Authors: Bill Rowe
Dr. Johnnie von Himmel instanced several cases “out of a plethora of
similar travesties” where accused persons convicted of sexually
assaulting children were later shown, as a result of new evidence or the
recanting of a complainant’s allegations, to be entirely innocent after years in
prison suffering brutal assaults, even death, at the hands of criminal
thugs.
On cross-examination, prosecutor Barrett asked the celebrity memory expert if
modern witch-hunters tracked down their evil women, not by finding the devil’s
marks on women’s bodies like in the dark ages, but by discovering false memory
in women’s minds. Dr. Johnnie replied that he’d often heard similar belittling
arguments from his good feminist friends, and he’d been forced to point out to
them that they couldn’t have it both ways on this memory business. If, as they
claimed, a woman could bring out as an adult a
suppressed
memory of
sexual abuse as a girl, then surely a woman could also
create
as an adult
a false memory of sexual abuse as a girl. In the interests of fairness, one had
to admit that the mind worked both ways. Prosecutor Barrett’s description of
this as “so much piffle and wind” was objected to by Murray Dylan.
The last witness for the defence was the accused himself. The prospect of being
father to two lively intelligent girls, he testified, had been very much a bonus
in his marriage to their mother, inasmuch as he had discovered from a test in
anticipation of marriage to a woman years before that he was sterile and unable
to father children. This revelation had caused the termination of that
engagement and sent him overseas in heartbreak. To have found another woman in
his new home whom he loved and who already had a wonderful family that he could
become part of was nothing less than a heaven-sent miracle.
Dylan asked him if, following the test establishing his infertility, he had
worn, or indeed would have to wear, a condom in any sexual activity to prevent
pregnancy. He replied that a condom for that purpose was entirely unnecessary.
Indeed, when he heard the complainant allege that he had worn a condom, that
statement to him was proof positive that the sexual activity she had accused him
of could not have taken place.
He got along swimmingly with both girls at the start. Soon, however, he became
concerned about Rosie’s mental well-being. Disturbing features of her behaviour
struck him as aberrant in a prepubescent girl. A simple hug of greeting between
them, if they were unobserved, was becoming an opportunity for her to press her
lower body against him in a knowing way. One time she sat upon his thigh with a
leg on either side and pretended she was riding a horse, but moved herself
against him with such obviously
sexual intent that he became
embarrassed. Naturally he discouraged that kind of contact without making a big
fuss, not wishing to cause further damage to her emotionally. But on one
occasion he was so frankly shocked by her behaviour that he let his professional
guard down. She liked him to read to her in bed as her natural father had done,
and at first he was happy to oblige. One night as he was sitting by the side of
her bed reading, she took his hand, brought it inside the covers, and actually
placed it between her legs. He was so flabbergasted he blurted out that her
mother would kill her if she knew she’d done that. Then, regaining his
professional poise, he told her he’d meant to say that what she had done was
wrong and if she did anything like that again, her mother would have to know so
that they could bring the girl to a psychologist. She replied that she couldn’t
help it because she loved him, and pleaded with him not to tell her mother. He
assured her that a crush on someone in his situation was normal, but that it was
not morally or medically right to do what she had just done.
It didn’t occur to him till a while afterwards that for her to have done such a
thing so forthrightly, someone may have done it to her before, perhaps someone
in or close to the family. Wondering what to do to help her, he kept himself out
of all opportunities for a repetition, in spite of her aggressive efforts to get
close to him physically, and after a period she appeared to develop a resentment
of him and went into the decline others had mentioned. Then the principal of the
school called his wife and him to go in for a serious discussion about the
complainant’s condition.
Immediately, he told his wife of his concerns and they shared them with the
principal and the complainant’s teacher on a confidential basis. It turned out
his misgivings accorded somewhat with theirs, but there was no evidence against
anyone, nothing but speculative questions, which he himself considered too
dangerous to indulge in. Had some teacher or some adult friend molested her? Had
there been abuse going on before his arrival in the household? The aggressive
way she had advanced on him as a father figure made him suspect the worst
concerning her own father. But he had absolutely no proof of that. He suggested
to her principal then and there that they go to the police. But the consensus
they all ultimately arrived at, led by the principal, was to watch her closely
for a short time longer rather than risk setting off a baseless witch
hunt.
To everyone’s delight she soon bounced back, but her attitude toward him
remained the same. Indeed, she seemed to resent him more as time went on, and
she would accept no generosity whatsoever at his hands. She
turned down flat his offer to send her to a private school in Ontario like her
sister, refused to go on trips with him and her mother and sister, staying in
their absence at her friend’s house instead, said no to his offer to pay her way
to world-class universities when she graduated from school, even as her sister’s
name was put in the queue for Harvard. He did notice that, regarding the one
thing she most enjoyed—tennis—well, she didn’t hesitate to accept his offer to
send her to a tennis camp on the mainland.
Rosie clung to, he believed, a morbid memory of her natural father and his
frankly obscene poetry and whatever kind of a relationship he had imposed upon
her. Her attitude to himself as stepfather appeared to have gone from unhealthy
sexual love to unhealthy loathing, and God alone knew what fantasies had
occurred in her mind between the two extremes. He was sorry now he hadn’t done
more about her mental problem at the time, but she was so positively thriving
academically and athletically that both he and her mother thought she was cured.
Little did they realize what mad imaginings were festering inside that
traumatized young brain.
Celebrated defence lawyer Dylan asked the accused if he had ever voluntarily
touched the complainant sexually. He replied indignantly that, except for the
time the girl herself had initiated it in her own bed, which had shocked him so
profoundly, he had never done and would never dream of doing such a morally
odious deed.
On cross-examination, prosecutor Lucy Barrett asked the accused if being four
years younger than his wife had given him pause before he’d married her. None
whatsoever, he replied.
“Was that because your attention was more focused on her young
daughters?”
“I find your insinuation offensive, madam, and I doubt that you would have
asked the question if it were I who was four years older than my wife. Attitudes
are changing in more broad-minded persons, however, as may be seen from the fact
that John Lennon is eight years younger than Yoko Ono.”
Prosecutor Lucy Barrett then asked the accused whether, at the time of his
hurried departure from England some years ago, he had been estranged from his
family there, even to the point of threats of physical violence from his own
brothers-in-law, the husbands of his sisters and the fathers of his nieces. The
defence lawyer objected to this as irrelevant and prejudicial, “as the
prosecutor is well aware.” The prosecutor argued she had grounds to believe that
the reason the defendant had just given for having left England was not the real
reason, and since the defendant himself had stated it
as true,
she had a right to cross-examine him on that as on all the rest of his smarmy,
self-serving testimony. The judge ruled that she could indeed cross-examine him
on the ruptured relationship he had given as a reason and could even present
rebuttal evidence if she had any, but disallowed the line of questions the
prosecutor had embarked upon regarding his family and cautioned her “not to
persist in trying to trespass on forbidden territory through the back
door.”
ROSIE CAME IN TOMY
bedroom just after I’d finished
watching the resumé of the lawyers’ arguments that day on the news. I called
myself a useless turkey, wimping out on her like this, letting her down at her
neediest moment. She replied that she missed me sitting there next to her, but
it made no difference to the trial. The die was cast there. The outcome was out
of our hands. I should stop berating myself. She picked up the newspaper from my
bed and leafed through it, occasionally shaking her head as she read something
else unsettling from Rothesay. “My God,” she said, “the lies.”
“You can see where someone close to the victim could actually kill a bastard
like that,” I said, and Rosie breathed in and out heavily, nodding her head the
while.
THE NEXT MORNING THE
newspaper contained a sentence that made
me lurch out of my sickbed. I was reading the summary of yesterday’s addresses
by the lawyers to the jury, at the end of which appeared the reporter’s
statement, “During the past two days there has been only one empty seat in the
entire courtroom, that of the complainant’s boyfriend who is bedded by the flu,
and its emptiness beside the complainant in the packed gallery has made it very
conspicuous.”
Feet on the floor, elbows on my knees, head in my hands, I sat on the side of
my bed in the sudden realization the jury would not know I had the flu. They
were sequestered every night in a hotel and were not allowed to read newspapers
or listen to the news and knew only what they heard from testimony of witnesses
and arguments of lawyers. They must be thinking I had abandoned Rosie. The judge
had started her instructions to the jury this morning, and she’d probably be
finishing this afternoon, and here it was nearly one o’clock. I had to get
there. The jury had to see me next to Rosie again. They had to know I believed
in her.
I stood and steadied myself with one hand on the bedside table, assaulted by
the same dizziness and nausea that arose whenever I got up to
go
to the bathroom. I reached for the glass of water and the anti-nausea pill Mom
had left, swallowed, and sat back on the bed for a few minutes. Then I had a
shower, dressed, poured a glass of juice, managed a sip, and sat down with my
cheek heavily on my palm to call a taxi.
Judge Ledrew was holding forth to the jury. She stopped speaking at the sound
of the door opening and glared over in irritation. Seeing me entering, she
smiled and nodded at me. Lucy Barrett’s eyes were on me, glowing happily. Murray
Dylan was scowling. The room stirred and murmured. I walked towards Rosie. Her
face was alight with surprise and gladness. Behind her the spectators beamed.
Where the hell was my seat next to Rosie? There was someone in it. I stopped,
perplexed. Rosie was speaking to the man next to her, who then turned a grinning
face of acknowledgement to me and rose immediately. It was Brent. He walked past
me with a slap of bonhomie to my arm and out of the courtroom. I sat down.
Brent’s body heat in the chair made a spasm of nausea go through me. Rosie took
my hand, whispering, “You are very bad, you know that? You shouldn’t be out of
bed.” She was right. I fervently wished I were back in my bed, until I looked at
the jury. They were watching me closely, more than a few smiling.
I struggled to stay conscious while the judge talked the rest of the afternoon
away: Dangerous to convict on the uncorroborated testimony of a complainant,
blah, blah… but often only the complainant’s evidence was available upon which
to base a conviction, blah, blah… and if the jury conscientiously believed the
complainant that the accused perpetrated upon her the acts she described, then
no reasonable doubt existed and a conviction should be brought in, blah, blah…
but if the jury didn’t believe her, or genuinely and conscientiously could not
decide whom to believe, then reasonable doubt existed and…
At four-thirty that afternoon the jury retired to consider their verdict, and I
went home to bed.
NEXT MORNING I WAS
back with Rosie. Hanging around
the courthouse during the interminable wait each day, expecting the verdict any
minute, our textbooks, and the notes taken by friends covering classes we’d
missed, open before us, we tried to study. Lucy Barrett left word with court
officials on the second day to notify her the moment a verdict seemed imminent
and went to her office to deal with pressing matters, but she kept coming back
to the courthouse. “Two minutes at my desk,” she said, “and I’m antsy
again.”
“The jury reached their verdict in the first ten minutes,” I
said on day three, “but with all that fancy grub in the Newfoundland Hotel
dining room, they decided to stay out for another week.” Lucy gave me a stern
look and I regretted my flippancy, but then Rosie looked at her and me and
laughed, and it became our stock joke as the hours crawled by: “Wonder what the
jury is tucking into now.”
On the morning of day four, the jury sent a note to the judge. They were having
serious difficulty reaching a unanimous verdict. Judge Ledrew assembled them in
the courtroom, commiserated with them, and reminded them of the emotional
upheaval and expense of perpetrating another trial. “You have to try again,”
she beseeched. “Go back and try harder.”