Guest blogger Stephanie Stella, compares the similarities between her trial and Mandi Gray’s trial. Warning – may be triggering.
This past February, I took the stand in my trial – or officially, in my rapist’s trial – in Toronto. In the leadup and during my trial, I met and leaned on Mandi Gray for support (and was subsequently accused by the defence of looking for fame, because I had the sheer dumb luck to have my trial line up very closely to hers and the Ghomeshi trial, and noticed it). On March 22, two days before the Ghomeshi verdict came down and one day before this website launched, was my verdict. Mandi accompanied me, both to support me, and to give herself an idea of what to expect for her own verdict, which, unbeknownst to us, was still four months away.
In many ways, our verdicts couldn’t have been more different.
First let me paint the general picture. My case was adjudicated by Justice Leslie Chapin, who oversees the mental health court. As a result, the verdict was read in mental health court, while she simultaneously dealt with several other cases, almost as an afterthought. Mine was attended by several others waiting to hear about their court dates. Complete strangers who had nothing to do with me, listening to my most vulnerable details. That alone felt incredibly exposing. Mandi’s, Linda’s, every other verdict I’ve seen so far, have had their own courtroom, attended only by relevant parties. While reading my verdict, which was read-only (meaning it would not be publicly released to review later), Judge Chapin spoke in the softest, lowest voice imaginable, such that I had to strain to hear, and barely caught most of her words. All of the other rulings I’ve seen, the judge spoke into the microphone in a clear, audible voice. In short, everything that could be done to enhance the humiliation of the setting, was done.
In a lot of ways, our trials were the same.
Mandi and I were both raped in same the frigid winter – myself in late 2014, and Mandi in early 2015. We both reported after three days – relatively quickly for a sexual assault, but still regarded as delayed. Both assailants were casual acquaintances – one was at the beginning of what would have been a romantic venture; the other was at it’s end. We both talked about experiencing what is called dissociation – both of us lost the ability to physically resist, and we both left our bodies during the assault, leading to gaps in our memory. (One of us was then told that we were making a psychological phenomenon up.) Both Mandi and I testified that we stayed in the presence of our respective rapists for a short period of time (as in a matter of hours) following the rape. Both of us were questioned by the defence about it. Both of us answered that our decision to stay had been influenced by the cold weather, the lateness of the night, and the TTC no longer running. Neither of us took a cab home, because the threat of being alone with a strange man feels greater than that of being alone with someone we considered a friend, despite having just been attacked by them. We both expressed confusion over the sudden change in demeanor of someone we thought we knew. We both testified about having trouble reconciling the person we knew, with what they had just done.
Our rapists both took the stand. They both gave vivid, visceral testimony, painting the night as one of romance and lightheartedness, and us – the victims – as the sexual aggressors. They both relied on the fact that our memories had fragmented in order to assert that their story, their “memory” was the correct and most reliable one. (My rapist even went so far as to repeat throughout his testimony “I remember this so, so clearly.”) They both conveniently forgot to include the part where we both curled into the fetal position afterwards and sobbed.
The process by which we were tried, however, was also quite different. My case was tried in criminal court (although the verdict was read while the judge simultaneously dealt with Mental Health court cases, it was still seen as a criminal case). Mandi’s case, given that she had had a short, casual relationship with her rapist, was considered a Domestic Violence case. Domestic Violence court is a specialized court, just like mental health or juvenile court, where special considerations need to be taken into account when judging cases where things may not be as straightforward or cut-and-dry. The players in the court – the judge and the Crown – have in-depth knowledge of the unique circumstances surrounding these cases so as to apply the law with fairness and relevance.
Mandi was afforded these considerations. I (like so many other survivors) was not.
I mentioned that both our rapists testified in their defence. This is uncommon in rape cases, with many defendants preferring to let their lawyers, armed with a dizzying number of commonly-accepted and all-too-effective myths, take the complainant down themselves. When a complainant testifies, they have already made a statement, often a year earlier or more, that they have to match perfectly. The defence will have already memorized it backwards and forwards so that they can execute a brutal, confusing, and thorough cross examination. The defence gets at least a year to prepare their attack. When the defendant testifies, the Crown hears it once and immediately jumps into cross. No time to prepare. It was because of this that I wasn’t surprised that my rapist only received twenty minutes of the simplest, most straightforward cross examination I have ever seen (in comparison, I endured cross for eight hours). I didn’t even know the Crown was supposed to cross examine the accused with any fervor until I saw the cross examination of Mandi’s rapist, Mustafa Ururyar. He spent an entire day on the stand and, exhausted, his story crumbled apart.
It doesn’t matter if he can’t keep his story straight. As an appellant, he is considered innocent until proven guilty. In a case where there is only one witness, the accuser – this means they are considered to be lying until they can prove their truthfulness. In my case, in criminal court, the Crown and defence were actively discussing my nonexistent motive to lie, when the defence put fourth the Russell’s Teapot argument – just because they couldn’t find a motive for me to lie, doesn’t mean there was no motive. This effectively made it impossible for me to be believed, and solidified the notion that I as the accuser was considered guilty of perjury until proven innocent. In Mandi’s case, both sides were considered truthful until one side showed they weren’t.
Because of the very intimate, stigmatized, and traumatic nature of the crime, victims of sex assault very often act differently from victims of other violent assaults. Often, we experience confusion as our brains try to make sense of what happened to us. Often, we act in ways that seem “odd” – if not completely at odds with – when compared with the ways in which victims of other crimes would act. We freeze and don’t fight back. We stay and smile at our attackers. We try to convince ourselves it was just a misunderstanding. And on and on. In DV court, this is understood and explainable. In criminal court, this is treated as suspicious.
Neither Mandi nor I made any attempt to struggle, raise the hue and cry, or claw desperately for the door during our rapes. We were both frozen in shock and in fear of putting ourselves in worse danger by resisting. Neither of us could remember minor details, such as where exactly we were positioned on the bed or which hand was used to force us. We both initially tried to downplay/deny/forget our trauma and appease our respective attackers. The next morning, we both told a friend about what happened over text, and expressed concern that we may have accidentally done something to lead them on. It took three days for everything to sink in and for us to report to police. This is the case in many sex assaults (and it often takes survivors even longer to come to the realization that they’ve been raped). In Mandi’s case, in DV court, all of her evidence is shown to be indicative of a brain experiencing trauma, and bolstered her believability. In criminal court, my exact same reaction was considered indicative of fabrication (or consent!), and made me sound unbelievable.
My exact same reaction – to the same crime – was somehow interpreted to mean the exact opposite thing. One judge had special training and was knowledgeable about the intricacies and nuances that typify this type of crime, and make it different from any other violent crime, and thus much more difficult to examine. The other judge simply said I didn’t look panicked enough to convince her.
This shouldn’t be happening. A government institution that has a high standing and a profound impact on our lives – such as the court of law – should not be able to interpret the same kind of evidence, and come to a completely different conclusion. There needs to be – and, certainly, it is reasonably expected that there would be – some degree of legal consistency. Judges should not be able to come to completely different, and even directly contradicting, conclusions on the basis of the same evidence. One shouldn’t have to rely on luck of the draw in order to have their case judged competently.
A violation of maritime law would never be seen in traffic court, because the laws governing the sea are different from those governing roads. Judging a rape case in criminal court is like treating a case of piracy as one would a carjacking (right down to asking the ship captain if he was driving manual or automatic). It’s simply absurd.