It is dispiriting and distressing listening to a complainant describe her thoughts, feelings and actions during an alleged sexual assault.
How a defence lawyer will parse every word, every recollection, every purported stumble in memory, a detail that can be magnified and refuted.
Yet it is also of crucial importance at a criminal trial when the defendants have pleaded not guilty to an episode, as described, of revolting manhandling, treating a young woman like a sex rag doll. With no independent witnesses.
Even with limitations now imposed on what can be asked of a complainant 鈥 sexual history and such 鈥 lawyers have wide latitude in their cross-examination. Discomfiting the alleged victim is within the bounds.
At the London, Ont., trial of five former junior hockey players, E.M. 鈥 her identity protected under a standard publication ban 鈥 is confronting some of the sharpest legal minds in the profession. They have shown her no mercy. Of course, that’s the job.
The court has heard, repeatedly, of the events that transpired at Jack’s bar and afterwards in Room 209 of the Delta Armouries. The defendants will assert that everything was consensual. E.M., who was 20 years old at the time, has insisted that most of it was not, but that she was too scared, too benumbed to protest and remove herself, to flee. That she submitted, in words and deed, because she was seized by a near-out-of-body experience. That her unwillingness shouldn’t be measured by what she did, nor by her acquiescence.
鈥淚鈥檓 going to suggest you said something to him along the lines of, 鈥楪et some of those guys back
But how else can a jury judge when they can’t look inside the witness’s mind or soul? That is in the intrinsic dilemma of a sexual assault trial, where the hard facts on which a verdict revolves are often elusive. Credibility becomes a defining factor in duelling accounts. And battering the credibility of the complainant 鈥 she’s misremembered, she’s lying, she’s untrustworthy 鈥 so pivotal for the defence.
On Tuesday, a composed E.M. was put through her second day of cross by David Humphrey, who is representing Michael McLeod. The other defendants are Alex Formenton, Carter Hart, Dillon Dub茅 and Cal Foote. In an agreed statement of facts, E.M. has acknowledged that she went to the hotel room with McLeod and their initial sex was consensual. But she hadn’t expected or known that McLeod had sent invitation texts to teammates. The Crown has claimed there were up to 10 young men in that room in the subsequent early morning hours of June 19, 2018. Not all of them participated in the purported sexual escapades. Some wanted no part of it and left.
Humphrey banged away in particular at the moments after E.M. had sex with McLeod, stepping into the bathroom for 10 minutes. “I had gone into the bathroom, but there were more (men) when I came back out,’’ the witness testified. “I had no idea the first two would be entering, and more after that.”
“You had the opportunity to leave,” said Humphrey.
Michael McLeod and the complainant, circled, at top, are seen together at the bar in a still in a still from surveillance footage inside Jack’s Bar.
Ontario Superior Court ExhibitE.M., testifying from another room in the downtown courthouse: “I don’t recall having any chance to do that. 鈥 I wish I could have figured out a better way to handle it. I think I didn’t have control enough to make a better decision. It was a really unexpected situation.”
Humphrey accused the witness of flirting with the men. Her memory was vague on that point. “I don’t recall having any conversation with them. I was out of my body at that time. I shut down and went onto autopilot.”
She was also drunk, having consumed at least eight alcoholic beverages at the bar.
But she clearly remembered that a sheet was laid on the floor for her. “They told me to lie down on the bed sheet, to touch myself and moan. My body started automatically complying. I was scared, I was intimidated, lying on the ground, naked, vulnerable. I was watching my body doing this and acting like I’m liking it, completely separated from what was happening.”
鈥淚 felt kind of like I was numb and on autopilot and going through the motions,鈥澨齮he woman
Humphrey suggested that she was actually enjoying the attention, noting that she’d never mentioned the word “scared” in her interview with police a few days later. “I hadn’t processed it yet. I know I wasn’t liking the attention. I didn’t ask to be put in that situation.”
If she made no mention of it in her statement to police, it was because “I was bottling this up, didn’t want to think about how horrible it was.”
E.M. told Humphrey she had no memory of inviting the other players to have sex with her. “I really don’t think that I did. I recall them ordering (each other to have) ‘sex with this girl.’” She didn’t remember herself saying to them, “You guys are pussies.” And “come on, someone have sex with me.”
“That doesn’t even sound like how I would usually speak. It doesn’t sound like words that would come out of my mouth.”
But, if so, “that speaks to my level of intoxication. They knew that, they could see that, and they still did what they did.”
The witness was again shown a clip from a video that was apparently filmed at some point in that hotel room by McLeod. In it, she’s shown holding a towel against her naked body. This was apparently shot toward the end of the evening, after the other men had all left and after E.M. and McLeod had another bout of sex in the shower.
“I had no idea there had been video made of me,” said E.M., who agreed she’d largely sobered up by then.
Except the clip seems to show E.M. directing her comments at a videotaping McLeod.
A pair of stills from videos showing the dance floor inside Jack’s Bar in London, Ont., on the night of June 18-19, 2018, show the complainant with world junior team members Dillon Dub茅, circled left, and Michael McLeod, right.
Ontario Superior Court ExhibitUnder questioning, the witness also agreed that McLeod had asked her on several occasions over the course of the night if she was OK, if she was all right with what was happening. She’d not stated otherwise.
On the video, E.M. says: “I enjoyed it. It was fun, consensual. You’re so paranoid, holy. I am so sober now.”
On the stand, however, E.M. said on Tuesday: “To me, it felt like he was hounding me to say that (it was consensual).”
Yes, they’d just had sex again in the shower. But McLeod’s treatment of her afterwards she found disrespectful and rude because he clearly wanted her gone, needed to get some sleep because the players had an early golf game planned for the morning.
Humphrey: “You’re all done for the night and you’re still hanging around.”
E.M.: “I don’t feel like I was just hanging around. It seemed he was just kind of done with me.”
