Hawkes prosecution failed for want of a trauma expert
“It’s like a David and Goliath story, right from the start,” said the wife of the complainant. Only, this time Goliath won. She was reacting to the Jan. 31 acquittal of Rev. Brent Hawkes, senior pastor of Metropolitan Community Church of Toronto, on historical sexual assault charges from the mid-1970s when he was a teacher and coach. When it came to this prosecution at Kentville provincial court in rural Nova Scotia, her own David hadn’t been vindicated – at least legally. (The actual identities of the complainant and two other Crown witnesses are protected by a publication ban.)
Associate Chief Judge Alan Tufts concluded in his 62-page decision that while he “acknowledge(d) that there is a likelihood or even a probability that some sexual activity happened in the bedroom,” he was “not convinced of that beyond a reasonable doubt” and was therefore finding Hawkes not guilty.
The complainant had vividly described painful reciprocal forced oral sex during a visit to the accused’s trailer on a day or evening when all three Crown witnesses testified they had been intoxicated. The defence eventually conceded that the accused had facilitated the then-minors’ access to alcohol.
Although the judge named several liabilities in both the prosecution and defence, from where I sit, one unnamed strategic liability was fatal to the prosecution: its lack of a witness qualified as an expert in trauma.
Trauma disrupts one’s capacity to encode, recall, and describe memories. Asked whether it would have assisted the Court to have heard from a trauma specialist, the complainant confirmed, “I would think so. From the three years of counseling work that I went through, yeah. Trauma-informed therapy is a lot different than what people expect. You actually see the world in a different way, in many instances.”
An example of how the complainant knows his perception has been distorted is that, while acknowledging that he is and was bigger than the former teacher and coach, he testified he recalled Hawkes as having been larger. He did not in any way deny the objective reality but was honest about what he remembered from his adolescence. The complainant attempted to explain for himself that he figuratively looked up to Hawkes and that, in the aftermath of the alleged assault, his mind proposed a solution to his perception of guilt for not having actively resisted the accused.
A trauma expert could have demonstrated first that the complainant’s distorted historical perception of the accused may well have been a normal reaction to a very abnormal situation; and second that this fit a pattern entirely consistent with trauma in the aftermath of a sexual assault. Instead, Tufts noted that Crown prosecutor Bob Morrison hadn’t argued that the accused’s position at the school or age difference from the complainant – both of which suggest a power differential – were factors to be considered in evidence. The judge did not accept the complainant’s own explanation of the size discrepancy and became less confident in his reliability.
Use of a trauma expert also would have helped to better structure the prosecution’s evidence and cross-examination. Tufts explained that, whereas the complainant felt there had been “grooming” prior to the alleged assault, he wasn’t provided an elaboration of this claim. Tufts even specified that Hawkes was never questioned about beer and video gaming, about which the complainant both told police and testified on the witness stand. While the complainant testified that he had avoided Hawkes after the alleged incident, Tufts found that the connection between the alleged assault and the avoidance, and the significance of the same, was not provided to him.
Most importantly, a trauma expert would have helped Tufts interpret the evidence before him. Not surprisingly after 41 years, there were some inconsistencies and gaps in the witnesses’ collective memories. The judge is restricted to an examination of the evidence he is given, and in this particular matter, he made clear he was not given all that could have been determinative for a conviction.
While being open to historical evidence, Tufts found he was not able to discern from the dated accounts the “context and a sufficient account of the circumstances in which events are alleged to have occurred … The testimony is very much a patchwork of memories and gaps in the evidence.”
The complainant had said that his experience “was like a movie where the soundtrack did not match the picture. It was a little out of focus and the whole experience was surreal.” A trauma expert would have been able to reinforce this as illustrating dissociation. Likewise, the complainant’s destructive life trajectory in early adulthood is utterly consistent with the aftermath of trauma, whereas his pro-social midlife choices coincide with a progressive journey of healing.
The court did not hear from such a viewpoint. Instead, Tufts heard only from the defence’s expert witness, Timothy Moore, chair of the psychology department at Glendon College. Moore proposed that these memories could have been impaired by the large quantities of alcohol the witnesses had consumed, by the passage of decades, and by “imagination inflation” during the process by which the complainant wrote his story for a group of survivors of sexual assault.
Moore does indeed have impressive knowledge of memory and cognition. The problem is that the bulk of his expertise and references pertain to coerced confessions, and should have been applied more cautiously to an evaluation of traumatic memories. Lacking an alternative viewpoint from the more relevant area of psychology, the court was left with a significant gap in research and clinical knowledge.
According to Morrison, the police investigation was “very thorough, they spoke to almost every possible witness they could”; and then he as well as other Crown attorneys reviewed the case to ensure there was a reasonable likelihood of conviction. With so much effort already having been invested, it is tragic that the Public Prosecution Service did not then apply the resource of a trauma expert.
It turns out that the complainant had even anticipated the problem before the case was prosecuted. “I actually asked if there’d be any trauma experts here, and Halifax is the closest.”
Even though legal vindication eluded him and his allegation was not proven in court, the complainant stands by his testimony. “I know what happened, he knows what happened, and there are lots of other people around here who know what happened. I’m not the only victim in these parts, I’m 100 per cent sure of that … There are lots of people who didn’t want to come forward.”
The complainant, who supports Hawkes’ work on behalf of gay rights, said of the accused: “I’m one man, he’s a movement.”
Theresa Yoshioka, MSW, co-trains Catholic clergy and lay leaders in SSA/GD/LGBT-related pastoral care and evangelization with her husband, Alan Yoshioka. She has extensive training and experience participating in the forensic assessment, case management, therapeutic treatment, and courtroom prosecution of sexual abuse cases.