A Long, Hard Road to Justice
Written by Dr. Julie Macfarlane, Distinguished University Professor and Professor of Law, University of Windsor, Ontario, Canada, and sexual assault and abuse survivor. Private Grief to Personal Advocacy: Confronting Sexual Violence is also the title of Dr. Macfarlane’s new book to be published by Between the Lines. To support Julie in her defamation lawsuit and to end NDAs in sexual misconduct cases, contribute to the GoFundMe campaign here (https://www.gofundme.com/EndNDAs).
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Hello readers, it’s been a while!
And not, let me assure you, because of a lack of things to write about or news to report. Rather the opposite has been the case — loads of action, but no time to write.
I want to use this first blog in a long time to update you. There are two stories that are important to tell (and both will be in my forthcoming book for Between the Lines).
· One is the criminal trial in the UK this summer of the minister who sexually abused me as a teenager (here is the extradition story).
· The second is the fight to prevent the University of Windsor from relying on a non-disclosure agreement to cover-up their termination of a predatory sexual harasser and pass him on to other unsuspecting universities (oh, and resulting in a phony “defamation” suit against me personally, which they refused to defend me in).
This blog will tell you what I can about the criminal trial. My next blog will update you on the University story. I shall reveal how we successfully sued the University of Windsor to compel them to do what they should have done voluntarily — defend me as their employee providing a truthful and honest reference to another university about a former colleague who was terminated for sexual and other misconduct. If you do not know the story, you can get quickly up-to-date here.
The criminal trial
As one of two complainants in the trial of an Anglican minister on multiple charges of “indecent assault”, I spent a day in July giving my testimony in Winchester, England. It was a bizarre experience to be cross-examined on something I have lived with for most of my life, and have now spent decades trying to win justice and accountability for myself and all the other girls I am certain this man has abused during a lifetime in the ministry with power and easy access.
The cross-examination experience was even more surreal because I am so familiar with defence tactics to break-down and undermine witness testimony. The big difference was that, this time, I wasn’t writing about this in the third person, describing the traumatic re-victimization that makes it almost impossible for complainants to come forward — I was experiencing itself myself, first-hand.
The cross-examination by the defence lawyer was primitive and designed to intimidate me.
· “You’re lying, aren’t you Professor Macfarlane?” (with one eye on the jury and one on me);
· “You are just doing this so you can write a blog and bolster your reputation, aren’t you Professor Macfarlane?”;
· along with numerous occasions when I was asked exactly the same question four or five times, before the trial judge intervened to end the harassment (questions like, “did he ejaculate into your mouth Professor Macfarlane?”).
It was hard to see this pantomime as a legitimate way to resolve a man’s guilt or innocence. But this pantomime is all we have right now for sexual assault trials.
Which brings me to the next problem. The jury.
In Canada, the defendant would have been able to choose whether to be tried by a judge alone, or a judge and jury. Many sexual assault defendants opt for a judge and jury, aware of the pervasive rape myths that affect many members of the public, and potential jury members.
Rape myths that include:
· The belief that women who dress provocatively and walk alone at night are complicit in their own rape and assault (so-called “female precipitation”)
· The belief that a healthy woman who fights “hard enough” can successfully resist a rapist if she really wants to (of course, some judges seem to believe this also; see the notorious “knees-together” case adjudicated by former justice Robin Camp)
· The belief that women with previous sexual experience (ludicrously, defence counsel suggested that my attempted rape at five years old by an older boy was “sexual experience”) are more likely to have consented to sexual attacks (this is one of the so-called “twin myths” — the other is that sexually active women are less trustworthy than women who are not…)
In the empaneling of “my” jury, which I watched from the public gallery in the old-style courtroom in Winchester Crown Court, no questions were asked of any potential juror about their own experience with or opinions on issues of sexual assault or rape. No one had the opportunity to excuse themselves because of a past experience that might make sitting through my testimony (and that of the other complainant) emotionally painful. No one was asked about whether they were aware of (and possibly influenced by) other related high-profile trials that have taken place. No one was asked about their religious views, or about how those views might affect their judgment of a church minister accused of sex crimes.
In England and Wales, the potential jurors do not even know the charges until after they are sworn in. When the chosen jury members were told of the charges, and the name and title (“Reverend”) of the accused read out, there was a collective gasp.
The jury decision
After ten days of trial, the jury retired to consider their verdict (which could be unanimous, or a majority, i.e. 10 of 12).
Less than three hours later, they returned to tell the judge that they were inextricably polarized and could not reach a decision. The judge asked them to consider spending more time (three hours was shockingly short after such a complex investigation, a prolonged extradition process, and a lengthy trial). They each responded that no, they could not see any way to resolve their deadlock.
We had a hung jury. We can speculate, but we shall never know what went on in that jury room,
Retrial
The Crown prosecutor immediately indicated that she would seek a retrial. As she said, there was nothing wrong with the evidence.
I shall return to the UK at the beginning of January to do it all again. The trial will essentially be repeated — same complainants, same defendant, same evidence, same lawyers — but a different judge and a new jury.
Until then, I can say no more.
But this is a long, hard road to justice.
