“Surprise sex” or rape? (Part two)

Last week, I wrote about the Matthew McKnight sexual assault trial, leaving the matter of the verdict and sentencing for this week’s column.

After listening to all of the evidence, the closing arguments of the Crown and the defence and the instructions from the judge, the jury took 26 hours to render its verdict: guilty on just five of the thirteen charges.

The impact on the women whose cases had not resulted in a guilty finding, was devastating.

“How could this happen? What is the point? What have I been fighting for?”

“What do you think it was? Was it something about me?”

I have seen this far too often in my work, especially when there are multiple victims and one alleged assailant. When only some of the reports from women result in charges; when only some of those charges are prosecuted and when only a small percentage of those lead to a guilty finding, the women left behind almost always believe they did something wrong.

Perhaps, they think, they were not pretty enough or well enough dressed to be believed. They did not tell their story well enough. They did not resist enough. They should not have had so much to drink/dressed the way they did/gone to that party/gone back to the guy’s apartment. They were not important enough for what happened to them to matter.

The scars you can’t see

At the sentencing hearing, held last month and stretching over seven days, some of the five women presented victim impact statements. They talked about having nightmares, losing jobs, not being able to continue with their education, being unable to trust or enter into intimate relationships.

“The bruises you left on my skin faded, but the nightmares that scar my mind will be forever with me.”

“You scared me into silence.”

Some of them also claimed back their power:

“Now I realize that my voice is what you should have been afraid of all along.”

“I now realize this is not something I did. I am not to blame, I did not ask for this.”

“I just had higher expectations”

The Crown asked for a sentence of 22 ½ years; the defence for five to nine. On July 31^st, Justice Sulyma sentenced McKnight to eight years in prison; noting, among other things, that she thinks his chances of rehabilitation are “excellent.” (His father, an investment advisor, provided a letter to the court in which he stated his hope that his son could join his firm after he is released from prison.)

There was much emotion on both sides of the courtroom when the sentence was announced, with some women completely breaking down. Others stood and linked arms in the packed courtroom. Others who had attended the sentencing announcement stalked out of the courtroom upon hearing it.

It is not yet known whether McKnight or the Crown will appeal either the verdict or the sentence.

One of us

McKnight was white, privileged, well educated, attractive and successful. This was the narrative of the defence throughout the trial and the sentencing hearing. Why should such a man have his bright future destroyed by, as they argued, simply going too far? Should his privilege not be a mitigating factor, the defence posited, and clearly the judge agreed.

But isn’t this getting it backwards?

“[T]he defence’s narrative only reminded us that sex offenders are among us, wolves in sheep’s clothing. They are not slobbering freaks who lie in wait in dark alleyways, craven and desperate because of what they lack; they hide in plain sight. . . . And being a privileged white man with the world in the palm of his hand isn’t a mitigating factor; it should have been an aggravating factor.”

Lots of questions

Here are just a few of the many questions I have been asking myself during and since this trial.

Would McKnight have received such a lenient sentence if he had been a Black or Indigenous man or a man of colour, if he were poor, if he had not had a father in the world of money who could hold out the possibility of a future job?

Why can the defence continue to impugn women who have been sexually assaulted, as if by doing so they release the assailant from responsibility for his actions? McKnight’s lawyers reminded the court that he met his victims in a nightclub and not at a Sunday church picnic (although I am sure there is plenty of sexual assault to be found there, too). The character of the victim has nothing whatsoever to do with the legal culpability of the accused, so it is well past time these comments should even pass the lips of defence lawyers.

Should these cases be tried en masse? On the pro side, this can strengthen the prosecution’s case especially when, as in this story, the facts are so similar. On the con side, when only some of the charges lead to a guilty finding, the women left out can experience a new round of not feeling believed or valued.

How can we uphold the critically important cornerstones of criminal law – the presumption of innocence and the need to prove an accused person’s guilt beyond a reasonable doubt – while also ensuring that the victims’ voices are both heard and understood?

Can we fix the criminal response to sexual violence so that victims feel they can come forward with their stories or do we need to look at a different approach to some kinds of sexual assault cases?

Elaine Craig begins her book, Putting Trials on Trial: Sexual Assault and the Failure of the Legal Profession, with these words:

“Imagine a society – one that purports to be a rule of law society – in which one segment of the population regularly engages in harmful acts of sexual violation against another segment of the community with almost complete legal impunity.

“Canada is such a society.”

I’m not proud of that, and I am sure you are not either. What can we do to change it?