Marie Henein: Not a feminist, not a surprise

Ghomeshi_Henein

Marie Henein, the now-famous lawyer who defended sexual predator, Jian Ghomeshi, in his recent sexual assault trial, would like us to believe she chose the most ethical route towards winning the case.

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 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 defense 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 say that lawyers like Henein are a little sociopathic: “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 manipulatively labelled, “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.

Meghan Murphy
Meghan Murphy

Founder & Editor

Meghan Murphy is a freelance writer and journalist. She has been podcasting and writing about feminism since 2010 and has published work in numerous national and international publications, including New Statesman, Vice, Al Jazeera, The Globe and Mail, I-D, Truthdig, and more. Meghan completed a Masters degree in the department of Gender, Sexuality and Women’s Studies at Simon Fraser University in 2012 and lives in Vancouver, B.C. with her dog.

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  • Lucia Lola

    Fucking spot on. That she sits above it all, knowing full well what she’s done tells you what level of human being she is. Which is to say, the most lowest form of one.

    • lagattamontral

      Remember her tactics during the vehicularly homicidal Michael Bryant case…

  • Xodima

    Amazing write up! Thanks for this. I admit, I was one of those terribly pissed at first but this is so on point

  • Erin Wallace

    Always incisive. Thank you, Ms. Murphy.

    • Meghan Murphy

      Thanks Erin.

  • Cassandra

    A special circle of hell is reserved for criminal defense lawyers, that’s for sure. Women will never be liberated under patriarchy/capitalism/the institutions of law made by men, for men. It’s all inseparable and it must be dismantled.

  • TheArtistFormerlyKnownAsYoya

    There’s a certain “burn the witch” mentality going on with Marie Henein. Apparently I need to state the obvious, that her tactic of smearing the victims is disgusting – but it’s the most effective tactic to take. As a society we are collectively getting the vapours over a woman using this strategy. But we shouldn’t – in the existing system this is how you win a case like this. Our expectations that women be “nice” and “helpful” is what makes us so outraged at Henein. Truth is her defense of Ghomeshi is despicable whether coming from a man or woman.

  • Meghan Murphy

    It’s not that I believe anyone who believes in our justice system is a sociopath, but I do think when one chooses to defend a person they know full well has abused, assaulted, or exploited a girl or woman, and relies on sexist ideas and tactics to do so, because they are being paid a great deal of money, it’s fair to say that they are lacking in empathy and a feminist politic.

    • Hiri Nurmi

      However we’ve established by the trial that Gomeshi did not abuse or assault these women.

      • Meghan Murphy

        I can’t tell if you’re joking or not.

      • lagattamontral

        That was never proven.

    • David

      Thanks, Meghan, for your reply.

      The point I was trying to make is that our justice system wouldn’t be fair unless every person – the guilty and innocent alike – are defended. Our system needs defence lawyers who defend every single person accused of a crime, no matter what we think we know full well. This doesn’t make them sociopaths. This doesn’t mean they lack empathy. They play a very important institutional function.

      Lots of innocent people have been widely thought to be guilty before being exonerated either in court when the evidence is challenged, or tragically much later after spending years in jail. Should they not have been defended since, before the trial, everyone knew full well that they were guilty?

      The fact is we get things wrong, and the justice system is set up to ensure, as much as possible, that we don’t make avoidable mistakes. Every person involved, from police to crown to defence to judges plays an integral role.

      Yes, sometimes guilty people go free. I think Ghomeshi committed the crimes in question, but the evidence presented in court did not prove his guilt beyond a reasonable doubt. But the same rules and procedures that allowed him to go free also protect innocent people from being convicted.

      • Meghan Murphy

        Well, in this case we know that Ghomeshi is guilty. Henein knows he is guilty. She chose to defend him anyway.

        It’s not that I think people accused of crimes shouldn’t have defence lawyers — certainly they should. But do those defense lawyers need to support and rely on sexist stereotypes/mentalities in their defenses?

      • Carimé

        I’ve really enjoyed reading the points David brings up and the thoughtful discussion that followed. What comes to mind for me as far as the justice system is that if you were accused of a heinous crime you didn’t commit (I’m not referring to Gohmeshi here) you sure would want someone in your corner. Especially if everyone thought you were guilty. I’m a woman and I’m with David on this one….

  • Meghan Murphy

    Thank you

  • Meghan Murphy

    Well, because Henein doesn’t have to be a feminist. I would call a man in her position sociopathic as well (and did say as much in the piece). It is true that she was just doing her job in the way any man would. I don’t think it’s unfair to note that Henein profits from hurting women, but when men profit from hurting other men, do we call them traitors to their sex? I mean, being a woman and being a feminist is not one in the same. We can demand political solidarity from those who share our politics or are part of this movement, but she clearly does not share our politics.

  • It’s really annoying when people argue against something without having “heard” what that something actually is. Reread Murphy’s fourth paragraph, and you will see that all your comments are irrelevant. Your comments are the cliches, the canned goods, that the legal system trots out whenever called on to justify the verdicts that give white men legal rights to destroy women and ethnic minorities. When a white man has clearly harmed a less priviledged person and gets away with it because the system permits and encourages the trashing of the victim/witnesses, he is given legal rights to harm. The system is not geared to find truth, be fair, or dispense justice. It’s an adversarial system designed to give previously all male lawyers forums in which to act out their ego needs to compete, to dominate, to bully and to win. How might the system actually serve the public better? Perhaps if the accused were required to testify, and if his testimony would be subjected to harsh, lengthy and intense scrutiny. As in: ‘why do you think, sir, 193 women over an 18-year period have accused you of rape?’

  • Alienigena

    Ms. Henein chooses the cases she defends. No one compelled her to defend Ghomeshi. I doubt that she did it out of the goodness of her heart. She seems pretty clinical in her approach to her career. Build a reputation by winning difficult or controversial cases. Does she routinely take on the cases of poor defendants accused of spousal abuse or sexual assault? That you focus on the presumption of innocence for this particular client is a bit suspect. He was well to do, well known. And everyone (including his female guests/acquaintances, including a noted feminist) was happy to jump on the ‘presumption of innocence bandwagon’ when the news of his behaviour first broke in the mainstream media. What is the relevance of the statement “if accused persons are prevented from making a full answer”? When did Ghomeshi ever make such an effort? He didn’t go on the stand, likely a decision made on the advice of his lawyer. So her legal strategy prevented him from making ‘full answer’. The legal mindset is just one mindset, a way of thinking about the world. To claim it is superior to other mindsets (e.g. scientific, feminist, philosophical, religious) is not supportable, given how the law has treated the poor and women in the past (and present). Your post just seems another example of male ‘slight of hand’ trying to distract from the real issue. Ghomeshi received the best defense money could buy. The complainants did not receive the best representation or advice.

  • Meghan Murphy

    Of course! I respect your opinion, even if we disagree slightly. These conversations are not unproductive — argue away 🙂

    I do see what you are saying, and don’t entirely disagree. At the same time, sure, she and anyone else who engages in misogynist behaviour could be viewed as a traitor to society/the social good, but my point is that their goals are different than ours. They aren’t interested in created the same kind of society we are and they hold different values than we do, so I have a hard time saying that people who were never on our side to begin with are traitors.

    She has no obligation to her sex if she is not a feminist — she doesn’t see things that way.

  • lagattamontral

    I don’ t think Henein was a traitor to women because of her sex; it is because she declared that she was a feminist. I’d feel exactly the same about a man who claimed to be a feminist.

  • Meghan Murphy

    Could he not have a court-appointed lawyer? Could he not have a lawyer who didn’t work to present female victims as manipulative, lying, sluts? Could we not focus on HIS behaviour instead of the women’s? Why does he get to choose his lawyer simply because he is richer than most? It is an absolutely unfair system that favours those who are already in positions of power.

    I would be critical of any lawyer who chose to represent Ghomeshi and would see them as unethical. The fact that she decided to use victims’ bikini photos and love letters against them, as though that somehow makes Ghomeshi not guilty of abuse, was unethical and unnecessary.

    “I really have trouble seeing how Henein’s defence relied on sexist stereotypes/mentalities. Can you be specific?”

    I think I was quite specific in the piece.

  • Meghan Murphy

    She is being criticized because SHE chose to take the case. And because of her tactics in the courtroom.

  • “The reliability and credibility of a witness matters in every criminal
    trial, not just those of sexual assault, and they matter equally whether
    the witness is a man or a woman.”

    I am not an expert, but I thought a large part of the problem is that witnesses in sexual assault trials are held to much higher standards than they are in other kinds of trials. If the credibility of witnesses were held to this standard in every type of trial, then it might be different (though conviction rates would be much lower). It is close to impossible to convict someone of sexual assault, from what I gather.

    • Tired feminist

      I hear you. However it strikes how much the victim’s sexual history is regarded as counter-evidence, compared to how little the perpetrator’s sexual history seems to be regarded as evidence.

  • Meghan Murphy

    But exactly!! “The guilt or innocence of victims isn’t in question. They’re not accused of a crime”…. So why were THEY put on trial and not Ghomeshi?? Why did Henein focus so heavily on the behaviour of the victims, ignoring all of Ghomeshi’s actions?? Why was Ghomeshi permitted to hire such a very expensive lawyer to defend him? I mean, none of this seems “just” to me.

  • David

    I think there’s a few different issues that often get run together.

    One is the reason a complainant has contact with an accused after the alleged assault. As you explain, there are many reasons and they are often difficult to understand from the perspective of a third party.

    Second, and relatedly, is the relevance to the accusation. Most of the time the post assault contact doesn’t mean the assault didn’t happen nor does it mean that whatever happened was concensual. Which is to say, most of the time it is irrelevant. But some contact might be relevant, it might raise reasonable doubt, it might be exculpatory. So presumptively excluding it might preclude a fair trial. I think there’s good reason to be able to introduce it. And the prosecution and defence can make their specific cases as to its relevance.

    Third, seeing as how post assault contact is not now presumptively excluded, when asked claimants have to be honest. Dishonesty seriously undermines their reliability and credibility. Claimants and witnesses can’t be allowed to self-edit their statements. It’s this fact that the judge took issue with.

  • Meghan Murphy

    “If every accused person is entitled to a lawyer, I don’t see how you can call any lawyer who represents Ghomeshi as unethical?”

    Again, she did not have to take his case. She chose to. And she chose to defend him by attacking his victims in a very sexist way. I’m sure that if every lawyer in Canada refused to represent him, he would have been given a court-appointed lawyer.

    You cannot consent to abuse in Canada and whether or not the victims had contact with Ghomeshi after the assaults has no bearing on whether or not the assault happened. NOBODY believes the assaults didn’t happen — not even the judge, from the sounds of it. Ghomeshi’s argument was not that he didn’t behave abusively, but rather that his victims were part of some kind of consensual BDSM relationship with him. I disagree that, considering these circumstances, it was necessary for her to bring up bikini photos or ‘love letters.’ I was kind to my abuser after he abused me, too. Does that mean his abuse isn’t abuse? Or that I consented?

  • The point is that the system as a whole does NOT function — for the poor, for women, for other minorities. If it did stalkers would be locked up before they could kill, men who threaten women would be locked up before they could make good on the threats, revenge porn would be criminal and the penalty years and years in prison, etc., etc. 300 odd women per year in Canada would not be killed if the legal system was remotely interested in working for the protection of women. Men are routinely and constantly and insistently presumed innocent DESPITE mountains of evidence to the contrary, when it comes to crimes against women.

  • Meghan Murphy

    Surely you know what I mean when I say they were ‘put on trial.’

  • Morag999

    “I do not understand how an actively anti-feminist female is not a traitor to her sex. Collaborators are, by definition, traitors.”

    I agree.

  • Tired feminist

    EXACTLY. I agree that she sounds sociopathic.

  • Tired feminist

    In the case of sexual assault, it does fail due to its basic architecture. It’s virtually impossible to convict someone of sexual assault because, often, there’s no evidence.

    • I am imagining a little cartoon (unfortunately I can’t draw). A trial: Tim is accused of beating up Bert and stealing his car. The facts have been ‘proven’ — Bert has bruises, Tim’s DNA was found, the car was in Tim’s garage. Now the defense attorney steps up to Bert and fixes him with a glare. “Is it not true that you, in fact, invited Tim to give you a beating? That you gave him your car in gratitude? And are you not now maliciously prosecuting him because you changed your mind? How many other people have beaten you up because you asked them to? We have five of your former girlfriends in court willing to testify as to your masochistic tendencies. You gave consent, didn’t you Bert? Didn’t you?”

  • Tired feminist

    Surely you’re embarassing yourself here.

  • Tired feminist

    Meghan is not “wanting to treat Ghomeshi differently”. She’s pointing out aspects of how our justice system fails victims of sexual assault that you would otherwise probably not have considered.

  • JustASC

    It is illegal to punch someone in the face and it is illegal to strangle a person. There is no clause in the law that I’m aware of that states these two things are okay if the punched or strangled person consented to it. Therefore, it had to be proven that he did those things. He himself has admitted to it; his claim is only that his victims consented. That’s a confession. The behaviour of the victims afterward is absolutely irrelevant to this case, but the fact you want to continue to pretend it is makes me wonder what your actual motives are. Then again, maybe you’re just defending a bro. I wouldn’t expect a man to take a woman’s side over another man’s unless he’d already proven his more than basic decency as a person.

  • Not to mention that male murder of women was absolvable if it was a “crime of passion”. Poor man, couldn’t help himself. When did that end?

  • TheArtistFormerlyKnownAsYoya

    Thanks for coming out.

  • Natalia Moskwa

    Right on Meghan! This is the most coherent article I’ve read about the dynamics of the trial. You give voice to the collective unease a lot of us feel about Marie Henein. While we’re careful not to slam other women, your article illustrates that it is a certain set of behaviors that define the patriarchy. It’s not witch burning because Marie Henein is the anti-witch.

    • Meghan Murphy

      Thanks Natalia

  • marv

    Sexual assault is not on the same level as other types of violence. You are overlooking the reality that the criminal justice system developed out of white male hegemony. It is biased from the onset to protect men’s prerogatives over women. As a member of the advantaged class you are unable to see this with clarity.

    Within the patriarchal backdrop of sex law women won’t have justice unless the accused are presumed guilty. Men would have to prove beyond a reasonable doubt their innocence.

  • Meghan Murphy

    Yes, I know that she claims as much… I mentioned it in my piece. Yet she is NOT a feminist — she in not a part of our movement, despite what she calls herself. I, like Independent Radical, don’t see her as a traitor as she was never ‘with us’ to begin with. She clearly thinks being a ‘feminist’ (as many do these days) simply means ‘being like men’ or ‘being a strong woman’ or ‘succeeding in one’s field’, which is simply not the case. Sorry for being unclear.

    • will

      Oh Gawd!! I just read in that link from your piece that she’s a pro bono shill for the sex industry. This woman just keeps on giving.

      Enough. I’m stepping away from the world and having a whiskey.

      hugs,

      will

  • will

    Thank you.

    To be clear: I have not argued that her actions are worse. I have argued that they are significant. A media-charismatic woman who calls herself a feminist and hurts women for her own gain has a different significance than a man who does.

    And I suppose that depends on your definition of “worse”. More morally reprehensible? Arguably not. More damaging to society? I would argue yes.

    • will

      And further, I did not argue that “as a woman” she owes justice to women. I argued that as a highly educated person working in justice, with a high public profile who calls herself a feminist, she contracts to deliver justice and feminism.

  • Tangelo

    Not a funny or reasoned response, just disturbing. What’s your point?
    I find the Artist F.K.A. Yoya’s posts worth reading and considering, even if I don’t always agree with them.

    • TheArtistFormerlyKnownAsYoya

      Thanks Tangelo. I’m not sure Mint Tea understood my comment and thought I was disagreeing with Meghan. In any case, strange way to respond.

  • will

    “They’re not accused of a crime”

    Wrong. In the Court of What is Actually Going on, they are being accused of being slutty, volatile, dishonest, conspirators who frivolously want to take down an innocent man. Ya know how them women are…

    “and their liberty is not at stake.” Wrong again. Anyone who has sustained rape or sexual assault, especially in a relationship of trust, experiences a loss of psychological and emotional freedom. And one of the only ways to regain some of that freedom is to see justice through retribution to one’s attacker. When your attacker is a powerful man who you know is hurting people repeatedly with impunity, your freedom and safety are even more compromised.

    Surely you can exercise enough imagination, enough empathy to comprehend that.

    • Chris731

      The three women are most definitely not accused of a crime. They weren’t facing years in jail like Ghomeshi did. They face no sanctions now. Our legal system spent huge resources bringing their claims to court at no cost to them.

  • Chris731

    The case was lost because three people lied under oath numerous times. They lied under oath to the police and then lied under oath again in the courtroom.

    In Canada, we don’t send people to jail for years based on the testimony of people who have lied. They probably do in North Korea though.

  • I think “crime of passion” and “honour killing” are quite different things. And aren’t “honour killings” committed primarily by “brown” men (arabs, middle easterners, south asians)? Regardless of skin colour or ethnic background, I think it’s safe to say these types of killings are evidence of an evil misogynistic death culture.