In Toronto this week, three Toronto police officers — Leslie Nyznik, Sameer Kara and Joshua Cabero — were acquitted of sexually assaulting a female parking enforcement officer in a downtown hotel after a night of bar-hopping.
The complainant in the case said she was too impaired to consent to sex.
Only one of the police officers, Nyznik, testified, and he said that the woman consented, and even instigated, sex with the three.
Echoes of Snelgrove, indeed.
Ontario Supreme Court of Justice Judge Anne Molloy heard the case, and found the three not guilty based on inconsistencies in the woman’s testimony about the alleged assault, and the lack of corroborating evidence.
It is something that is regular and unfortunate in sexual assault cases, which often occur behind closed doors, with opposing testimony and limited physical evidence — especially in cases that, for a variety of reasons, aren’t immediately reported.
In this case, there was DNA evidence showing that two of the officers had sex with the complainant, video evidence of the woman entering the hotel, and evidence from a toxicologist.
In the end, though, the judge came to a familiar conclusion, one that’s hardly likely to sit comfortably with anyone who has a friend or family member who has gone through the gruelling process of being the complainant in a sexual assault trial.
“Based on the complainant’s evidence, I cannot be sure what happened in that hotel room,” the judge wrote. “It is not safe to convict.”
Even more interesting, though, is something else the judge wrote.
Judge Molloy went on in her verdict to address the way the legal system deals with sexual assault cases, and it’s sobering reading.
“It is sometimes said that the application of these principles is unfair to complainants in sexual assault cases,” Molloy wrote, “that judges are improperly dubious of the testimony of complainants, and that the system is tilted in favour of the accused.”
The problem, though, is that criminal law is intent on guilt or innocence on the part of the accused, and not on the alleged victim.
“The focus of a criminal trial is not the vindication of the complainant,” Molloy wrote. “The focus must always be on whether or not the alleged offence has been proven beyond a reasonable doubt.” The efforts to find that proof, “are necessary protections to avoid wrongful convictions.”
Molloy also took a recent popular approach to sex assault cases head-on: “Although the slogan ‘Believe the victim’ has become popularized of late, it has no place in a criminal trial. To approach a trial with the assumption that the complainant is telling the truth is the equivalent of imposing a presumption of guilt on the person accused of sexual assault and then placing a burden on him to prove his innocence. … That is antithetical to the fundamental principles of justice enshrined in our constitution and the values accompanying our free and democratic society.”
For victims who were assaulted, but whose proof does not go legally far enough, it means re-victimization and the very real personal damage that comes with the justice system essentially saying their assault did not happen.
It’s trite to say that it is the accused who is on trial, not the alleged victim; anyone who comes forward alleging a sexual assault can end up quite clearly being tried in the court of public opinion, even if their identity is protected.
It’s a process that may well increase the number of women who are sexually assaulted but choose not to come forward and press charges.
But how do you address the concern so clearly spelled out by Judge Molloy?
How can the system be improved, without changing the balance and assuming someone is guilty of a crime if they cannot prove their innocence?
If nothing else, it proves that justice and fairness are not the same thing.
Damage is being done.
And that clearly is not justice for all.
Russell Wangersky’s column appears in 35 SaltWire newspapers and websites in Atlantic Canada. He can be reached at [email protected] — Twitter: @wangersky.
