Judge seemed to scrutinize female accuser more harshly than the five hockey players who were charged with sexual assault but ultimately walked free

The stunning conclusion to a pivotal sexual assault trial has left some observers in Canada shocked but unsurprised – not only by a judge who seemed to scrutinize the female accuser more harshly than the five ice hockey players who ultimately walked free, but by yet another missed opportunity for a reckoning in the macho culture of a major professional sport.

The blockbuster case seemed to crystallize any number of hot-button topics – the #MeToo movement, the nature of consent, the role of pornography, the impunity of men – in the most Canadian way possible: through hockey.

The trial, which occurred over several weeks in May, saw five members of Canada’s lionized World Juniors team – Michael McLeod, Alex Formenton, Dillon Dubé, Carter Hart and Cal Foote – charged with sexual assault after an incident in a hotel room in London, Ontario, seven years ago.

The complainant, identified as “EM”, who was 20 at the time, alleged that she left a bar with McLeod and had consensual sex with him – but had no idea he then texted other players asking them to join in a “three-way”. In court, EM testified that she was drunk and intimidated by multiple large men entering the room, which she estimated at times to be as many as 11, some of whom were just there to eat and socialize.

EM also said that although she engaged in group sex acts with some of them, they were as part of a “porn star” persona she adopted in order to placate the men in what she felt was a dangerous situation – and did not actually consent to any of the activity.

The men, for their part, have claimed EM was sexually aggressive, begged them for sex and actively consented to all of it. McLeod also recorded two videos of EM after the group encounter had finished, in which she said she had consented to sexual activity. EM testified that while she didn’t remember the videos being filmed, she recalled McLeod “hounding” her to say she consented.

In fact, EM testified over nine grueling days, seven of them under by cross-examination by five separate teams of lawyers, one for each accused. Only one of the men testified.

So when Justice Maria Carroccia told a packed London courtroom last Thursday that she found the complainant to not be “credible nor reliable”, it elicited gasps. As an example of these “issues related to credibility”, the judge said it was “telling” that EM testified she weighed 120 pounds – despite records showing she was 138lb. EM had explained she was just sticking to what she had estimated previously. The judge interpreted it as mendacity.

“The complainant, rather than answering the question truthfully, chose to repeat what she had said previously,” she said.

Carroccia also questioned how drunk EM could have been, as videos did not show “any obvious signs of impairment, such as stumbling” and suggested she “initiated touching” with McLeod at the bar despite having initially said she did not.

In the end, the judge determined that EM fully consented, and was essentially lying in court – a callous take that appeared to scrutinize the female complainant’s claims far more harshly than the five men, according to Daphne Gilbert, a criminal law professor at the University of Ottawa.

“I was extremely disappointed in the decision, and to me, it’s the worst possible outcome for [the woman] and efforts to tackle sexual violence generally,” Gilbert said, noting the judge’s conclusion seemed an extreme one to reach based on EM’s testimony, and appeared to indicate that she considered the complainant to be on trial, rather than the men.

“She didn’t believe the complainant and only focused on what deficiencies she saw in the complainant, and doesn’t speak about the men at all,” said Gilbert.

“I find that astonishing in a case like this,” she said. “She just completely blamed EM, and in doing so, she invoked stereotypes.”

But few stereotypes may ultimately have proved as powerful as the one of Canada’s mainly young, mainly white and mainly male hockey stars being infallible national symbols – a stereotype which the case at first threatened to explode. The entire sordid saga did not emerge into public view at all for many years: police dropped their initial police investigation in 2019 after seeing video that made them think EM was not as drunk as she had stated; EM then sued Hockey Canada in 2022, which conducted its own investigation and settled with her for an undisclosed amount. It was only when the settlement was leaked to the media that a public uproar saw police reopen the investigation, and lay charges in early 2024.

But it also revealed the existence of a secret Hockey Canada fund, which the organization eventually admitted it had specifically created to pay settlements in sexual assault cases against players – apparently lifting the lid off a long-simmering culture of abuse and cover-ups extending far beyond the case at hand.

The furore led to multiple reforms, including mandatory training for athletes and staff on sexual violence and consent. The players themselves were barred from the NHL, though many have since been playing in Russia’s Kontinental Hockey League.

It was a starkly different atmosphere from 2022, and evidence that the trial alone was probably never going to be enough to bring a true reckoning to hockey culture, said Taylor McKee, an assistant professor at Brock University in Ontario who specializes in hockey and masculinity.

He said in order to address a culture of secrecy and lack of boundaries, Hockey Canada needed to turn a “flamethrower” toward the issue. If one person has behaved in a way that is compromising someone else’s safety, including sexual assault, McKee advocates for punishing the entire team.

“That’s the kind of messaging I want to hear from Hockey Canada: a zero tolerance policy,” he said.

But with cars passing the courthouse after the verdict honking in support of the players, and with the union for professional hockey players now advocating for the men’s return, what appears more likely, at least for now, is for the story that threatened to shake the foundations of a sport being forgotten as quickly as possible.

Source: www.theguardian.com