Two years.
This is our justice system at work when dealing with an admitted and already convicted serial sexual predator? This is why we all came forward? This is supposed to encourage other victims of child sexual assault to come forward? This is supposed to send a message that we as a society will not tolerate those who prey upon our most vulnerable?
I say this with the utmost respect for judges and lawyers and commentators and other deep thinkers who are somehow able to reduce matters like these to academic discussions of the delicate balance between rehabilitation and the need to denounce and deter, to protect society, to promote a respect for justice. I can go on for hours with the best of them about the legal theories of crime and punishment. I can cite Michel Foucault on Discipline and Punish in a way that can end dinner parties.
My personal objections to Graham’s sentence are what they are. But, as a lawyer, I was and remain appalled. It has nothing to do with vengeance. It is about respect for the legal system. It is about recognizing the severity of the damage inflicted upon those who are sexually abused. Our courts have punished those who have stolen from banks more severely than they have punished Graham James. How is that even remotely appropriate in an advanced society?
I knew it was coming, but I was shaken by actually hearing it. By the end of the reading of the judgment I was shocked by the extent of my own rage. But I knew once again that I couldn’t let Graham know that he had won. As Sheldon and I made our way out of the courthouse we were immediately met by a throng of reporters. Stay positive, stay positive, we had agreed. As upset as we were, we didn’t want to do anything that would dissuade anybody else who had suffered from coming forward.
We put on a brave face in front of the media, saying to one and all that we were happy that Graham was going to jail, that if you come forward you will be heard, and after all, what was important wasn’t what happened to Graham, but that we all now focus on our own rehabilitation and on making things better for other victims out there.
And with that my nose grew more than just a little.
I cut my interviews short, for I had a class to teach. I had been invited to give a lecture to a first-year criminal law class at the University of Manitoba being taught by Professor David Asper, my former colleague at CanWest. Suffice it to say that my lecture was firmly grounded in reality, not theory.
THERE WAS AN appropriate amount of outrage at the verdict. At the same time, some commentators stated that the judgment had achieved an appropriate balance. As always, the debate played out between “appropriate rational sentencing” based on the “intellectual” and “good” versus “sentences which are based in vengeance,” which are “visceral” and “bad.” The usual suspects could be found in their usual places in the discussions.
The Crown filed an appeal, which would be heard in the Manitoba Court of Appeal on December 12, 2012. Once again, I flew back to Winnipeg to be there for the hearing. By that time I just wanted it to be over. We all just wanted it to be over. I was the only victim to show up this time, and according to the legal process now playing out, I wasn’t even a victim.
But that day, sitting there again in the gallery, something happened that renewed my faith in the legal system. No matter the outcome of the appeal, the process had finally introduced some humanity into what had otherwise been an extremely frustrating process. During the proceedings, the three justices from the Manitoba Court of Appeal serving on the panel asked difficult questions of both sides, and I was growing increasingly frustrated. But then one of the justices, Justice MacInnes, interrupted the proceedings and asked bluntly, “Why aren’t we looking at even more time than the Crown is asking for?”
Somebody finally appeared to understand the horror of what Graham had done.
In March 2013, the appellate verdict was delivered. Judge MacInnes, writing on behalf of the Manitoba Court of Appeal, overturned Judge Carlson, ruling that she had erred in applying the sentencing rules. Graham’s sentence of two years was extended to five years.
In interviews we hailed the decision. But what, exactly, were we celebrating? Five years? For all that he had done? We still had shattered lives to look back on and futures to salvage. But five is better than two, right?
Once again, I understood Martin Kruze more than anybody should ever have to understand him.
IN LAW SCHOOL I learned all about the theory behind the law and how and why our systems developed the way they did and why they operate in the manner that they do. I can answer the legal questions on the issues from both sides. I can go on and on about the theories of incarceration and rehabilitation and sentencing. Nobody need ever try to explain to me why the anger I have about what happened is misplaced. I understand the arguments in response to what others may see as my visceral, less intellectual discourse on these points. I get it.
But make no mistake about it. We have a legal system, not a justice system. Justice is not guaranteed in a legal system. It is a system that yields legal results in a game played between prosecution and defense with its own set of rules that is in no way related to the reality of what did or did not happen. A judgment comes long after the offense has been committed, and a judgment does not prevent the crime from happening in the first place. A judgment is just a result, no different from a postscript attempting to describe a bit of recent history.
One person’s vengeance, or excessive and emotional sentencing, is another’s retribution, and another’s appropriate sentencing consistent with legal principles. There is no objective standard, only a difference of opinion about what is appropriate in the circumstances.
The difference between how Jerry Sandusky was treated in the U.S. and how Graham James has been treated in Canada presents a stark difference in approaches taken to sentencing child sexual offenders. I am not a “lock ’em up and throw the key away” type of person. I believe that we over-incarcerate for so much, that we underrehabilitate, and that in the process we cost society dearly. So many who advocate for progressive reforms within our legal system have my ear, and I most often find myself nodding in agreement. But when it comes to many who commit serious crimes, I believe that we get it wrong by failing to accept that there really are sociopaths and psychopaths who are incapable of full rehabilitation. I believe this is especially so when it comes to sexual predators, and even more so when it comes to child sexual predators.
People need to better understand what child sexual assault is. Simply stated, child sexual assault is the killing of a victim’s sense of self, a taking of the child’s life as he or she knew it. A life has been taken. It should be recognized as such a crime, and it should be penalized as such a crime.
Yet, the severity of the crime is often not recognized in a legal system based largely on precedent, where decisions made in previous cases can control or guide decisions to be made in new cases. Decisions made when there was an inadequate understanding of the severity of a crime can last forever within the body of precedent. This is a problem, for sexual assault is only now increasingly being seen for the serious crime that it is. Previously it was seen in the context of a time when women were considered property and sexual assault wasn’t a crime.
Our views on what is and isn’t a crime can change, and our ideas about how such crimes should be treated by law evolve. Child sexual assault is one crime for which the law has evolved and must continue to evolve. The historical case law and the sentences handed down to those who have committed child sexual assault neither reflect the severity of the crimes nor adequately capture the gravity of its impact on society and the extent to which lesser punishment diminishes the respect that society has for the legal system.
At least in Canada, that is.
And so, several years later, when I was in Ottawa appearing before the government’s House Standing Committee on Justice to deliver my view on Graham’s sentencing, my answer was, shall we say, to the point. I am not proud of what I said that day, something that will live forever in the government records. But it need
ed to be said. If Graham’s sentencing represents the best that our legal system has to offer, if it is the best that the courts can do to understand an offender like Graham, then, well:
“Fuck the Manitoba Court of Appeal.”
ELEVEN
RECOVERY
RECOVERY IS A wonderful word. It sounds so bright, so hopeful, so full of a sense of accomplishment and a chance for rebirth after a triumph over seemingly overwhelming odds. Yet anybody who has ever had to try to recover from anything traumatic knows that recovery can be anything but wonderful. It isn’t easy, it isn’t linear, it’s never certain, and things can often become much more difficult before they start to get better.
I thought that things would start to get better for me the moment I became strong enough tell others about what had happened to me. I couldn’t have been more wrong.
We were deep into one of our weekly therapy sessions:
“When you think back about it, what do you remember most, what do you see?”
“I see his eyes, always his eyes. I see my shoes, a blue binder, a field, and stairs. I remember his breath, terrazzo flooring, a ratty beige sling, metal wire, and his breath. I think of carpeting, a hallway, and hockey books. I see orange signs on the bridge to the restaurant, mud, a mess. Cold nights, warm summer ones. I remember never wanting to play hockey again.”
“Anything else?”
“Nothing, you know, nothing important. Can we, look… I don’t know, can we maybe stop now and just talk about something else?”
“Sure, that’s fine. How are you sleeping? Any improvement?”
“A bit, I guess. I had a few nights where I had some real sleep, but it’s still bad. I was able to make it in to work every day, but I’m not getting any deep sleep until the sun starts to come up. When I finally wake up and get in to the office I’m exhausted, my mind is elsewhere, I’m not into it, it’s like I’m not even there.”
“How are the nightmares?”
“Nightmares? Better than before, not as often.”
And by “nightmares,” I meant “thoughts of killing myself.”
I often used the word “nightmares” in therapy because of my more than passing familiarity with the legal obligations I could trigger for my therapist should I be brutally honest about my suicidal thoughts. I did not want to be institutionalized. So, as long as I was comfortable with my ability to manage such thoughts and not act on them, I usually thought it better to just leave them out of our discussion.
“But what I don’t get is how come I have so many nightmares now that I’m finally doing something about all of this. Why aren’t things getting better now that I’m dealing with this? Why are things worse?”
“Well, when you were running from things, hiding from things, were you dealing with the abuse? Or were you doing everything in your power to avoid having to deal with the abuse? Sure, running from it created its own problems, but doesn’t it make sense that it’s harder to confront something than to run from something?”
SO OBVIOUS, BUT so impossible to see while living in the midst of it. Like a drug addict who first has to suffer through the hell of withdrawal before getting clean, I was facing my own living hell while fighting to emerge from the other side. Not only had I finally started to deal with the sexual abuse, I had also become enmeshed in a legal process that ultimately yielded nothing remotely close to justice, a legal process that in the end saw me as nobody.
It was all so overwhelming.
My recovery had started with my night on the bridge. I don’t like thinking about that night, but I thought that night had been my hell. Suicide is tragic. It is incredibly painful for those who are left behind and have to deal with the aftermath. It is to be avoided at all costs. But I wasn’t thinking of taking the easy way out. I was thinking of doing something very hard that would leave the world and those around me much better off. I believed that by killing myself I would be doing everybody a favor.
When I walked along bridges now I would see the fences, the barricades. To me they looked like bars of a jail cell, barriers protecting me from myself but keeping me locked in a solitary confinement of my own creation, my own living prison, my own living hell.
I needed to summon all of my strength to find someplace safe to go to be heard, to be understood, to be helped in my fight against the inner voice telling me that I didn’t deserve to be helped. I needed to choose life over death before I could move forward. Maybe I was just one of the lucky ones who, upon facing death, was fortunate enough to realize that I deserved and could seek out help. All I know is that I didn’t kill myself and that I’m still here.
Yet, having chosen life, I was now worse than ever. Several years removed from the bridge, in the midst of therapy and having come forward and gone through the legal process, I was no longer living a life.
I wasn’t working and was on long-term disability. I dropped out of sight for several years and cut myself off from all my friends. I didn’t know that I was doing that, it just happened as I increasingly saw myself as unworthy because of my depression and PTSD.
Like many others who have suffered mental health issues, I was often antisocial and difficult to be around. I could appear to be selfish and unappreciative, generally receiving a one-way stream of emotional energy directed toward me with nothing coming back from me in return. To like me, to help me, was to take on an obligation that on its surface came with no rewards. It required people to leave their comfort zone, ignore normal social cues, and accept that the normal rules didn’t apply. I was suffering from a disability, and while I was desperately trying to get better, I was not always getting it right.
Recovery was difficult because I could now look back with greater insight. That embarrassed me, because I knew how I had acted back then, how I couldn’t be myself when I was running from myself. Looking back forced me to confront all of that behavior once more. When I saw somebody from my past, I knew, thanks to this greater clarity, that they must have thought I was a dick, a jerk, a loser, because that’s what I could be when I was unable to just be myself, when I was self-sabotaging to make myself less than I was. I knew they had no idea who I really am, because it’s only now that I’m more comfortable being me, that I’m not trying to be somebody else, somebody who wasn’t broken, defective, responsible for it all. So, I couldn’t face people from my past. I skipped reunions. I isolated myself from friends from the past. And it only got worse, because then I worried that they all thought I was just blowing them off and not making an effort, I worried that I was not worthy of their friendship. And by then I just might have been right.
But nothing I did was ever about anybody else but me. My failures, my rejections of invitations, my hibernation—it was all about me. I wanted so badly to be normal, to be able to be with others, but I just couldn’t. I rarely left my house. I spent days in bed. And after spending days in bed, I was too tired to do anything but go back to bed. I was numbed by my medication. I remained a bloated morbidly obese walking corpse.
But I was alive, and I was going to therapy.
Slowly, very slowly, the clouds started to lift. No longer was every day intolerable. Some days I made it outside to my back yard. Other days I celebrated making it to the shower. On a very good day I would get up and take my accumulated garbage to the dump, a task imposed on me as I usually didn’t have the strength to actually get up and take it to the curb for pick-up on garbage day. Princeton graduate, lawyer, international business executive, now celebrating my use of soap and shampoo and dumping the garbage. Clearly my “Best Trash” award from Princeton hadn’t been won lightly.
But I was still alive and I was still going to therapy.
There remains an unwarranted stigma attached to mental health issues as being akin to laziness or lack of effort. Depression and PTSD are both very real and extremely devastating. I would wish neither on anybody. I don’t want anybody’s best friends to be the checkout people they only see when they go to their local grocery store, no matter how nic
e those people may be.
“WAS I JUST unlucky and in the wrong place when a grenade exploded, or was I a target, a victim of a planned hit?”
“What do you mean?”
“Well, was Graham an attacker who lobbed in a grenade and scooped up whatever he could? Or was he an assassin who carefully selected his target while carrying out his mission?”
“Why do you think it matters?”
“If a grenade caused the damage, the abuse would have just been bad luck. If he was an assassin, why me? Did I do anything to cause the abuse?”
Behind my questions were the same fears. I must have done something wrong. I must have invited this. I must be weak. I was stupid not to protect myself. I was stupid to put myself in that position.
The therapy meant I was increasingly able to answer my own questions. I knew that Graham had been a sniper. I just wanted to hear it from somebody else, I wanted to tease out that metaphor and explore its impact on my psyche. I was coming to the realization that the process I was going through bore all the hallmarks of grieving a loss, with all the various stages that entails. I was in the process of grieving the loss of a loved one—except the loved one was me.
SEVERAL OF MY nightmares happen more frequently than others.
I’m in a corporate business tower. I can never see outside the building, as it’s enveloped in a dark gray fog. I’m always trapped inside, unable to get out. The look everywhere is tasteful elegance. I’m the only one in the elevator. Every time the doors open I see a different law school classmate or a lawyer I once worked with. I’m ignored, I don’t fit in, I’m unwelcome. I see others I know, perfectly dressed and smelling of scented sophistication. “Call security. Now!” somebody eventually shouts. And then it’s some variation of the usual tirade. “Stop following me! Stop talking to me! You’re insane! You never worked here. You don’t even have a law degree. You don’t belong here. You need help. How could you ever think you could work here?”
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