Not caring about what other people think about him is something I continue to work on. Still, the next time anybody considers helping him or giving him a second chance or saying that he has paid his debt to society and that he should face no further consequences, please also think about those he has left in his wake. The legal system has treated him far better than it ever treated any of us.
RECOVERY ITSELF NEEDS to be put into perspective. It’s not like going into a hospital with a broken arm, getting a cast put on it, and then emerging a month or two later with an arm that’s as good as new. Rather, you develop a means not to eliminate the past but to cope with it, to incorporate it into who you are as you move forward with your life.
Recovery is about learning and developing coping mechanisms that put the past into a perspective that allows you to live a life that will not be dictated by that past. You simply cannot make the past go away, as good as that would be to happen. The past will, unfortunately, always be a part of the tapestry that is your life. Recovery teaches you that the rest of your life remains to be woven into that tapestry and that you can choose what to weave into it.
As good as things are now, I still have some days where I start thinking about the past and about how stupid I must have been, how weak I must have been, to let this happen to me. I tell myself to suck it up, I remind myself that it’s over, that he can’t hurt me anymore. I tell myself what I’ve learned in therapy—that the grooming process is complicated, that I was young, that I’m not responsible, that I couldn’t have stopped it given what he was doing to me.
And I can say those words. But I know deep down what is wrong. My feelings have nothing to do with him. They’re all about me. How did I ever let this happen to me? Seriously, how did I let this happen to me? With hindsight it’s all so obvious, so clear. Just how stupid was I? The answer I give myself is ugly. I must have been so weak back then and I must have wanted it to happen. Nobody will ever believe that he controlled me. Nobody.
But unlike before, the moment passes. Because, after years of therapy, I am indeed better. I remember that I didn’t do anything wrong. He did.
TWELVE
MOVING THE LAW FORWARD
IN AN INTERESTING way, the worse the legal system performed throughout Graham’s trip through the legal process, the more of an opportunity it presented for possible positive changes. Rational reforms to the parole and pardon systems—rational at least as far as the reforms applied to the very worst of offenders such as Graham—came about quickly following the outcry after word of Graham’s pardon was made public. Similarly, awareness of the inadequacy of the current sentencing provisions for sexual offenders increased as a result of the publicity arising from the national outcry at the minimal sentences given to Graham.
Greater understanding and positive change can grow out of horrible decisions and, in this case, out of an inadequate understanding of the impact of assaults on victims.
SEVERAL YEARS AGO, the NFL suspended a star player, Ray Rice, after investigating reports that he had hit his fiancée. The NFL suspended him for two games, but later increased it to six games as a result of public outrage. The NFL was applauded for correcting a mistake, two games having been too lenient and six games seeming about right.
But then a videotape of the assault emerged, and people were horrified that missing six football games could ever be considered an adequate sanction for what they saw there.
Why did it take actually seeing a tape of the assault for people to understand its seriousness? Because it’s too easy to hear the word assault and skip over the details. The word itself allows you to compartmentalize and intellectualize what happened. It doesn’t force you to think about what Rice’s fiancée’s face looked like as his fist smashed into it. You didn’t have to hear her bones as they cracked, you didn’t have to consider the drops of blood, the brain inside her skull jerking wildly, the immediate lifeless fall to the ground.
What goes through your head when you hear the term sexual abuse?
I believe that one of the reasons our system does not properly assess the harm associated with sexual assault is the term sexual assault itself. It covers so many different physical acts that it has ceased to have meaning. It’s a term used to remove the stigma from a victim, a term designed so that a victim doesn’t feel violated all over again whenever it’s mentioned. It was designed to protect the victim.
However, in protecting the victim, the term dehumanizes and diminishes the crime. It does not carry an appropriate level of animus against the perpetrator. My guess is that Graham would still be in jail if there were crimes for “digitally raping a young boy,” “sticking your penis in a young boy’s mouth,” and “ejaculating on a young boy’s body.”
The problem is that the terms we use to describe the crimes don’t convey the horror of the acts, and so the sentences given to those who commit such acts deviate from what would be just and appropriate for the carnage they leave behind with the victim.
I understand that any move away from the term is virtually impossible in the current environment given the proper sensitivity we show to victims. But because the term doesn’t convey the pain and suffering that victims experience, sentencing tends to be inadequate, causing more suffering to the victim, who then believes that nobody understands the impact of the crime.
People thought Graham’s initial sentence of two years for hundreds of acts of sexual abuse was too short. Some of them were placated when the sentence was successfully appealed and increased to five years. But as with Ray Rice and his one punch, if you had seen the actual abuse, if you had experienced the actual abuse, if you had looked more deeply into the details of what he had actually done, the reality would have been too ugly for you to have ever imagined.
Graham James is lucky there is no videotape of his actions, or he would never spend a single day of the rest of his life outside a prison.
OVER THE PAST several years I have been asked on numerous occasions to give evidence to committees of both the House of Commons and the Senate on matters relating to criminal justice reform, with a specific focus on the place of victims, especially victims of sexual assault and child sexual assault legislation, in our legal system.
•There are no easy solutions and no absolute right and wrong answers.
•I believe that we over-incarcerate for so many crimes but still under-incarcerate our worst offenders.
•I believe that we under-rehabilitate not only criminals but also victims too.
•I believe that victims are not sufficiently recognized in our legal system. I believe that it is possible to include victims in the system not out of vengeance but to ensure appropriate denunciation of the criminal act. Victims’ voices can have a positive impact on the administration of justice by humanizing the process and reminding all involved that lives have been affected by the criminal and maybe also by the court process.
•I believe that legislation as such need not be determined as constitutional or unconstitutional, but rather that we should try to make the best laws that we can and then implement them, knowing that we would always apply a judicial review of the application of that law in the specific instance when assessing whether an individual’s constitutional rights had been infringed.
•I abhor mandatory minimums and prefer sentencing guidelines, as I believe that there should always be room for exceptions. At the same time, I believe that judges should be required to respect legislated sentencing guidelines and only deviate from them in the most extreme of circumstances and that it is essential that such guidelines respect the severity of the impact of the crimes.
•I believe that education and training are essential and that judges should be given tools to better address issues that may arise in sexual assault cases, such as deferred reporting and ongoing contact with an accused.
•I believe that we should revisit the right to remain silent in sexual assault cases. Such cases so often revolve around issues of “he said, she said,” and that canno
t be a fair process when one of the parties has the right to remain silent.
•I am happy that pardon and parole changes were made in response to my disclosure that Graham had received a pardon. I am not happy that the changes have adversely affected those who have committed lesser crimes, where the focus should be on increased rehabilitation, not less.
MY EXPERIENCE WITH the legal system was that it did not adequately consider victims, let alone protect them. It has not traditionally recognized the severity of sexual assault and its lingering damage and instead shows far more concern for fair treatment and rehabilitation of those who commit sexual assault than those who suffer the abuse. We do a good job of trying to rehabilitate the criminals. We do a terrible job of rehabilitating the victims. This needs to change.
As I have noted, sexual assault is a crime that is often a case of “he said, she said” with the most problematic legal issue being that very often “he” gets to hide behind his lawyer. Absent any corroborating physical evidence, such a case, by definition, becomes all about the credibility of the complainant, as the only thing being tested in court is the complainant’s evidence.
And that is as it should be. All evidence that goes into court must be tested for credibility. This can become a difficult issue, however, when an alleged victim has acted in ways that seem to show a lack of candor, which might lead one to assume a story is being made up. Consider an alleged victim where there is a time gap between the actions in question and when the victim reported them to police, or when the victim may have continued to interact with the alleged abuser, or when the victim may have left out embarrassing facts or given incorrect details to the police. All of this will be brought up by the defense in court and the alleged victim will be made to look like an unreliable witness at best, a liar at worst.
Yet is it reasonable to expect that all victims will be able to be perfectly candid when giving statements to the police about their abuse? Or are there other issues that might reasonably be expected to impact an alleged victim? How much can one remember from an assault? What process does a victim go through to attempt to rationalize an attack to allow a victim to go on with life? How much can a victim admit to one’s own self, let alone to a stranger at a police station, about actions that the victim may have taken with an abuser? How long can it take a victim to understand that no matter what they may have done, an attack is an attack?
That is not to say that an alleged victim’s statements and actions are not to be fully tested in court, that questioning an alleged victim should in any way be restricted, that an alleged abuser should be entitled to anything but the best defense possible. Absolutely the alleged abuser must have these rights for our system to work. However, for the system to work we must also understand why alleged victims may respond in ways that might seem to imply a weak story but which might just be perfectly rational and normal ways in the aftermath of an assault.
Most importantly, when the only evidence for whether or not an assault took place is a set of competing stories, is it fair that one of the parties is permitted to remain silent? We see how the alleged victim looks when the unverified story is put to the test in cross-examination by the defense, a process that can destroy an alleged victim. Meanwhile, the alleged abuser sits quietly beside a lawyer. Perhaps the alleged victim wouldn’t look so bad if the alleged abuser also had to face cross-examination?
Credibility is difficult to establish when there are competing stories and no corroborating evidence. I would never advocate for a system that would convict anybody on the basis of a story told by someone who has been shown in court to be less than credible. At the same time, I believe that it’s important to better understand just how and why a victim might be unwilling to disclose all of the details of his or her actions as they relate to an alleged assault. I believe it is also important for the courts to gain a better understanding of how victims may respond to their alleged abusers and how they may take steps to preserve some self-respect both through continued interaction with an abuser and throughout the legal process.
Is a purported victim not credible because he or she didn’t report the alleged abuse immediately or maintained ongoing contact with an alleged abuser after the incident in question? Or is she blaming herself, thinking she is weak and stupid? Is the victim ashamed and trying to show that she didn’t fall for a predator, that the predator really is just a nice guy? Is she trapped with no way out, afraid of the consequences of trying to get out of the relationship?
The answer usually is that we have no idea. But that very answer of not knowing also means that the fact that the incident has not been immediately reported, or that the purported victim maintained ongoing contact, does not mean there was no sexual assault, it does not make the purported victim anything less than credible or any less of a possible victim without people on the outside knowing much, much more about what did or did not happen.
Not all victims will respond the way we think they should. Not all victims are prepared to report an incident immediately. Not all victims are comfortable disclosing all that happened. Not all victims are willing to disclose actions that may embarrass them. For these reasons, such victims can be terrible witnesses in sexual assault cases. But while they may be terrible witnesses, and while convictions may not be possible, it is still possible that the alleged abuse took place. A higher level of expertise would be welcome in our court system so that the actions of the witness could be better understood within a broader context.
There would be an unconscionably serious problem if we ever moved beyond the concept of innocent until proven guilty. Nobody wants to move beyond this concept. Well, I don’t.
At the same time, however, a competing assumption that the witness is telling the truth until that statement has been shown to be false would be welcome. Do not ever convict on that assumption—this is not for the courtroom but for the court of public opinion, something very important in these matters. Nobody should ever be convicted on anything but proof beyond a reasonable doubt.
But for our legal system to work more fairly for an alleged victim in a sexual assault case it could be more effective if both parties were required to present evidence. I believe that the time has come for us to consider removing the right to remain silent in cases involving sexual assault so that things truly become “he said, she said.”
The important thing to a victim isn’t necessarily a guilty verdict. It can be more important simply to be heard. It’s one thing to have a system designed to attack credibility to the point where there are insufficient grounds for a conviction. It’s another thing if that system leaves the accuser looking bad without being able to put any such attack on credibility in the context of what the accused’s denial would look like after a similar review of his credibility in the circumstances.
Again, and to be perfectly clear, nobody should ever be convicted on anything but proof beyond a reasonable doubt. Never. The point I am trying to make is that in the case of sexual assault, unlike other crimes, an accuser can feel repeatedly abused by the legal process.
Think about how the legal system processes murders, for example. With a murder there is almost always evidence that a crime has been committed by somebody—there is a dead body—and the issue goes to “who did it?” With the equally serious crime of sexual assault, a possibly guilty party is often free to go about his daily business, in front of the alleged victim—something we as a society would never tolerate with a possible murderer—for the very reason that with sexual assaults, the issue is often as basic as whether a crime was even committed in the first place.
In the difficult circumstances of sexual assault, a type of timeout may be appropriate.
Imagine a world where a hockey team responded as follows:
Today we received word that Player X has been accused of sexual assault. This is a serious accusation, one the local police are investigating as we speak. We stand one hundred percent behind Player X, and we remind everybody that he remains innocent of any such
crime until proven guilty in a court of law.
At the same time, given the severity of the accusation and an initial assessment that the accusation is not merely frivolous but one requiring further investigation by the police, we equally support the accuser and stand behind her as well until more is known.
Accordingly, and without any prejudice to Player X, but in recognition of our equally important obligation to our community, it would not be appropriate for Player X to participate in any league games until more is known about this accusation. During his absence Player X will be paid in full and the NHL will not count any salary paid to him during this time against our salary cap.
We trust and expect that both our fans and our community will understand our decision and will support both Player X and the as yet unnamed accuser until more is known. We love our fans, we love our team, and we love the game of hockey. But we also understand that some things are more important than hockey, and this is one such thing. We will have no further comment on this matter until further notice.
A man can dream.
THE LEGAL SYSTEM will likely change only as fast as society at large is able to understand more deeply the real damage inflicted on a victim of sexual assault. We are, however, making progress, as both the medical community and society as a whole are coming to understand that sexual assault involves much more than the physical assault itself.
Things are starting to change. Education is the only way things will truly improve, and sentencing will only become more appropriate once the rights of the accused and convicted are met with an understanding of the true impact of the crimes committed and a need to respect the impact that the crimes have on victims. Simply stated, everybody in our system needs to understand that victims need to be rehabilitated too.
AS A LAWYER, I am well aware that all the issues I have noted above are in play anytime an accuser comes forward with an allegation of sexual assault. As a victim, I wanted justice. As a lawyer, I knew only a legal result was at stake, something that would be rendered by the courts from far above long, long after the actual events had taken place.
I Am Nobody Page 24