A Pennsylvania jury has failed to reach the necessary unanimous verdict in the prosecution of Bill Cosby for sexually assaulting Andrea Constand, leading the judge to declare a mistrial.
My first reaction to this news, which I woke up to on Saturday morning was, predictably, anger. This was the only one of 33 similar fact complaints against Mr. Cosby that could be prosecuted because of the Statute of Limitations (which I am proud to say Ontario repealed in 2016 for sexual offences, as should every other jurisdiction that respects victims). The courage of the complainant, Andrea Constand, as she gave testimony (something that Mr. Cosby did not do) and survived grueling cross-examination was remarkable.
And now – although we can hope for a retrial – it is all for naught.
But it is my second, more measured reaction that I want to focus on in this blog. Because there is something very familiar to this story.
We Ignore the Evidence
Sexual assault cases are not just the story of failed prosecutions (of the miniscule number of actual complaints brought to police), although many of us still think about the failure of the Ghomeshi prosecution with a shudder.
And it is not just the vilification of victims, prosecutors, and even judges, that always pops up in these trials.
What strikes an eerie resonance is how our culture rejects factual information that is in plain view: a rejection of empiricism, if you like.
- 33 women, who considered Mr. Cosby their mentor, have told almost identical stories of drugging and assault.
- False reports of rape and sexual assault are extremely low. A 2011-12 study in England & Wales commissioned by the Director of Public Prosecutions shows 35 prosecutions for false allegations for rape compared with 5,600 prosecutions for rape in the same period. Another study shows that where complaints judged as “baseless” (meaning the reported incident does not meet the legal criteria for a crime, but is presumed to be truthful) are separated from those judged “false” (the reported incident never happened), US studies consistently show false reporting of 5% or less.
- Stats Canada data indicates that only 1 in 10 sexual assaults is reported to police, and that the incidence of reporting has been declining for a decade.
None of this proves Mr. Cosby’s guilt beyond a reasonable doubt, of course – but these studies throw an awful lot of cold water on the idea that the force of nature Mr. Cosby faces is actually a huge conspiracy orchestrated by malicious forces against the once-beloved entertainer.
We Focus on Exceptions
As the dust settles around the responses to the Family Legal Services Review (now being considered by the Law Society of Upper Canada), I steeled myself while reading some institutional submissions (from the Ontario Bar Association, the Ontario chapter of the Association of Family Conciliation Courts, Family Mediation Canada and others).
Throughout these submissions, there was repeated reference – sometimes explicit, sometimes by snide insinuation – to family litigants representing themselves by choice.
Unfortunately, this SRL stereotype still has traction – we have made some inroads to reality in the last five years, but not enough to exclude the appearance in all these documents of the “willing SRL”.
Sound familiar?
Just like debates over sexual assault (substitute welfare fraud, domestic abuse reports, Organized Pseudo-Commercial Litigants, voter fraud, you can go on adding to this list…) our focus on the “aberrant” overwhelms and obscures our analysis of the “genuine”. And it flies directly in the face of the data (I shall not repeat for the nth time in this blog reliable sources for the reality that the vast majority of SRLs are without counsel because they cannot afford one, or because they have run out of funds).
We Cling to False Narratives
The debate over the Cosby offences – just like the one that took place closer to home around the Ghomeshi trial – exposes our desperation to cling to comfortable, familiar, non-threatening falsities and flawed analysis. We are doing what conflict theorists explain as “confirmation bias” (finding the arguments to reinforce what we already believe to be the case). Especially when those arguments are in our own self-interests – for example, legal profession protectionism, escape from charges, acquittal at trial, or suppressing the vote.
We use positive claims like “fairness”, “balance”, “efficiency” and “due process” to shore up our false narratives.
We use phrases like “liberal media bias”…
And then there is my personal favourite: “It’s complicated.” (End of conversation.)
Facing Our Resistance
Each of us holds at least one, and probably many, false narratives that fly in the face of the evidence. Figuring out that we are clinging to them is a hard thing to do.
The most important work that the legal profession has to do – whether in family law or in defending or prosecuting sexual offences – is to expose those false narratives to the evidence.
The legal profession prides itself on making decisions for clients based on credible data. We need to bring that thoroughness, honesty and reflectiveness into the way that lawyers understand the reality of sexual assault and its impact on victims, the struggles of SRLs, the need for affordable legal services, and many other issues.
Let’s be a proud, evidence-based profession, and not a collection of climate change deniers.
In Canada we live in and elected Dictatorship no longer a Democracy (as a Democracy is required to be a free and just society) as with “NoAccess2Justice” we have been seized by a Party of Dictatorship Rulers of the receptive enslaved,
Regarding sexual assault cases, you have failed to identify the “celebrity factor”. We live in a culture where we elevate celebrities to a special status that if not absolving them completely of behavior deserving of condemnation, certainly gives them an edge the rest of us do not have. (Look at who is President of the United States now.) Women are as guilty of this act of social elevation of others as men, the Jian Ghomeshi matter in Canada being an excellent example of this. I recall reading of a young female intern complaining to a female producer at the CBC about Ghomeshi’s sexual harassment and her complaint being dismissed by the producer as, in her words, delivered laughingly, “oh I see you’ve had the Jian treatment.” If Bill Cosby had pumped gas for a living, he’d probably be doing time.
The real problem is that victims of sexual assault aren’t getting the legal advice and help that they need in order to substantiate their claims. Unfortunately, this article is not very helpful for those women who are looking for practical information as to how they can substantiate their claims – at a time when they are not yet comfortable to go out on a limb to speak to police or other third parties.
Some of these assault victims may interface with women’s groups or help centers, but unfortunately, no one is providing the women’s groups with helpful information to pass on, either.
There are many ways of looking at the Ghomeshi case. But one fact that stands out – from what I have seen of the public record – is that Ghomeshi appeared to take special care to create and preserve an evidentiary trail in regard to his interactions with the complainants soon after the incidents complained of.
The contemporaneous documentation of these interactions formed the guts of Ghomeshi’s defence. In general, in terms of credibility assessments of evidence, contemporaneously generated evidence usually trumps witness testimony that has been generated for the purposes of litigation or prosecution.
As a lawyer who deals with dispute-related matters (i.e. litigation), I recognize the crucial importance of “capturing” evidence by way of preserving a written record of the interaction between the disputants, especially when the dispute is still “in play.”
Moreover, victims should be informed that one can generate contemporaneous evidence that does not require that the victim continue interacting with the perpetrator. There are ways to contemporaneously diarize the incident, to document specific details that might not seem so important now, but could be of crucial importance later in terms of corroboration. Everything from restaurant receipts, phone records, ATM receipts, and even DNA on clothing might be of crucial importance in ways that the complainant may not appreciate now.
Once a claim or charge has been filed, everything changes. The defence is on guard, while the plaintiff is seen as retrospectively “padding” their case in order to substantiate the claim. That is why courts instinctively value contemporaneous evidence, generated close to the time of the incident, rather than post-facto witness testimony, which is often seen as being created for the purpose of substantiating a charge or claim.
From an evidentiary point of view, this means that the time to consult a lawyer is not when you are ready to file a claim or complaint, but rather when you realize that you are in a dispute, when you have been assaulted, or defrauded.
When you file a claim, you have put the defendant on notice that you are in dispute, and so, they immediately put themselves in a defensive mode in terms of what hey will say to you in their interactions.
First and foremost, as soon as you realize that you are in dispute, you need to establish a pattern of communicating by way of email, to “capture” and document the dispute as it plays out – whether the dispute is of a civil or criminal nature.
In the Ghomeshi case, it appears that Ghomeshi was mindful in terms of prompting a certain response from the women by way of email, soon after the incident complained of. It seemed to me – and I am not an expert on all the facts – as soon as he was able to sufficiently “bait” the women by showing interest, and obtaining a positive response after the incidents in question, contact was eventually broken off. Whether or not Ghomesdhi intended this, the simple fact is that the preservation of contemporaneous evidence was a crucial factor in raising reasonable doubt.
From an evidentiary point of view, general statistics are irrelevant and unhelpful, since judges must approach the evidence on an individualized case-by-case basis, and not “play” the statistical odds when evaluating the credibility of evidence and witness testimony. As for those statistics, they really tell us very little, particularly when one factors in the question of onus.
When one reports an incident of abuse, for instance, the police look first and foremost at the quality of evidence that is available. In this respect, a “baseless” complaint tells us very little as to whether or not an abuse incident actually happened, but only about the evidence that is available to substantiate it.
So, too, with respect to complaints adjudged to be false: it just means that the police were able to source a suffcient amount of evidence to substantiate that the claim did not actually happen. I would assume that in the majority of complaints adjudged to be “baseless”, the police just couldn’t gather enough reliable evidence to establish what was true or what was false. In the end, it often just comes down to a dearth of available evidence to substantiate the occurrence of the incident in question.
All of which is to say that the legal profession is not properly advising victims of sexual assault as to how they may properly substantiate the crimes that have been perpetrated on them. What complicates the issue is that such victims are often not clear as to what happened until some time has passed, and they are often reluctant to share private matters with others. Ideally, they should be able to reference public information on their situation that would alert them to these issues of which they remain unaware.
Here is where women’s helplines could be of assistance in offering helpful suggestions, but these women’s groups need to consult with lawyers who can provide them the helpful general tips to pass on to callers.
Unfortunately, very few lawyers out there think about these issues in this manner, and so, the level of public debate is highly superficial, resulting in a situation in which truly helpful information is effectively kept hidden from those who most desperately need it.
I hope that I have done my thing in contributing to the public discourse on this crucial issue. So long as this evidentiary issue continues to be neglected and overlooked, abuse victims will continue to be denied the justice they – and, by extension, the public at large – so desperately require.
And then there is actually what the courts and the entire judicial system does with evidence they do not like. hide it,, refuse to release, deny. as in my case, with the problems inherent with the dna industry, the lack of regulation , the lack of standardization, and a complete refusal to release entire files, always hiding behind the privacy act. Then,, I actually got a dna expert witness, to review what little evidence I could get, and it was found to be UNRELIABLE, not my daughter or myself, and had no chain of custody for any of it. Yet the courts refused to discuss any of this, no comment on any of it. since they could not say my daughter did not look like her father, who is Asian, I am not. the defense simple said “looks don’t count”. since we all know we look like the people who make us, I have no idea what the court is doing. there were several tests done, all had problems, but in the beginning, when I was tackling the first one, the response was, well it doesn’t matter, the second one was good,, when that was proven unreliable, the response was,,,,,YOU GUESSED IT! THE THIRD ONE WAS GOOD. The courts and defense have been on the hunt for anything not to say what by now we all know. there is a problem with the reliability of the evidence in court now.. and with this entire case. exactly as was written in this article,, the courts are refusing to actually honestly look at the evidence. justice cannot exist under these circumstances. it never existed. this in my case, is all fraud. no one wants to say the word, here it said. nothing. why? because the judicial system likes not thinking. dna without examination requires nothing of the judges, and no defense exists. they just have to believe whatever shows up from the dna labs. So,.. this is who is now running our courts, and our judicial system. shame isn’t it. I always imagined our lawyers and judges were smarter then that. not so much it seems.
I pose a question for anyone with knowledge of this. we have a federal evidence act. it sets out the conditions required for evidence to be court admissible. why do the courts not follow it? For the self represented, we read the rules, then discover the court does not follow them. It does as it pleases. disregards whatever it does not find comfortable. how can the chaos within the courts not be attributed somewhat to the disregard the courts have, for following the rules of the court????
Ms. Olson, what you experienced is entirely typical. This is the challenge presented by self-reps for the courts. SRL’s are outsiders to the system, and no matter what is done this will always be so. The system is controlled by and for lawyers be they judges or lawyers or potentially other court officials. In effect, what you interpret or say to be the law cannot possibly be the law because you are not a lawyer. Similarly, you cannot diagnose an illness because you are not a doctor; nor can you audit a company because you are not an accountant.
It would be unprecedented for the legal profession to let you “cut their grass” by conceding you have correctly discerned and applied the law. You have to stick to the facts and only the facts, and leave the legal interpretation to the judge. And you have to hope and pray that individual is feeling gracious that day.
We live today in a world exponentially more complex than the one of just a few generations ago. Thanks to electronic media that began, not so long ago, with broadcast radio and then television, we are inundated with information and opinions. But our brains are no bigger than those of our pre-industrial age forbearers.
Maybe we’re asking a little too much of ourselves.
A few days ago I noticed in a bookstore three softcover copies of “Plutocrats: The Rise of the New Global Super-Rich and the Fall of Everyone Else”. I’ve borrowed the VPL’s copy of the hardcopy edition. It was published in 2012. I thought the author’s name looked somewhat familiar, so I did the obligatory Net search. Chrystia Freeland was still just a “journalist” when she wrote that book (not her first). Now she is Canada’s Minister of Foreign Affairs – http://www.pm.gc.ca/eng/minister/honourable-chrystia-freeland.
One of the more amusing points she makes is that the very rich are jealous of the uber-rich. So now I’m putting some thought into the connections between what evidently concerns Chrystia Freeland – income and wealth inequality – and the chronic problem of access to justice inequality.
In just over a week there’s going to be an historical (at least by Canadian standards) gathering of the elites of the justice community (and friends) in Cambridge, U.K. They’ve been holding these gatherings bi-annually for many years.
The program for this year – http://www.canadian-institute.com/english/CambridgeLectures2017.pdf – is found on this rather uninviting website – http://www.canadian-institute.com/english/. Click on “Site Map” to see what else is there. These people go to these events to recite to each other a false narrative – about how indebted the rest of society is to them for the gift of “the rule of law”.
Do they all actually believe this narrative? I rather doubt that. But they go though the motions of reciting it in part to ensure that nobody breaks ranks and starts telling the truth. Because even one person daring to speak truth to power is considered dangerous.