Apply logic to discussion around retraumatizing victims

The furor over Justice Minister John Hogan’s saying it was impossible for a lawyer to retraumatize a complainant in the trial of someone she had accused of sexual assault reminded me of something the late Chief Justice Robert Furlong of the Supreme Court of Newfoundland (not then “and Labrador” also) wrote in answer to a letter I had sent him after he had retired.

We had become acquainted when I was a reporter with The Western Star and he presided sometimes at circuit court in Corner Brook. After his retirement, I had once sought his opinion of what I thought might be a reasonable argument against abortion. He seemed to think it would not work, if I remember correctly, adding that he was “a lawyer, not a logician.”

Having once studied logic,

I use the phrase “begging the question” more accurately than I have seen or heard some other journalists use it. It refers to the “technical” error of taking for granted something you seek to establish, such as assuming someone has already been traumatized just because you want to call her “re-traumatized.”

Neither lawyer Lynne Moore, who accused Mr. Hogan of not understanding “the problem of sexual violence” because he had said what I first mentioned, nor Mr. Hogan himself, seems to me to be very much even a lawyerly logician.

For it would seem evident to any mere journalist accustomed to attending court cases that if a complainant’s, or anyone’s,

traumnatizded being is a significant factor in a trial, any sort of trial, as it quite often is not in cases alleging sexual assault, it must be established “beyond a reasonable doubt” as long as the “legal presumption of innocence until guilt is proven” applies equally to a man charged with sexual assault and a woman charged with defrauding her employer of $20,000. “Equality of the sexes” alone would seem to demand that, even if “equality under the law” had not done so at least since women became voting citizens.

Not every question raised in court since then about how much or whether victims had been victimized actually entails “blaming the victims,” even if the victims’ supporters call them not victims but survivors who alone can be trusted to assess the circumstances and extent of what they survived and exactly how much anyone else must have been responsible.

That latter observation calls to mind a sexual-assault trial on which I reported somewhat late in my career at The Western Star. The sole basis of a young female’s charge against a man was that he had lifted her, of course with her consent, to the roof of a shed or something similar, with his hand under her bottom. Once that was clear, his lawyer and the accused agreed quickly to enter a plea of guilty to the “lesser and included” charge of assault, so that the lawyer, as he told me a bit later, would not “have had to take her apart” in cross-examination to make sure his client was completely acquitted.

I think Mr. Hogan might logically have suggested that the legal term “sexual assault” need not always connote extremely forcible sexual compulsion, as someone might infer it did from what Ms. Moore said about “sexual violence.” I remember that when the terms “rape” and “indecent assault” were replaced with the current all-purpose phrase, a member of a women’s group objected strongly to that during a meeting with a prosecuting attorney, as “sexual assault” failed utterly to convey a woman’s rightful horror of what the onesyllable word had always represented. About the same time, I remarked to a woman in a provincial-court office who had worked at The Western Star that sexual assault now referred both to rape and to patting a woman on the behind. About the latter, she said, “That’s just a pass.” But I think it might have warranted a conviction of “indecent assault.”

Colin Burke Port au Port