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Jian Ghomeshi Should Be Judged By Public Opinion, Not Courts

The case of a Canadian radio host brought to trial for sexual assault during BDSM shows why it should be perfectly feasible to stigmatize a behavior without taking it to court.


Jian Ghomeshi was a popular, suave, well-known and highly regarded radio host, a household name across much of Canada. He was suave, but also smarmy, and this was not a secret in his media and artistic circles.

In November 2014, he was charged with multiple counts of sexual assault, including one count of overcoming resistance by choking. He was fired from his radio show. In response, he wrote a broadly disseminated Facebook post, in which he explained that he enjoys rough sex, including forms of BDSM (bondage, domination, sadism, and masochism), but, he stressed, it was always consensual. One charge is pending trial in June 2016, but last month he was declared decidedly not guilty of all the others.

What are we to make of this descent into infamy? Two views have dominated the discussion. The first says Jian Ghomeshi is not guilty; Ghomeshi, therefore, won. The second says since Ghomeshi by his own confession enjoys violent acts in the bedroom, he should be found guilty in a court of law, regardless of the consistency of the evidence his accusers presented. Ghomeshi is guilty, hence he should not have won.

We Need Another Option

There is a third way to consider this troubling trial. It is that Ghomeshi is simultaneously guilty in the culture by moral standards, yet not guilty in a court of law. This view encapsulates the idea that what is legal is not always moral and what is moral is not always legal. It should be perfectly feasible to stigmatize a behavior as wrong without taking it to court.

This ‘immoral but legal’ view is being lost in our relativistic worldview.

This “immoral but legal” view is being lost in our relativistic worldview. For one, we find it hard to castigate almost any behavior as right or wrong. Attaching stigma to a morally wrong behavior becomes even harder when we choose not to make the behavior illegal or criminal.

Another reason why this libertarian worldview is so difficult to hold is because when we legalize certain acts, we don’t just legalize them. In many instances, wrong behaviors come to be legalized through enduring normalization campaigns. These aim not merely to legalize, but also to de-stigmatize. The public relations campaigns accompanying legalization muddies the waters around whether a behavior is good or bad in its own right.

Take Prostitution and Euthanasia

Two examples may help us to understand this. One is prostitution, and the other is euthanasia, although any number of contentious social issues—drug legalization or abortion, for example—could make the same point.

The goal is not simply to take a wrong behavior and declare that people have individual rights, even to make their own mistakes.

When we debate legalizing prostitution, the goal is not simply to take a wrong behavior and declare that people have individual rights, even to make their own mistakes. Rather, we begin reading articles by self-described high-class prostitutes about how this is their chosen career path. Dominatrixes are re-fashioned as entrepreneurial business owners. Speaking negatively of prostitution becomes judgmental. The de-stigmatization campaign casts prostitutes as normal people doing normal things.

The idea that prostitution is wrong, that it’s a harmful course of action for men and women to engage in, but that we ought not prosecute any aspect of it, holds little persuasive value.

In the case of prostitution, the public relations case for normalization has not (yet) entirely been won. But with another social issue, it has.

In February 2015, Canada’s Supreme Court decided that the right to life purportedly included a right to death. Leading up to February 2015, we witnessed a series of very tough cases, where assisted suicide was desired, chosen, kind, and compassionate. Pro-assisted suicide organizations dropped the term “suicide” like a hot potato. It didn’t sell as well as “death with dignity.” The self-evidently macabre and disturbing manifestations of the movement were shelved—the do-it-yourself death kits being sold on the Internet and the boldly malicious Dr. Kevorkian all but disappeared.

Killing yourself with help became compassionate behavior, not at all to be associated with your garden-variety suicides of the unplanned variety. The idea we now grapple with is that assisted suicide is a social good in its own right.

Everything Immoral Doesn’t Need to Be Illegal

Where does this leave us for Ghomeshi? Well, for starters, we need to condemn his personal sexual expression, consensual or not, as immoral. The most troubling outcome of his trial would be for anyone to stand up and say he did nothing morally wrong. He did, even if this trial found that it was not, by the standards of our justice system, a crime.

Ghomeshi could be the poster boy. He has a sexual preference, which he has morphed into a right.

The libertarian ideal is that laws don’t dictate the virtuous, rather that individuals can and should act virtuously without the law’s compulsion. Unfortunately, after the sexual revolution what we see more of are libertarians as libertines. Here, Ghomeshi could be the poster boy. He has a sexual preference, which he has morphed into a right.

Ghomeshi won, but only in court. His relationship standards won’t ever achieve the love he desires. Let us hope he doesn’t need to be successfully prosecuted for truly criminal behavior (strangling for sexual pleasure can lead to homicide, after all) to learn this lesson.