Another Successful Jury Address
First some Background:
This was a Facebook trial. The underage complainant (Suzy) alleged that the accused had forcible intercourse with her within a few feet of the accused’s sleeping girlfriend (Sharon). The accused testified that she consented and that he thought the complainant was close to his age because (amongst other things) of the age she posted on Facebook, the ages of her Facebook friends, and the content she posted on Facebook. A critical piece of evidence was a Facebook message the complainant sent to the accused’s girlfriend the next day saying that she was sorry for what happened. The reality is that victims of abuse do apologize for being abused (and do lots of other things that appear to be inconsistent with what they allege happened) but in this case it was just another piece of the puzzle that did not fit. Names have been changed:
What the Jury Heard:
Members of the Jury – the starting point for all of this is that what Suzy Q. described to you in this Courtroom simply cannot be believed. Your common sense tells you that this could not have happened the way she tells it. Who is able to tell you that she said stop 3 times and remembers that she was scared to wake up Sharon but cannot give you details about what actually happened. She says she has forgotten that. She says she forgets most of being raped because she was ½ asleep and the rest she forgot because it was so long ago.
So you end up with 2 lies 1) She was ½ asleep for the full 10-15 minutes she was being sexually assaulted? Does that work for you? She also tells you that she is so scared that she cannot even ask Sharon (sleeping right next to her) for help. But she is still ½ asleep – does that make sense to you? Too scared to ask for help or ½ asleep – which is it?
And 2) she has forgotten what happened because it was so long ago? Who forgets being raped for 10-15 minutes? Phinster hasn’t forgotten. Sharon hasn’t forgotten that her boyfriend was cheating on her a couple of feet away from her – she even remembers that Suzy couldn’t find her mittens.
Suzy never gave you any detail at all about what took place during this so-called rape in her evidence in Chief. I tried to get some more information from her without success. She was looking to duck the tough questions and the way to do that was to lie to you and say that she forgets what happened.
And this is basic stuff. For example, she could not even tell you if Phinster was holding her down while he was taking her pants off – because the obvious question is – how was he able to get her pants off if she didn’t want them taken off while Sharon is merely feet away? The big and obvious question is how is any of this able to take place – if Ms. Q. didn’t want it to take place – within a few feet of Sharon?
Seriously, she was ½ asleep while she was being raped? Is that even remotely possible?
And the reason you have to ask yourselves these questions is because our juries protect fundamental liberties. Our system of justice guarantees that you or I do not get called a criminal until the Crown has proven beyond a reasonable doubt that we actually did what we are charged with doing. It is our collective freedoms that you are protecting. If all it takes is someone with a story like Suzy Q. has to offer – “I was ½ asleep so I cannot answer your questions about what actually happened” – all of our loved ones are potentially at risk of conviction. Which family member do you want to see in Phinster Bumpkin’s seat here in the Courtroom?
I should start out by thanking you for your time sitting here. All of the rest of us here are at work, but we have dragged you away from what you would otherwise have been doing and without you our process comes to a halt.
You put up with being shuffled in and out of the courtroom while we are figuring out what to do about witnesses and legal issues and I’m sure it is frustrating to wonder when we will get your part of the trial back on the road. However, the right to trial by jury would not exist if citizens did not discharge this responsibility and so in appearing in court you have helped to guarantee this right for all Canadians.
When I say thank you for your patience and attention I mean that very sincerely.
Second, I need to explain a couple of expressions that lawyers use. In court, lawyers refer to each other as my friend so although Wendy Miller and I are colleagues my friend is a courtroom term rather than a term of affection.
Also lawyers are not supposed to express our personal opinion so the proper way to advance an idea or proposition in Court is to say “I submit”. It is gets to be a habit after years of practice so I thought rather than leaving you wondering why I was using those terms, I should give you a brief explanation because it is likely that I will use those terms.
I expect that His Honour will tell you that in a criminal trial you don’t compare stories but rather you start with the defence case and ask – does it raise a doubt?
So let’s start with the defence case. There are 2 issues here to think about 1) consent and 2) age.
I want to talk about consent first – did Suzy want Phinster Bumpkin to do what he did?
Phinster Bumpkin gives you a very detailed description of what took place – He lies down next to her, she strokes his face, they start kissing, it moves to fondling, she takes her pants off, they have intercourse. His account was not challenged in any material way – he didn’t waiver from it on cross-examination. More importantly, some of it is proven true by confirmation from outside. He knew, for example, about Suzy ’s age on her Facebook page for example. That is simply not something that you can make up after the fact right? Suzy herself told you that she lied about her age on Facebook when she set up the account. Doesn’t that make the rest of what he said make sense?
The three of them all say that Sharon woke up while this was going on and figured out what was happening and then asked Suzy to leave. Sharon told you that she figured out from what she heard and saw that this was consensual sex between Phinster and Suzy. More confirmation of what Phinster told you.
Phinster said she called him an asshole and, although I didn’t ask Phinster this, he would probably agree that he was. But doesn’t that support what Sharon says happened? She clearly saw enough of what was going on to come to that conclusion.
Really is there a better lie detector test Sharon’s own behaviour? Sharon has stuck with him. That has to mean that someone who was right there, who saw what she saw and heard what she heard knows that Phinster is not a rapist. Why would she cover up a crime for a guy she has known for a only few months? Why would she stick with a guy who raped her friend and put herself at risk of the same abuse? The answer is simple – Sharon knows the truth of what happened.
Sharon’s version of what took place supports Phinster’s – even the lost mittens.
The Facebook page shows that Phinster is telling the truth and that should raise a doubt about his guilt. I am going to come back to it, but Phinster said when he saw her age on Facebook, he didn’t do the math, but he figured he was around his age. Isn’t that the way someone would treat that information if he wasn’t really interested in her at the time. Ok she’s a couple of years younger than me. But he had to have looked right? He had to have seen that page. If he said he did the math, that would be the lie.
When he explains the law to you, I expect that His Honour will tell you, that reasonable doubt is something that can be based upon evidence or something that can be based upon a lack of evidence. And here you lack any evidence to support Suzy ’s version of what took place.
You are left with the fact there is no logical explanation for how during 10 or 15 minutes of sexual activity, Suzy Q. did not wake up Sharon for help, if she was actually being raped.
She claims to have a specific memory that she was scared to wake Sharon up. So she must have also remembered to say “stop” quietly because she didn’t want to wake Sharon up. She must have been being careful, while she was scared but ½ asleep to say “stop” just loud enough for Phinster to hear.
And then you are left with – how can she remember saying no 3 times and that she is too scared to call Sharon and that she was ½ asleep – but doesn’t remember what else happened? How can she have forgotten the specifics of what actually happened but remember these details.
Don’t forget this is someone who says at the preliminary hearing who is sworn to tell the truth the whole truth and nothing but the truth who says she sent the I’m sorry message to Sharon.
The Facebook message from Suzy to Sharon says – I’ll read it to you from the Exhibit – “Ive made a huge mistake doing that I should have never went to your house. I’m really sorry.” Listening to “Sorry” BuckCherry.
Now in front of you, she claims she forgot sending that message. Does that sound real to you? And then there is the bigger question – why is she saying that she is sorry to Sharon? That message should say – “I’m sorry your boyfriend raped me.” Instead she is apologizing to Sharon.
But then there is the still bigger question – who gets raped and then the next day is sending Facebook messages about songs – how do you put rock and roll together with a rape?
I know, if I say I don’t remember sending that message, I don’t have to answer those questions.
At the preliminary hearing she testifies under oath to tell the truth, the whole truth and nothing but the truth that she never said out loud that she didn’t want the sex to happen. How did she forget about saying no 3 times? It a very peculiar number to have in mind.
So she is under oath at just as she is here and she says she never she didn’t want it to happen – how can you square that with her claim that she said no. 3 times. Just loud enough for Phinster to hear.
Only one of those statements can be true so she either gave false evidence at the preliminary hearing or the evidence that she gave you here was false.
And think about the saying no 3 times – Over the course of 10-15 minutes of sexual assault, she says no only 3 times? There is no struggle to keep her pants on, no covering of her mouth to keep her quiet. No threats “don’t tell anyone” No instructions “don’t make any noise”. She doesn’t say why she stopped saying no.
There could have been an explanation – she thought he might hurt her or he was threatening her with a knife. But there was nothing. She was scared to ask Sharon for help but not scared to tell him stop 3 times. How can that possibly true?
So on the first question – was this consensual sex? Of course it was
Now I expect that His Honour is going to suggest to you that the reasoning chain involves 2 questions 1) was this consensual sex. And then since Phinster has testified that he thought she was old enough has the Crown proven that Phinster did not take all reasonable steps in the circumstances to determine her age.
On this point, there can be no doubt whatsoever that Suzy is a liar. She confirmed that she lied about her age on Facebook. She told you that she lied about her age because she had to. So there is no doubt about it – she is prepared to lie when she needs to.
Although why she didn’t need to put a false age – or any age – on her other Facebook pages we don’t know.
In any case, Phinster puts the normal pieces together – her Facebook friends are his Facebook friends, her age has her a bit younger than him, she had marihuana stuff and swear words on Facebook. In bed, she takes off her own pants, she seems to know what she is doing from the way she is touching him. She says she is “old enough”.
My friend was suggesting that there was not much conversation – but why would there be? He thinks she is interested in him and interested in sex with him. She is prepared to be physically intimate – a guy is not going to ask to see her resume or ask what movies she has seen recently. She strokes his cheek. (and doesn’t that sound real to you?) Anyway she says she is old enough, it fits with the other stuff he knows about her and they make out. And she is a willing participant as confirmed by Sharon.
When you look at what supports Phinster on the issue of consent you get to the same point on age. Did she say “old enough”? Of course she did – you already know that she lies about her age. He did what human beings do – he put 2 and 2 together and confirmed what she told him – old enough.
Once he raises the issue of his belief that she was old enough with a reason for his belief, it is for the Crown to prove that he did not take all reasonable steps in the circumstances.
Those circumstances include the who where what why and when of the thing. Who in this community lies about their age in order to get someone to have sex with them? Is that something Phinster should have expected? Why would someone be lying about their age on Facebook? Maybe no one checks ages that people give on Facebook but what difference does it make? what point is there to lying on Facebook? It is not like you can use it in a bar. The age that she lied about matched the mutual Facebook friends that Phinster saw. She herself told you that lots of her over 100 friends were older than her. As for the where – Who asks for id in bed? When Phinster had put a picture together that fit with what he knew about her age, “old enough” was more than enough.
In my submission, the sexual activity was consensual and Phinster took reasonable steps to check her age.
On the basis of the evidence you heard I submit that the conclusion is simple. It’s the conclusion Sharon reached when she saw all of this go down first-hand from a few feet away – Phinster is an asshole yes. But a rapist? No.