Judge says 'believe the victim’ slogan has no place in a criminal trial, rules cops not guilty: DiManno
The judge’s only option was to find three Toronto police officers not guilty of sexual assault — but she did call out the defence’s ‘irrelevant evidence,’ writes Rosie DiManno.
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Not guilty but not so innocent either.
Not proven beyond a reasonable doubt.
And not worth it, maybe: The invasion of privacy, the savagery of cross-examination, the dismantling of a woman’s character.
There was no surprise in the acquittal Wednesday of three off-duty cops charged with sexual assault.
There was just a judge — a wise, widely respected female judge — palpably gritting her teeth, on the bench reading aloud and in her written decision issued, which found the defendants not guilty of forcing sexual acts upon a nonconsenting female parking officer.
There was too much doubt, much of it emanating from the complainant’s lengthy appearance in the witness stand, subjected to unconscionable character assassination.
Some of those lapses were trivial and insignificant. Others were more problematic, especially when placed against the evidence of a toxicology expert who testified that the complainant’s alcohol consumption, based on her own recollection of drinks imbibed, was inconsistent with the symptoms of blackouts, nausea and immobility which purportedly ensued.
The complainant — whose identity is protected by a publication ban — maintained that her body was unresponsive, her mental will useless, such that she was unable to fend off the unwanted simultaneous sexual acts by all three accused — intercourse and fellatio — inside a room at the Westin Harbour Castle Hotel in the early morning hours of Jan. 17, 2015, following a night of pub crawling.
A blood-alcohol concentration — estimated and projected, given the complainant’s account, her height and weight — of between 65 milligrams and 90 milligrams of alcohol in 100 millilitres of blood, “would not come close to” the level of impairment required to cause memory blackouts and loss of consciousness. The complainant leaned heavily on that scenario to explain away inconsistencies in her testimony.
Such symptoms could only be contributable to the ingestion of a drug, which was the complainant’s firm belief, although she could not point to an instance where her drink might have been spiked and there’s no evidence of that occurring in the surveillance tapes available.
Further, as the expert from the Centre of Forensic Sciences testified — a Crown witness — had the culprit been GHB or ketamine (common rape drugs), the effects would have been felt within 15 to 30 minutes of ingestion, peaked and then disappeared within half an hour. No memories, rather than patchy memories, would have resulted from that blackout period.
AB (the initials made up by the judge) did have memories from that sordid hotel room encounter. Also, upon arrival at the Harbour Castle, she is seen on video getting out of the cab without problem, then conversing normally with two of the accused as they wait for an elevator.
“That does not mean that AB was lying about these symptoms,” Molloy observed. “It is possible she has an inaccurate or unreliable memory of her symptoms. It is also possible . . . that she has reconstructed a memory of her own participation in the hotel room and believes it to be true.”
Throughout the month-long trial, defence lawyers — and Nyznik, the only accused to take the stand — insisted that the sexual episode was consensual and that, in fact, AB was the one who initiated it.
If eyes rolled at Nyznik’s under-oath version of events — with AB the succubus, preying on a trio of men — there was precious little to hang a conviction on. That is the nature of such trials and why it takes a brave complainant to go the prosecution route.
Molloy made no bones about her skepticism regarding Nyznik’s evidence, boldfacing that section in her decision: I Do Not Necessarily Believe Mr. Nyznik.
Indeed, Molloy agreed with most of the Crown’s submissions that the testimony was scripted and missing in details except for those aspects that the prosecution characterized as “rehearsed.”
“However, making a determination that someone has lied under oath is not an easy task. There are certainly aspects of Mr. Nyznik’s testimony that I did not find convincing.” Some of his account — describing how AB had pulled down his zipper and taken his penis into her mouth with no assistance or prior discussion, for example — was “unlikely.” Parts of his evidence “simply did not ring true.”
But Molloy was stuck with what was presented.
“I do not find Mr. Nyznik’s version of the events to be compelling and I am not able to say I necessarily believe him. However, neither am I in a position to say that I reject his evidence as untruthful. I simply do not know whether or not he is telling the truth about the critical issue — the consent of the complainant to the acts he described.”
A jury, possibly, with lesser appreciation of the law, might have come to a more gut-instinct conclusion. But Molloy, in a judge-alone trial, didn’t have the luxury of instinct over evidence. She clearly went as far as she could go, adhering to the constraints of law.
That included, quite notably, an entire section on: Irrelevant Evidence and Things I Have Not Taken Into Account.
This, I believe, was an admonition to the defence team for getting down and dirty in their rape-myth maligning of the complainant’s character: The allegation she’d told Nyznik and Kara, beforehand, that she planned to wear a short skirt to “Rookie Buy Night,” for “easy access” (Molloy was not satisfied the comment had been made and it didn’t matter to whether she consented to sex several days later); the insignificance of what AB was wearing that night (“What a woman wears is no indication of her willingness to have sexual intercourse, nor can it be seen as even the remotest justification for assuming she is consenting to sex”); AB’s willing accompaniment of Kara and Nyznik to a strip club, or whether she “invited herself” to their hotel room afterwards; her initial reluctance to report the alleged assault and her erratic behaviour in the days that followed.
“In particular, a woman who has been the victim of a sexual assault will not necessarily exhibit immediate symptoms of trauma. She might, or might not, be weepy. She might, or might not, be depressed and withdrawn. She might, or might not, be hysterical. Or she might cover up any of those kinds of emotions with an exterior of jocularity . . . .
“There is simply no ‘normal’ or typical.’ I have not taken any of this conduct into account in reaching my decision.”
May not feel that way, in this moment, but that’s a win for victims of sexual assault.
It gives them back their dignity.