around them start to plot and plan to work around it.  Anyway, the “accidental rapist” thinking leans heavily on the idea that “miscommunications” happen by accident, that rapists don’t understand when they are being told “no.”  It turns out that there’s a completely separate body of research that undermines that notion; specifically in the context of sexual consent, people understand soft refusals; the issue is that they challenge or reject soft refusals, not that they don’t understand them.

To very quickly summarize, what I’ve named the Predator Theory holds that while some rapists are one-timers, the majority are repeat rapists, that the distribution is uneven — loosely what’s often called a Pareto Distribution — and that the repeat rapists account for a whole lot of the rapes, so that each rape is, on the whole, much more likely to have been done by one of the repeat rapists, a really bad person who knows exactly what they are doing, than someone who just made a mistake or had a terrible lapse in empathy and human decency one time.

(A note about Pareto Distribution — it’s what people reference with the very rough shorthand “80/20 rule.”  Describing it with language rather than mathematics, it’s a distribution that is highly skewed with a long tail — though I understand the mathematics to impose more constraints on a true Pareto distribution than is implied in the way people use the term.  It was originally a rule about wealth distribution, but it turns out to describe a lot of things, where a few actors or sources produce a disproportionate share of the outcomes or observations.  The most important major claim of Predator Theory is that rape is very unevenly distributed, that a small proportion of the population account for a large proportion of the rapes.  Describing the characteristics of these rapists is a problem that flows from first having concluded that it is important to do so because they are a distinct and critical subset, such that knowing who they are and how they operate is the key step in formulating a policy to reduce rape.)

If this is right, we’d expect a relatively few rapists to have lots and lots of victims.  Here’s where Ghomeshi comes in.

When we first heard about this, he was telling the public that CBC had canned him for his consensual sex life, which he called a mild version of Fifty Shades of Grey.

We now know that he was suspended because the Toronto Star told CBC they were going to run with a story, and we now know what they had.  They had three women who said that Ghomeshi beat them nonconsensually.  These accounts included punching with a closed fist to the head.  They also had one woman who was a Ghomeshi coworker, to whom he said and did wildly workplace-inappropriate things.

If he was a “missing stair,” as Cliff Pervocracy used the term, we would expect that there was more.  We would expect people other than the survivors to have knows.  In fact, in the aftermath of the initial reports, comment threads are full of people claiming that whole vast swaths of the Toronto music scene knew he was shitty, sketchy on consent, shouldn’t be trusted, etc.  So that’s consistent.

I don’t think we can predict how many victims a particular person has, either.  But we now know that Ghomeshi stands accused of nonconsensual sexual contact or violence by not three or four women, but eight, and that now at least one has been willing to use her name.  Another, while not using her name, has literally added her voice.

We also now know that one woman earlier reported behavior that is consistent with what the Mythcommunication research tells us about rejecting or challenging soft refusals; she used her name.  We know that she was targeted for abuse and harassment by his fans, which explains the decision of many others not to come forward until now.

Kink, Cover And The Social License To Operate

The stories about Ghomeshi together paint a distinct picture: he liked to grab and pull women’s hair, choke them, slap or hit them in the head and face very hard, and force them to their knees … and that he did this without warning, without prior discussion, without knowing if they were into BDSM or rough sex and without making any effort to find out.

Ghomeshi has characterized this as BDSM.  As a community, therefore, I say that we stand accused.  He says that what he does is what we do.  As a media reality, as a marginalized and misunderstood group, we can either stand up and define ourselves, or others will do it for us. Too often, it’s the latter.  Authors like Anne Rice and E.L. James write about us, while saying publicly that they are not kinksters.  (In Rice’s case I’m skeptical, but with James, I’m happy to accept her admission that she has not the first idea what she’s talking about.)

We’ve had incidents in the past where people who are engaged in abuse say, “hey, I’m just kinky,” claim consent and expect support.  In response to the terribly Bagley case in Missouri (which produced guilty pleas from every defendant, and long jail terms for most of them) I wrote what I think is an ethical bottom line for us as a community.  That was in the context of a man who claimed that he entered into a permanent master-slave relationship with a  teenager, where she thereafter consented to even the most painful and physically dangerous activities prospectively whether she liked them or not.  But actually, compared to what Ghomeshi has been accused of, that’s a more complex case!  Ghomeshi isn’t accused just of having kinky sex that crossed the boundaries of his partners.  He’s accused to assaulting women with no prior discussion.

I could start the next sentence with “if we as kinksters can’t all agree …”  But I know that we as kinksters can’t all agree.  On anything.  Even basic ethical principles.  Every kinky community has some hardcore misogynists and abusers, and some of them learn to talk in a way that normal people find more palatable and some of them don’t.  But unanimity is an impossible goal.  For more on the problems we see in kinky communities, see the There’s A War On series, which ran seven posts and about 21,000 words.

The best thing I’ve read by a kinkster on Ghomeshi is what BDSM activist and educator Andrea Zanin, also a Canadian, said:

A danger inherent in this kind of media-message success is that the “don’t hate me for being kinky” defence will be used by people who perpetrate non-consensual violence, and that we, as a community, will stand by uncritically – or worse, cry out in support – as victims of violence are once again silenced. I don’t wish to be complicit in someone’s misappropriation of BDSM terminology and codes as a shield for rape and assault.

The mainstream is watching.  If we throw out arms around Ghomeshi and say, “even if he did that, he should be defended,” we will have to live with that.  At The Cut, Kat Stoeffel wrote:

If Ghomeshi had done something nonconsensual, he wondered, “why was the place to address this the media?” In other words: A man’s shitty treatment of women is a private matter until it’s a felony. This kind of ethical flattening gives a man total social immunity in the spectrum of predatory sexual behavior that can’t be prosecuted as rape and paints anyone who criticizes him as attention-seeking and vindictive.

It’s especially frustrating considering the ethical pretensions of the BDSM scene. This is a community committed to protecting its right to play-abuse one another, insisting that play-abuse, when properly executed, is an expression of kink sexuality and a human right. One would think BDSMers would be falling over themselves to protect play-rape “victims” from actual rapists lurking in their midst, threatening the entire community’s claims to safety and play. I’m not saying Ghomeshi is such a person. (Although if three women came away from their dates unpleasantly shocked, he may have been doing rough sex wrong.) Yet when BDSM advocates retreat to a legal definition of rape in the face of mishandled play-rape, they weaken the entire premise of safe, above-board BDSM. The BDSM scene becomes just like the rest of the world: The abused are shamed into silence, so the abusers walk free.

Questioning a person’s sexual proclivities runs the risk of sounding like sex negativity or slut-shaming — this is the progressive mentality Ghomeshi’s lurid mea culpa appeals to. But sex-positive open-mindedness doesn’t excuse misconduct. If anything, it creates a greater responsibility. You ought to be empowered to do whatever you need to do to get off. If that means beating up a woman, and she’s into it, that’s fine. Pretty unimaginative, given the state of the world, but fine. It doesn’t seem like too much to ask that you are, then, extra careful not to abuse the very obvious power dynamic at play.  [Internal link removed.]

What Zanin and Stoeffel are both talking about is a kind of what I call “social license to operate,” the specific ways in which, if a rapist or abuser adopts a particular way of operating, he will be supported, defended and protected. Ghomeshi used celebrity and position for a long time, and now that this has failed to keep the survivors silent, he is trying to throw the mantle of consensual kink over himself as a defense.  In a community with no unity, whether this works is a scrum, and more of us have to push harder.  The marketplace of ideas is just as imperfect as other markets, and good ideas can be shouted down.  So if we care to be heard, we have to stand up and shout that what what we have heard is not acceptable, and we don’t defend it.