Justice

Part 7: Closing Arguments

Late last year, in a Toronto courtroom, a young woman faced off against the university student whom she accused of raping her in a school parking lot. The media ignored the story. Our reporter was there for every moment

This is the seventh instalment in a series about a criminal rape trial that took place in Toronto late last year. The trial lasted eight days; the judge announced his verdict earlier this month.

At the time of the actions that led to the criminal charges, the female accuser was seventeen years old, entering her final year of study at a Toronto high school. The male defendant was a year older, a star athlete on his way to winning a scholarship to a US college. She had substantial credibility problems on the witness stand. His testimony seemed far more convincing—at least at first. But this was more than just a “she said, he said”—or, as it turned out, “she lied, he lied”—case. There was an element of physical evidence against him: bruises on her arms and legs. The judge had to decide if the totality of the prosecutors’ case against the defendant was enough to send him to jail, brand him a sexual offender, and destroy his promising future.

Despite its sensational nature, this was a case that never made headlines. What I observed during my reporting was the farthest thing from a Jian Ghomeshi courthouse scene, with mobs of press and police. I was the sole reporter at the superior court trial and, on most days, the only observer not directly related to the case. The mother and grandmother of the accused, whom I will call Matthew in the reports that follow, attended throughout the trial. The complainant, who will be known as Ava, was supported by a representative from victim services and the detective in charge of her case.

Ava’s family and Matthew’s father were not permitted in the courtroom as they were all considered to be potential witnesses. They spent much of their time in the courthouse hallways, pacing or sitting nervously. Like everyone else, they knew that the events unfolding on the other side of the courtroom door would deeply affect the two young people involved for their entire lives.

—Ann Brocklehurst

On the last day of trial, lawyers for the prosecution and defence present final versions of the two competing narratives that have emerged over the past eight days in court. Both arguments are in sync with the current zeitgeist.

For the prosecution, this is a case that started out strong. Theirs was a powerful story, straight out of a date rape awareness pamphlet. The villain was a star athlete who allegedly believed he had a right to sex with his ex-girlfriend because he answered her call for a lift home. According to her, he said things like: “I know you want to. You miss me”; “If I did you a favour, I should get a favour in return”; and, “What am I? Your fucking taxi driver? ”

The complainant too was an archetype. Ava’s experience on the witness stand, where she was cornered in an exhaustive cross-examination, was perfect evidentiary fuel for the #beenrapednotreported Twitter fire that raged during the Jian Ghomeshi scandal. (Recall, the question of why none of the women whom the radio star had allegedly assaulted went to the police was raised again and again.)

Ava did everything rape victims are supposed to do. She phoned the police hours after the alleged assault, had a rape kit done, and her injuries photographed. And yet, despite having played by the rules, there she was on the witness stand: distraught, crying, weeping, angry, verging on hysteria. Who in their right mind would subject themselves to this, you can’t help but ask.

There is one problem, however, which is that Ava does not always tell the truth.

“Less than forthright” is how the assistant Crown attorney Sharna Reid describes her performance. In the words of Carolyne Kerr, one of two lawyers defending the accused, there is “a pattern of this complainant lying under oath about significant serious issues.”

“I’m troubled,” says Justice Gary Trotter as he prepares to hear the attorneys’ closing arguments, stressing that he hasn’t yet come to any conclusions.

Reid maintains that Ava’s credibility issues are not “fatal” for the prosecution’s case, because there is no reason for her to lie about the alleged assault itself.

Why would she do that, asks Reid. What would be Ava’s motive to lie?

Given the state of our cultural climate, the defence can’t just respond that it’s because Matthew dumped Ava, and she was angry enough to want revenge. Ghomeshi has made the jilted-ex argument toxic for the foreseeable future.

Thus, the defence finds a workaround that does not involve accusing a seventeen-year-old girl (Ava’s age at the time of the alleged assault) of lying about rape, a strategy that would be especially dangerous given the bruises found on her body.

Kerr’s closing argument for Matthew’s defence describes a young man, eighteen at the time, who had consensual sex one summer night, and the next day found the police at his door and his life falling apart. He was wrongly accused by a kid who was too scared to tell her mother that she had agreed to unprotected sex with a guy whom she knew her mother disliked. It was a bad decision made by a minor on the spur of the moment, then spun out of control, Kerr suggests.

This “blame mom” narrative makes sense under the circumstances: as a witness, Ava’s mother Mary was, in the words of the prosecution, “not perfection.”

“She struck me as angry, period,” says the judge.

And then there were Mary’s text messages to Matthew, which she began to send as he was driving home after the alleged assault: “How can you have sex with a girl too intoxicated to make legal consent? Are u crazy?”; “The wrong girl at the wrong place. We’ll put you in jail”; “Guys like you end up with HIV. God is watching and karma will find you”; and more.

Kerr reminds the court that while Mary had described herself as tolerant about her daughter’s relationships, there was one exception. “When it comes to casual unprotected sex, I am extremely vigilant,” she’d said on the witness stand. “I can be a nightmare.”

Those were the exact words she used, says Kerr. Think about that. “What her mother would have done to that [seventeen]-year-old girl would have been a nightmare. . . . That is why this young girl lied to her mother. And what we have from there is a web of lies, some of which can be very easily pierced.”

*

Sexual assault cases are generally considered difficult to prosecute because of their she said, he said nature. In this trial, it was also she lied, he lied. Both Matthew and Ava were revealed to have lied to police. Yet unlike the complainant, the accused was never shown to have lied under oath in the courtroom. And while he admitted lying to police—something he said he did out of panic—she never acknowledged her mistruths, even when confronted with physical evidence, such as phone bills that showed she hadn’t made the calls she had claimed to.

Under oath, Ava also said she had never set up a false Facebook account to lure Matthew to a fictitious girl’s hot tub as a test of character. Yet two other witnesses—Ava’s former best friend and her own mother—testified that she had indeed done just that. Ava and her friend had even hidden in the bushes to spy on Matthew when he arrived for his fake blind date.

“It’s not something one would forget,” says the judge.

Given Ava’s shaky credibility, the biggest thing that the Crown has on its side are the bruises to her arms and legs, which she says were inflicted when Matthew pinned her down in the passenger seat with his hands on her arms and his knees on her thighs.

“Thats a very, very troubling aspect of this case,” says Trotter, who had emphasized earlier that any comments he made during the summations were impressions, not conclusions. “The injuries to her legs cause me great concern.”

Reid says that these injuries and Mary’s testimony about her daughter’s hysteria corroborate Ava’s account of the night. “You can clearly arrive at the conclusion that what [Ava] has described is what took place,” says the prosecutor.

“If you do accept the evidence of the complainant, the injuries sustained, her demeanour at the time, it must lead you to a situation where you are convinced beyond a reasonable doubt [of Matthew’s guilt].”

Reid argues that Matthew invented his account of consensual sex in the driver’s seat to explain away the injuries to Ava’s body. “I would submit that [Matthew’s] story is impossible. What he described as causing those injuries is impossible,” she tells the court.

Matthew has testified that the bruises on Ava’s arms were probably the result of his lifting her into the driver’s seat and positioning her atop him. The marks on her legs would have been due to his holding her thighs to keep her in place.

Reid finds this explanation unbelievable. Why would two people choose to have sex in the “most confined area of the vehicle,” she asks. “When you think about common sense, the back bench is most sensible.”

In my days attending this trial, I have often felt like a voyeur or a pornographer. Today, I am channeling Elle Woods, the heroine of Legally Blonde. This is especially true when the judge enters the fray to note that a remark Ava made early in the trial made sense to him. “Why would we do it in the car when we could do it at home? ” he recalls Ava saying, as she denied ever having car sex.

In my imagination, Elle is explaining:

Your honour, according to a lastminute.com survey, 27 percent of French men and women, 18 percent of Germans, and 11 percent of Brits claim to be members of the Mile High Club, which would not exist if all people wanted to do was have sex in bed at home. So it’s really not that improbable that two teenagers would have sex in a car. As evidence, may I also present this instructional YouTube video on sex in cars, with a gazillion views and still counting. Or how about this one, “Hot High Schoolers’ Car Sexcapades”?

Meanwhile, back in the actual courtroom, assistant Crown attorney Reid has moved on to arguing that even if sex in the driver’s seat was possible, it would be illogical given that Matthew and Ava’s past practice was sex on the back seat—provided, that is, you concede that any consensual acts ever took place in the car, something which Ava has consistently denied.

This is the cold, hard reality of a sexual assault trial. A police video in which the alleged victim is asked multiple times how long the act of intercourse lasted; a grandfatherly defence lawyer grilling her about how the accused came to have a pair of her panties; a soft-spoken, straight-laced prosecutor asking the defendant why he lied to his father and the police about where he’d ejaculated.

Above all else, I am left with the overwhelming impression that there has to be a better way, a point that defence lawyer Kerr—who once prosecuted rape cases as a Crown attorney—obliquely addresses in her summation, when she begins by stressing that this trial has been about two people who were “kids” at the time.

“The most important piece of evidence is the bruises,” she says. “But before we conclude those bruises are going to result in the conviction of [Matthew], they need to be looked at in a more analytical way.”

Kerr notes that what happened in the car that August night was inconsistent with the personal dynamic that had existed between Matthew and Ava back in June. This, she says, was “let’s go for it, whatever, one last hurrah.”

She stresses that, unlike the defendant, Ava can’t admit to past failures to tell the truth. In court, the complainant “took evasive steps or gave implausible explanations. The way she deals with things when confronted with her lies is deflection.”

Kerr emphasizes that the context of both parties’ lies is key to assessing their credibility. It’s hardly surprising, she argues, that Matthew lied to Ava’s mother as she began her text bombardment, accusing him of rape, vowing to send him to jail. “What do people do when they’re scared? ” Kerr asks. “They lie. What does an eighteen-year-old boy do when confronted with breaking the law? He lies. Again, it’s irrational.”

“I think I pretty much accept that this would have been terrifying,” says Trotter, referring to the accusatory texts sent by Mary. He appears less understanding, however, about why Matthew deleted all of his and Ava’s BBM activity and Facebook messages after the police left his house.

“We will never know (why), and it looks terrible—especially the proximity in time,” says the judge. “When people do lie, it’s invariably, in this building, to place themselves in a better light.”

“Yes, it looks awful,” says Kerr, though she resists the broader point. “I think it cuts both ways. I don’t think you can jump to the conclusion that that piece of evidence undermines [Matthew’s] credibility.” The communications that Matthew erased, she suggests, might have actually backed up his story.

If Matthew’s lies can be explained by fear, says Kerr, Ava’s lies arise out of her need to hide her true feelings for him. “That motive runs through all her evidence . . . if she told the truth, her version of what happened on August 1st and 2nd is much less likely to have occurred. That’s why she can’t admit it.”

And yet, points out the judge, admitting to wanting a relationship with Matthew wouldn’t have hurt Ava’s credibility when it came to the alleged assault.

Kerr nods, and agrees that there was no legal reason for Ava not to have said: “I thought he was my boyfriend. I was really into him. He was a total miscreant.” That wouldn’t, on its own, have called into question her account of the incident.

“She lies because if she had told court the true nature of the relationship, if she had told the truth, it makes her story (of that night) less credible and less credible to one particular person, who is her mother,” Kerr says.

The defence attorney notes that Matthew’s phone records confirm his version of events. She also points out that he didn’t bring or wear a condom, as he had always done in the past, and concludes that he wasn’t intending to hook up that night.

“Her testimony as to what happened in car cannot be believed,” says Kerr. “And if her story can’t be believed, you must have a doubt as to how the bruises got on her body.”

*

Here at the end, we arrive back at the question Kerr posed as she began her summation. Will Ava’s bruises result in Matthew’s conviction, given everything else we know?

Trotter says that because of the upcoming holidays—remember, this trial happened late last year—he will not be able to deliver his decision until early 2015. Matthew’s mother, who has remained utterly composed up until now, breaks down in tears at this news. After almost two and a half years in the justice system, they will have to wait another two and a half weeks.

Tomorrow: my final report in this series, The Verdict.

Ann Brocklehurst (@AnnB03) is the author of Dark Ambition: The Shocking Crime of Dellen Millard and Mark Smich.

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