ACLU hits new low by giving Christine Blasey Ford ‘courage’ award
Dr. Christine Blasey-Ford was awarded the Roger Baldwin Courage Award by the ACLU on Sunday. Named for ACLU founder Roger Baldwin, the Roger Baldwin Courage Award honours those who embody his view that “so long as we have enough people in this country willing to fight for their rights, we’ll be called a democracy.” We’re not altogether sure what rights Dr. Christine Blasey Ford was fighting for when she testified about an alleged assault before the U.S. Senate, but she just got an award for doing so.
Blasey Ford, a political pawn used in the efforts to railroad Supreme Court Justice Brett Kavanaugh with false accusations, is not a courageous person but she certainly did play one on TV. Honouring a person who made a baseless accusation seems a stretch for an organization that prides itself on advocating for civil liberties, truth, and justice.
As 2019 winds down, a year after the Trudeau government introduced significant changes to our legal system, the courts have wound up in a state of chaos.
New rules of evidence in sexual assault trials came into effect a year ago which were intended to strengthen the protections and privacy rights of complainants. Despite the dire warnings of criminal defence lawyers, Bill C-51 was implemented and the constitutional challenges began.
The primary issue with the new rules of evidence is what’s referred to as reverse disclosure, and the new requirement that all records (like text messages or emails) in the possession of the accused must be revealed to a complainant prior to trial. The purpose was to avoid ambush during cross-examination and to give the complainant the ability, with legal counsel, to either block the evidence from the trial or limit the way in which the records could be used.
Of course, the effect of these hearings, if held in advance, would warn the complainant of the defence material and strategy prior to testimony. It would allow the accuser the time and ability to tailor the testimony to avoid impeachment.
In a National Post article, Brian Platt provides a thorough summary of the fallout across the Canadian courts as judges come to different conclusions on whether or not the new rules violate the accused’s right to a fair trial. Platt discusses some of the recent decisions pointing out that “some judges have upheld the legislation, others have declared it unconstitutional, still others have found serious problems but suggested on-the-fly solutions to save it.”
In an article on his website, criminal defence lawyer Joseph Neuberger notes “the split decisions on how to apply the new legislation has created an uncertainty and the reality that two different people charged with the same crime will find themselves facing different rules at trial. The blame for this chaos falls squarely at the feet of our lawmakers who have rushed to please partisan interest groups at the expense of due process.”
In intervener submissions to the Supreme Court in March, 2019, defence lawyer Marie Henein stated “while [an advance hearing] allows the trial judge to put defence counsel on a leash, there is a difference between a leash and a choke chain. There is a difference between corralling someone and hogtying them.”
And the new rules go well beyond sensitive issues involving evidence of a sexual nature. Bill C-51 added section 278.92 which declares all records in the possession of an accused to be presumed inadmissible unless approved in advance hearings. That captures all communications between a complainant and accused even in the absence of sexual content.
The definition of “record” was originally crafted to address requests for third party documents that would have an expectation of privacy, such as medical or counselling records. Some defence lawyers have successfully argued that evidence in their possession does not qualify as a “record” because the complainant’s privacy concerns are not engaged.
In a recent Ontario decision, R v W.M., Justice Davies found that once a complainant makes a serious criminal accusation the expectation of privacy changes. “Regardless of how their relationship is characterized at the time the messages were sent, it is important to consider the nature of their relationship now.”
Justice Davies went on to consider the other consequences of determining that all communications trigger privacy rights by noting those rights would then extend to the accused. Davies notes that complainants often provide electronic communications to the police in support of an accusation and “if the accused retains or might retain a reasonable expectation of privacy over messages he sent to the complainant, the police may well be required to get a warrant to take copies of them from the complainant.”
This reciprocal application of the law, that would protect both complainants and the accused equally, connects to recent Supreme Court decisions which could start complicating sexual assault trials for Crown prosecutors.
The Supreme Court of Canada has declared that rules of evidence in sexual assault trials apply equally to both the defence and prosecutors regardless of who introduces the evidence. Both sides must comply with the legislation. These evidentiary rules are set out in sections 276 and 278 of the Criminal Code.
Writing for the majority, in R v Goldfinch, Justice Andromache Karakatsanis stated that “Crown-led evidence of prior sexual activity must be governed by the principles set out in s. 276(1) and Seaboyer.” The Seaboyer decision in 1991 had thrown out the previous “rape-shield” provisions as unconstitutional and laid guidelines for determining whether or not evidence had sufficient probative value that outweighed the risk of prejudice.
What this means is that prosecutors must also now obtain prior judicial guidance on what evidence they can use in their case against the accused. They can no longer freely lead evidence from a complainant that references other sexual activity just because it favours the complainant. To put it simply, what’s good for the goose is good for the gander.
This is an important issue with the way sexual assault trials are currently conducted. Too often a complainant will give testimony about prior sexual acts or relationships and the defence is not permitted to properly cross-examine on that evidence.
The primary, forbidden lines of reasoning in legal arguments are referred to as the “twin myths”: that a complainant is more likely to have consented or less worthy of belief because of prior sexual activity. When looked at from reverse, it would be equally wrong to argue that prior lack of sexual activity would make the complainant less likely to consent or more worthy of belief.
In the past, complainants have been allowed to testify that they were a virgin prior to an alleged incident while the accused is not permitted to adduce evidence regarding absence of virginity. This had been justified in appellate courts by the claim that prosecutors were using the evidence of virginity as a “physical state” not as reputation evidence. Of course a jury would likely take this evidence to mean the complainant was less likely to consent but the Supreme Court has not made any rulings on this issue.
Indeed, in a July 31, 2019 Supreme Court decision, R v R.V., the majority decision declined to consider “whether sexual inactivity is captured” by the legislation. Despite not determining the issue, Justice Karakatsanis, who delivered both majority decisions in Goldfinch and R.V., agreed with Justice Paciocco that “it would be incongruous to hold that the statement ‘I am a virgin’ does not engage s. 276 while an answer to the contrary would clearly be a reference to sexual activity.”
Having decided the case on other issues, Justice Karakatsanis stated they will “leave this issue for another day.”
That day may have arrived.
In a December 19, 2019 verdict from the BC Court of Appeal, the majority overturned a conviction in the case of R v Langan on the grounds that Crown led evidence that should have been subjected to the new rules enacted by Bill C-51.
Justice Stromberg‑Stein wrote for the majority that “whether sexual history evidence is sought to be admitted by an accused person or by the Crown, the same principles apply.” The prosecutor had entered text messages into evidence in which the complainant told her ex-partner in advance that she would not be having sex with him that weekend.
This evidence appears to have been used to bolster the credibility of the complainant, implying that a prior sexual refusal made her less likely to consent after he arrived for the visit.
It is well established that complainants cannot give advance consent, retaining the right to withdraw consent at any time. Additionally, complainants are not required to fight back or verbally resist sexual activity to prove a lack of consent. The onus is on the accused to acquire positive communications of consent whether through words or actions.
As with the problem of the virginity question, if advance verbal rejection of sexual activity is taken to mean the complainant was less likely to have consented then the reverse logic would imply advance verbal consent makes the person more likely to have consented or less worthy of belief.
The public is regularly inundated with stories and claims in the media that the justice system is failing complainants. Every acquittal is deemed a failure and every conviction is celebrated as a triumph. In response to public outrage, the new rules governing sexual assault evidence were implemented by Bill C-51 to improve conviction rates and make it easier for complainants to come forward with their allegations.
Meanwhile, the public is left with a void of information as to what kind of evidence is really being blocked in court as a result. The Goldfinch case was sent back to trial, the acquittal overturned, simply because Mr. Goldfinch was permitted to tell the jury that he and the complainant had been “friends with benefits” to give “context” to their relationship.
The conviction in the R.V. case was restored after the complainant was allowed to testify that she remained a virgin, despite being pregnant, and the accused was not permitted to fully cross-examine her on whether or not she’d actually had intercourse with someone else that fateful summer.
In the new Langan case, which will probably go to Supreme Court because one appellate judge dissented, the same text messages that were used by the prosecutor to gain a conviction would have been presumed inadmissible if introduced by the accused without a proper hearing.
While we wait for a final decision on whether or not text messages count as a record with an expectation of privacy, or whether or not evidence of sexual inactivity requires the same evidentiary hearings, thousands of people are stuck in limbo. While judges grapple with the question of whether or not the new legislation is even constitutional every trial outcome, both acquittals and convictions, could be overturned if the judge’s ruling is later deemed incorrect.
It is not easy to completely break the legal system in a country like Canada. It takes a lot of audacity and recklessness to wreak the havoc enacted by the Liberal government with Bill C-51.
Because the new rules of evidence hadn’t been in effect during the cases before the Supreme Court at the beginning of the year, the rulings made in cases like Barton, Goldfinch and R.V. have not had to deal with the impact it will have now that Crown prosecutors have to follow the same onerous pre-trial rules.
Because Bill C-51 was crafted and passed into legislation before these Supreme Court decisions, the consequences on the Crown weren’t taken into consideration when they voted to pass the bill. If parliament had known their new rules would also hobble the prosecution of sexual assault allegations I wonder if they might have paid more attention to the defence lawyers who demanded caution.
As it stands, prosecutors will now have to figure out how to build a case if they aren’t allowed to mention things like a lack of prior sexual history or evidence that the complainant would “never” have agreed to specific sexual acts. Prosecutors may have trouble obtaining or using text messages that complainants wish to rely on. After all, the government expanded the new rules to cover all evidence in a sexual assault trial, not just those of a “sexual nature.”
With the reciprocal requirements now affecting both sides, no evidence from either prosecutors or defence will be deemed admissible without prior permission from a judge. It’s probably the first government in the modern world to think presumptively barring all evidence in a criminal trial was a good idea. Hopefully, the Supreme Court can set this right and fix it quickly.
Meanwhile, what a brave new world.
Marcus Knight—a student with autism, cerebral palsy, and learning disabilities—has prevailed in his lawsuit against Saddleback College, according to exclusive documents obtained this Sunday by TPM.
After being accused of sexual misconduct, Knight filed the lawsuit to clear his name.
Knight first came to national attention in 2018 after his attempts to make friends landed him in his college’s office for sexual misconduct (also known as a Title IX office). As a young man with autism, making friends has always been difficult for him, he told me.
One female student reported him because she was uncomfortable with Knight asking for fist-bumps, one of the “safe ways” he was taught to make friends, his mother said. Another student claimed Knight was looking at her weird and following her around campus.
And yet another woman complained that Knight had “over 300 photos” of her. (This was likely due to Knight’s cerebral palsy, which resulted in a motor tic as Knight attempted to press the “selfie” button on his phone with the woman, which was set to “burst mode”).
None of the three women who complained about Knight filed an official Title IX report.
Yet, despite this, and the fact that none of the women testified against Knight, the school’s Title IX Officer Juan Avalos still slapped Knight’s transcript with two Title IX infractions, possibly more.
The young women who reported Knight, Melissa Gold and Noemi Bueno Rojo did not respond to multiple media inquiries. Hannah Udall (now Torok), who also reported Knight for misconduct, initially said she would be happy to be interviewed but later declined.
In the initial suit against Saddleback College, Knight’s lawyer Mark Hathaway argued that Title IX officer Dr. Juan Avalos made unlawful errors during the investigation (such as not giving Knight an opportunity to defend himself).
One complainant, Melissa Gold, even declined to testify, saying she could care less.
“I have nothing to report. I don’t want to go over this any further. It’s done and I don’t go there (Saddleback College) anymore. This is irrelevant to my life now. I don’t care what happens officially at this point,” she told Dr. Avalos.
Later, Knight gathered 15 character witnesses to bring to his trial on campus. But Gold declined to testify and failed to show up. The hearing was called off. But somehow, Knight, then aged 19, still got slapped with two Title IX (sexual misconduct) sanctions.
These sanctions can be life-altering.
“We’re very scared. What happens when Marcus tries to transfer to a four-year university? Will the accusations follow him? I am terrified for his future,” Aurora Knight emailed me the night before the trial.
But last week, Knight went to court. The trial was short and Knight’s mother admits that she “didn’t really understand what was going on.” But shortly after, Aurora Knight messaged me: “We won!”
“The Court… hereby concludes that the findings and sanctions issued by Respondents [Saddleback College and Juan Avalos] against [Marcus Knight] should be set aside,” the court ruled.
“He is smiling! After court Mark [Hathaway] took a selfie with Marcus. Then we told Marcus he could do a selfie too … he was afraid to do so. But we told him that it was ok, and he finally did! He wants a fist bump and selfie party!”
“We fight for colleges and universities to treat everyone fairly so students do not lose access to education,” Mark Hathaway told TPM on Sunday.
“Saddleback College and Dr. Avalos are required to comply with the judgment and correct their records or be held in contempt and fined or jailed. We fight for colleges to treat everyone fairly so students do not lose access to education,” Hathaway added.
According to Aurora Knight, Saddleback has 30 days to remove the Title IX sanctions from her son’s record, she was told. How this all happened? She doesn’t know. “He was a great kid in high-school. No problems. Marcus just wants to be like everyone else.”
After her son was accused, Ms. Knight set up a GoFundMe to help pay for Marcus’s legal fees. Since then, more than 300 people have donated roughly $14,000, only eight thousand shy of her goal.
“We just want to put this past us,” said Aurora Knight.
TPM reached out to Leticia Clark, District Director of Public Affairs, to ask a number of questions following these developments. Clark said she was unable to answer a number of my questions on the record because the case is still considered “pending litigation.”
This is an ongoing story. TPM is tracking developments as they happen.
Toni Airaksinen is a columnist for PJ Media, The Post Millennial, and a digital media strategist for kosher restaurants and small businesses. She graduated from Barnard College in 2018, and has also published in USA TODAY College and Quillette. Follow the author of this article on Twitter: @Toni_Airaksinen.
On September 19, 2019, new federal legislation kicked in which eliminates access to a preliminary hearing for people charged with crimes that hold less than a 14-year maximum sentence. This change was presented as an attempt to address the 2016 Supreme Court ruling in R v Jordan, which placed time limits on prosecutions and resulted in hundreds of criminal cases being thrown out for unconstitutional delays.
Unfortunately, removal of preliminary hearings will likely have the opposite effect and the combination of recent amendments to the criminal code could prove disastrous.
The problem isn’t just a disadvantage to the accused, defence lawyer and legal expert Joseph Neuberger told The Post Millennial “this is very unfortunate because the preliminary inquiry, if run efficiently, can be exceptionally helpful to both the Crown and the defence in order to assess the case and bring out issues, including factual issues.”
Neuberger pointed out that the changes were primarily intended to change the trial process in favour of complainants in sexual assault trials. Indeed, a review of the debate on the bill reveals then Minister of Justice Jody Wilson-Raybould’s explanation of the intention behind the amendment:
The proposed measures would reduce the number of preliminary inquiries by approximately 87%, ensure they are still available for the more complex and serious offences, help unclog the courts, and reduce burdens on witnesses and victims from having to testify twice, once at a preliminary inquiry and once at trial. For example, this measure would eliminate the need for a vulnerable witness in a sexual assault or child sexual assault trial from having to testify twice.
Neuberger said “I look at the Trudeau government like an activist group, where they don’t want to ‘re-victimize victims,’ and the reality is—that presupposes guilt.”
In 2016 the government embarked on a mission called “Transforming the Criminal Justice System” which heavily focused on how “victims” experience the justice system. While some witnesses are undisputedly victims, like those who have lost a family member to murder, the revamping of our legal system had a primary mandate to address presumed crimes where an alleged sexual assault complainant hasn’t even reported to police.
While testifying in a public courtroom may be stressful for any witness, Neuberger pointed out that we can’t “choose between witnesses and say, ‘You’re more worthy of protections and sheltering and reversing rules of law for you.’” Neuberger went on to recount a trial in which a police officer broke down in tears while testifying about a murder case which continued to traumatize the officer. Murder charges still have access to preliminary hearings under the new regulations. Neuberger said:
What we’ve decided to do is elevate people in the domestic context and in the sexual context, [granting] those complainants a special place in the criminal justice system, and we’re going to do everything possible to ensure convictions and that they don’t have to get asked questions and they don’t have to be subjected to sexual history issues. The government is bending over backwards and trying to brainwash courts that these people are deserving of far more protection than an accused, and far more protections than other people in other cases that are equally as traumatic, if not more.
Joseph Neuberger’s extensive experience of preliminary inquiries is that complainants in sexual assault cases can equally benefit from having the case properly assessed in advance of trial, sometimes sparing them from a lengthier and more vigorous cross-examination where the process is likely to be more gruelling and the prospect of conviction is extremely low.
He pointed out the variety of effective protections that fragile complainants are already offered, including closed-circuit TV, privacy screens, and the accompaniment of support workers.
Neuberger sees the new changes as a result of the government “kowtowing” to specific activist groups, saying “It is astonishing that we have allowed this type of erosion of our rights in this country simply because of certain advocacy groups.”
The idea that eliminating highly effective preliminary hearings will somehow speed up trials is a red herring. Combined with the new rules on evidence in sexual assault hearings we are likely to see more delays and more charges dropped for exceeding the time limits on prosecution.
It is not just the defence that benefits from a prelim, Neuberger pointed out that sometimes the accused enters into a plea bargain after seeing the strength of the case against them.
While the loss of preliminary inquiries has just taken effect and the results are yet unknown, one thing is certain: attempts to “modernize” the legal system should not presume that acquittals are a failure of the system and remember that prosecutors have a special duty to seek the truth rather than keeping a scorecard based on conviction rates.
As if it wasn’t enough already, there’s a new book on the Brett Kavanaugh Supreme Court appointment and the hearings that preceded his confirmation as Associate Justice. An excerpt of New York Times reporters Robin Pogrebin and Kate Kelly’s new book The Education of Brett Kavanaugh: An Investigation, details allegations that were made about Kavanaugh’s alleged sexual misconduct, not in high school this time, but during his study at Yale. This has led to calls for Kavanaugh’s impeachment. The only problem is that there’s every good chance that the allegations are false. They are at least unproven, and they are nothing like a criminal offence.
Democratic lawmakers are calling for a new investigation. Those demanding Kavanaugh’s impeachment include six 2020 presidential candidates: Julian Castro, Kamala Harris, Elizabeth Warren, Beto O’Rourke, Pete Buttigieg, and Cory Booker. One can only assume that these individuals do not believe in due process.
The story goes that at a party at Yale, when everyone was trashed, Kavanaugh “took it out.” Mollie Hemingway of The Federalist went to the trouble of reading Pogrebin and Kelly’s book, not just the excerpt printed in the Times, and discovered that the young lady in question doesn’t even remember the incident. The claim, however, was not made by an aggrieved party, but by an onlooker, former Clinton attorney Max Stier (not that his affiliation with the first family of philandering has any bearing on his testimony).
Speaking to Noel King on NPR’s Morning Edition, in light of these new allegations, Kamala Harris called for Kavanaugh’s impeachment. King asked whether she “was troubled by a lack of evidence.”
Harris replied: “I would say that the fact that someone does not remember the details of an incident doesn’t mean there’s lack of evidence if there are other witnesses who can establish that the facts occurred, so I wouldn’t say that there’s no evidence.”
King clarified her question: “The witness has not established that this in fact occurred. It was a male classmate of this woman. He said it happened, but no one has proved that it’s happened. Does that trouble you?”
Harris replied: “Someone should investigate this. The fact that something has not been proven doesn’t mean it didn’t occur… My point from the beginning about all of these allegations against Brett Kavanaugh, is there’s not been a robust, a meaningful investigation. There’s not been an investigation with the level of attention that normally would occur around these kinds of allegations and especially related to the subject at hand, which is the appropriateness of this individual serving on the highest court of our land for a lifetime appointment.”
To her credit, King pushed back when Harris spoke about how “it was clear that he lied under oath, we all know he did.”
“No, we don’t,” King replied. And it’s just possible that liberal media is beginning to have enough of the allegation heavy/proof light takedowns.
Previous allegations by Dr. Christine Blasey-Ford made a circus out the Congressional hearings a year ago, and there was an investigation that gripped the nation. Kavanaugh was accused of sexual misconduct, and then when he fought back against the accusations, was accused of being an “angry man.” This raised concerns that he could not weigh arguments dispassionately. There is a history of contentious Supreme Court nominations, but accusing a man of misbehaviour only to turn around and accuse him of being angry when he defends himself was a bit much.
Mollie Hemingway and Carrie Severnino dug deep into Kavanaugh’s professional past in their book Justice on Trial. While this book hit the bestseller list, the co-authors were never asked to appear on any talk show to talk about it. One would think readers would want to know more about their exhaustive methods and their findings. But it turns out that the mainstream media is more concerned with unsubstantiated allegations than any actual facts.
Alexandria Ocasio-Cortez (D-NY 19th District) weighed in, reiterating Harris’ claim that Kavanaugh lied under oath and should be impeached.
After Hemingway’s reveal that the allegations against Kavanaugh were unsubstantiated even by the person to whom the incident supposedly occurred, The New York Times amended their story, stating “An earlier version of this article, which was adapted from a forthcoming book, did not include one element of the book’s account regarding an assertion by a Yale classmate that friends of Brett Kavanaugh pushed his penis into the hand of a female student at a drunken dorm party. The book reports that the female student declined to be interviewed and friends say that she does not recall the incident. That information has been added to the article.”
The existence of allegations does not negate due process. In light of these misgivings about the accuracy of the accusations against Kavanaugh, Senator Ted Cruz is curious to know if any of the democratic presidential candidates will retract their calls for impeachment.
However, allegations these days equivocate to the colloquialism “where there’s smoke, there’s fire,” and no one with access to a platform wants to back down. It’s worth noting, however, that since the first Supreme Court in 1970, only one Associate Justice has ever been impeached. Sam Chanse apparently pissed off Thomas Jefferson, and was impeached. However, he was cleared by the Senate and served out his lifetime appointment on the bench.
These continued attacks on Kavanaugh are entirely politically motivated. “Tarnishing the reputation of a justice who would have the power to overturn abortion law Roe V. Wade ‘is part of what motivated Christine,’ her attorney Debra Katz said. ‘Elections have consequences, but he will always have an asterisk next to his name,’ she said of Kavanaugh,” Hemingway reports.
Calling for impeachment has become a common democratic refrain. Jerrold Nadler (D-NY 10th District) insisting on impeaching the president basically for attitude infractions. Democratic candidates are calling for the removal of a sitting Supreme Court Associate Justice, though no crime has been proven to be committed, and the allegations against him aren’t even criminal in nature. The Women’s March is getting together a whole rally to #ReclaimTheCourt where they will insist on impeachment, based on some kind of gut feeling or whatever.
The New York Times has displayed an irresponsible bias in publishing an excerpt about allegations that doesn’t even give all the facts of the circumstances about the accusations, never mind any actual proof of the thing itself having happened. Journalists in new media are the ones punching up at the legacy outlets telling them where their biases have steered them wrong. Lawmakers are leading with just the thing they’re accusing Kavanaugh of taking out. And the public is left out in the cold, without any idea who to believe or what the facts are.
Lawmakers should be motivated by a sense of justice, a dispassionate demand for due process, and to do what’s right by their constituencies, not what’s best for them politically. Journalists should be driven be a desire for facts, to tell a true story, and to unearth actual information. Reporting on allegations does not substantiate those allegations. The New York Times should already know this. At one point they were the gold standard, but it appears that those days are over.