Monday, April 3, 2017

Fraud in the First Degree: BBC’s Undercover, Sexual Assault and the Vitiation of Consent

“Violence against women is as much a matter of equality as it is an offence against human dignity and a violation of human rights.”[1]
- Justice Claire L’Heureux-Dubé


“Sexual assault is…an assault upon human dignity and constitutes a denial of any concept of equality for women.”[2]
- Justice Peter Cory


“It must also be borne in mind that the investigation of crime and the detection of criminals is not a game to be governed by the Marquess of Queensbury rules. The authorities, in dealing with shrewd and often sophisticated criminals, must sometimes of necessity resort to tricks or other forms of deceit and should not through the rule be hampered in their work.”[3]
- Justice Antonio Lamer
___________________________________________________

If a person tells a lie in order to seduce or persuade another into having sex…and it works, should such behaviour amount to a criminal act? If the answer is affirmative, should any lie or series of lies, lead to criminal liability? A recently created BBC television series, Undercover provides a popular culture depiction of when lying may be taken too far.


In the six-episode series, English barrister Maya Cobbina (played by Sophie Okonedo) meets and eventually falls in love with Nick Johnson, an alleged writer and athlete (played by Adrian Lester). It turns out that Johnson is an undercover police officer assigned to spy on Maya and her political/community activities. He too eventually falls in love with Maya and appears to have left the police force for many years. Together, they have three children who grow up to be teenagers. Maya and the children are unaware of Nick’s true identity (for much of the series). After Maya is hired as the Director of Public Prosecutions, she pursues an investigation into the killing of an old friend and community activist (Michael Antwi) while in police custody. At this point, Nick’s former undercover unit handler re-enters his life and coerces Nick to obtain information about Maya’s work and her investigation into Antwi’s death. As the story progresses Maya confronts Nick with her discovery that he has assumed the identity of an individual who died as a child. He confesses. Maya then accuses Nick of stealing her life. In one particularly visceral scene, the following exchange ensues:

Maya:

You raped me.



Nick:

What? No.


Maya:

Yes.


Nick:


No, Maya I...


Maya:

Stop saying my name! You are a rapist! I gave my cons[ent]. I fell in love with someone who isn't you. Who are you?


Undercover was inspired by revelations that actual undercover British police officers pursued long-term relationships with various women, and in some cases had children with them.[4] The objective was to spy on these women and the protest group(s) to which they were members or affiliated. Relationships between the undercover officers and their targets lasted several years. After such relationships became public and there was some outcry, new rules have since been formulated which forbid intimate sexual contact except in extenuating circumstances. A lawsuit was also filed by many of the women, with whom relationships were formed and a settlement was reached in late 2015 that involved both monetary compensation and an apology by the state.[5] As part of the apology, an official for the Metropolitan Police Service stated:

I acknowledge that these relationships were a violation of the women’s human rights, an abuse of police power and caused significant trauma. I unreservedly apologise on behalf of the Metropolitan police service. I am aware that money alone cannot compensate the loss of time, their hurt or the feelings of abuse caused by these relationships.[6]

It does not appear that any police officers were convicted or much less charged with sexual assault in these cases. Drawing from the dialogue above between Maya and Nick, we might ask, should undercover police operations that involve officers sleeping with targets, who are unaware that they are dealing with undercover state agents, be considered criminal? In cases such as these, does the act of misrepresenting one’s identity in such a substantial and fundamental way amount to fraud vitiating consent to sex? Or put another way, should the scope of “fraud”, in the context of sexual assault, be expansive enough to encompass substantial deception by undercover officers that leads to a sexual and intimate relationship with a target?

There is no one simple answer to this given the numerous criminal statutes and jurisdictions around the world. However, given my familiarity with it, I shall draw on Canadian criminal law for some assistance in thinking about these matters. Typically, sexual assault involves an unwanted sexual touching.[7] The Supreme Court of Canada has broken this down into three components – (1) a touching; (2) of a sexual nature; and (3) an absence of consent.[8] The absence of consent is determined from a purely subjective standpoint on the part of the complainant at the time of the touching.[9] Consent relates to the specific sexual act or acts in question.[10] The prosecution must also demonstrate that the accused intended to engage in the touching knowing that the complainant did not give consent or were reckless or willfully blind with respect to consent.[11]

Critical to the scenario posed is the matter of consent.[12] Canadian law recognizes that consent can be vitiated by fraud. Section 265(3)(c) of the Criminal Code provides “no consent is obtained where the complainant submits or does not resist by reason of … fraud.”[13] The Supreme Court of Canada has articulated that there are two components to demonstrating fraud in this context. First, there must be an act of dishonesty – this may include the non-disclosure of important facts.[14] Second, the dishonest act must also result in a deprivation or risk of a deprivation amounting to serious bodily harm.[15] The Supreme Court of Canada originally formulated these elements regarding fraud vitiating consent in R v Cuerrier – a case concerning an accused who failed to reveal information about his HIV status to two complainants prior to having sexual intercourse.[16]

More recently, in R v Hutchinson, the Court applied these elements in a case where the accused agreed to wear condoms when having sex with the complainant but unbeknownst to the latter, the accused intentionally damaged the contraceptives by poking holes in the condom.[17] This resulted in the complainant becoming pregnant.[18] The Hutchinson Court concluded that there was clearly a falsehood – the accused’s failure to disclose that he pokes holes into the condoms thus compromising their contraceptive value.[19] Second, with respect to the element of a deprivation leading to a “significant risk of serious bodily harm”, the Court noted that this did not have to address only harm in the “traditional sense” (whatever this means), it also “includes at least the sorts of profound changes in a woman’s body — changes that may be welcomed or changes that a woman may choose not to accept — resulting from pregnancy.”[20] The Court in Hutchinson asserted that while the Cuerrier Court was addressing the specific risk of sexually transmitted diseases causing the harm in question, this “did not foreclose the possibility that other types of harm may amount to equally serious deprivations and therefore suffice to establish the requirements of fraud under s. 265(3)(c).”[21] The Court stated: “We conclude that where a complainant has chosen not to become pregnant, deceptions that deprive her of the benefit of that choice by making her pregnant, or exposing her to an increased risk of becoming pregnant by removing effective birth control, may constitute a sufficiently serious deprivation for the purposes of fraud vitiating consent under s. 265(3)(c).”[22] More critical to the analysis concerning identity fraud in the undercover police scenario illustrated in Undercover, the Court stated that the following:

This application of “fraud” under s. 265(3)(c) is consistent with Charter values of equality and autonomy, while recognizing that not every deception that induces consent should be criminalized. To establish fraud, the dishonest act must result in a deprivation that is equally serious as the deprivation recognized in Cuerrier and in this case. For example, financial deprivations or mere sadness or stress from being lied to will not be sufficient.[23]

It is worth noting that in Cuerrier, Justice Cory, writing for the majority was concerned that without the requirement of a significant risk of serious bodily harm, an overexpansion of what constituted fraud might criminalize many fraudulent representations, which, however immoral should not be criminalized. Justice Cory hypothesized the following:

Let us assume that [a male accused] lied about his age and consensual sexual act or acts then took place.  The complainant testifies and establishes that her consent would never have been given were it not for this lie and that detriment in the form of mental distress, had been suffered.  Fraud would then be established as a result of the dishonesty and detriment and although there had been no serious risk of significant bodily harm a conviction would ensure.[24]

Justice Cory posited:

The same result would necessarily follow if the man lied as to the position of responsibility held by him in a company; or the level of his salary; or the degree of his wealth; or that he would never look at or consider another sexual partner; or as to the extent of his affection for the other party; or as to his sexual prowess.  The evidence of the complainant would establish that in each case the sexual act took place as a result of the lie and detriment was suffered.  In each case consent would have been obtained by fraud and a conviction would necessarily follow. The lies were immoral and reprehensible but should they result in a conviction for a serious criminal offence? I trust not.  It is no doubt because of this potential trivialization that the former provisions of the Code required the fraud to be related to the nature and quality of the act.[25]

Drawing from these passages from Hutchinson and Cuerrier, one can deduce here that the Court is concerned with over-criminalizing all forms of fraud in connection with sexual intercourse. Yet, I sense that there may be instances of fraud that the Court might be willing to recognize as rising to the level of warranting criminal liability. When one considers the idea of police officers going under such deep cover lasting for numerous years, while pursuing long term relationships and having children (in some cases) with their targets, we are no longer just referring solely to financial deprivations, or mere sadness or stress from having been lied to. We are speaking of types of potentially significant emotional and psychological harm (which in turn has physical manifestations). It is perhaps all of these things and much more simultaneously. When children are added into the mix, it is fair to say that many would not want or choose to have children in such circumstances. The fraud involved deprives them of the autonomy to choose not to have a relationship or bring children into the world under such circumstances. What we have here is not just one or two “small” lies, but a rather comprehensive constellation of intersecting falsehoods. To reiterate a message from the Hutchinson Court, Cuerrier “did not foreclose the possibility that other types of harm may amount to equally serious deprivations….”[26]

Drafters of criminal statutes may not have contemplated such behaviour from police officers and the degree of fraud implicated in these instances. Nevertheless, if, as in the Canadian context, fraud may vitiate consent, courts should adapt their understanding accordingly. Cuerrier addressed the context of fraud in connection with the failure to disclose one’s HIV status. The concept of harm had to be re-examined when dealing with Hutchinson in connection with an unwanted pregnancy. Similarly, should it ever arise, courts should adapt their understanding of fraud where there is a substantial degree of fraud in connection with misrepresenting one’s identity and life history of the kind illustrated in Undercover and more importantly the real life narratives upon which it was based. If the Criminal Code provision protects values founded within the Canadian Charter of Rights and Freedoms such as autonomy (and respect for autonomy is something that is undoubtedly not unique to Canadian law), this should protect targets of police investigations from sexual assault.[27] 

What are your thoughts? Should police officers who engage in this kind of behavior be held criminally liable?


NOTES

1. R v Ewanchuk, [1999] 1 SCR 330 at para 69, 169 DLR (4th) 193, L’Heureux-Dubé, concurring. 

2. R v Osolin, [1993] 4 SCR 595 at 669, 109 DLR (4th) 478, Cory J.

3. Rothman v The Queen, [1981] 1 SCR 640 at 697, 121 DLR (3d) 578, Lamer J, concurring.

4. David Barrett, “Undercover police to be banned from having sexual relationships with targets” The Telegraph (29 October 2013), online: The Telegraph ; Vera Baird, “The sexual behaviour of undercover police fits the definition of rape” The Guardian (28 June 2013), online: The Guardian Unlimited .

5. Rob Evan, “Police apologise to women who had relationships with undercover officers” The Guardian (20 November 2015), online: The Guardian Unlimited .

6. Ibid [emphasis added].

7. Ewanchuk, supra note 1 at para 23.

8. Ibid at para 25.

9. Ibid at para 26.

10. R v Hutchinson, 2014 SCC 19 at paras 54-55, [2014] 1 SCR 346

11. Ewanchuk, supra note 1 at para 23.

12. Hutchinson, supra note 10 at para 67.

13. Criminal Code, RSC 1985, c C46, s 265(3)(c).

14. Hutchinson, supra note 10 at para 67.

15. Ibid.

16. R v Cuerrier, [1998] 2 SCR 371, 162 DLR (4th) 513 [Cuerrier citing to SCR].

17. Hutchinson, supra note 10 at para 2.

18. Ibid.

19. Ibid at para 68.

20. Ibid at para 70.

21. Ibid at para 69.

22. Ibid at para 71.

23. Ibid at para 72 [emphasis added].

24. Cuerrier, supra note 16 at para 134.

25. Ibid at para 135.

26. Hutchinson, supra note 10 at para 69.

27. The damage caused is not solely limited to the matter of sexual assault. As two of the British women who formed relationships with one of the undercover police officers indicated: “These undercover operations have grievously interfered with people’s right to participate in the struggle for social and environmental justice, and to protest without fear of persecution, objectification or interference in their private and family lives. People who stood up for their rights were blacklisted, and the grief of families fighting for justice for their loved ones became the subject of undercover investigations.” Lisa Jones & Kate Wilson, “Relationships with undercover officers wreck lives. The lies must stop” The Guardian (28 July 2015), online: The Guardian Unlimited .

Wednesday, January 18, 2017

The Fallout

Rape. It is a difficult word to write or say, let alone discuss. Regardless the society or culture and despite attempts to prosecute rape at the highest levels – even internationally as a war crime – it is still highly stigmatized.

Victims of all ages and genders are often in positions of shame and fear as a result of the assault they suffer. Popular media tends to address rape and its fallout in terms of families or communities that are unsupportive or even condemnatory of victims. In this dichotomy, the impact of rape on the community highlights the reinforcement of shame and ostracism. And when the victim finds supportive communities – be they families, friends, social workers or law enforcement officers – the focus tends to be on providing immediate assurances to the victims with scant attention to the long-term impacts on the victim or the community.

The BBC series Shetland dealt with rape and its fallout in a very different way, however. As the name suggests, the series is set in the Shetland Islands off the coast of Scotland. It follows the main major crimes unit for the island, headed by Detective Inspector James Perez and including Detective Sergeant Alison MacIntosh (“Tosh”), Detective Constable Sandy Wilson, and Sergeant Billy McCabe. Perez is the highly skilled group leader who is often socially awkward but still quite caring and protective of his teenage daughter, his team, and those impacted by crime. Although raised in the Shetland Islands, he lived in metropolitan Glasgow for many years and experienced the seedy side of life as a police officer there. Sandy is a local officer who appears tough at first but is particularly caring for his community and his family. Billy is at once a blustery older officer with a warm side that is more often expressed in gestures and jokes. And Tosh is a younger officer who is a capable, fun-loving and beloved loved member of the team.

During Season 3, there is a running storyline of a murder investigation that involves a Glasgow mob boss and his henchmen. When the henchmen are unable to convince Perez to back off from his investigation, one of them follows Tosh while she is conducting investigations in Glasgow. Ultimately, an order is given for Tosh to be abducted and raped in order to send Perez a message.

When Tosh is found, she tells the Glasgow officers that she was abducted and left on the edge of the city. Only when Tosh and Perez are alone does she admit that she was raped. The show captures in painful detail the intimate nature of processing for sexual assault. All this time, Perez is behind a curtain talking to Tosh, acting as a father figure and source of comfort for her. Clearly this has an important impact for Tosh but it also has a heavy impact on Perez, who suffers with the knowledge of what has happened.

Tosh insists on returning to work immediately, explaining to Perez that at work she feels normal. However, she also insists that none of her colleagues know what happened to her other than that she was kidnapped. Perez is scrupulous in honouring this request but at the same time is careful to screen her from certain aspects of the ongoing investigation that might be traumatic, particularly when it appears that a rape from years before is at the center of the murder investigation.

Beyond these measures to protect Tosh, the rape takes a personal toll on Perez, who not only wrestles with a certain level with guilt but also with the underlying mentality of men that allows them to commit such acts. This pulls the cover off a level of fallout from rape on the community – how decent and moral men in the community come to terms with the fact that a heinous act was committed by a man. Indeed, as the season progresses this shock and shame at the abilities of other men seems to seep further into Perez’s life and sense of identity at a personal and professional level. Personally, Perez finds himself so disrupted by the sense that men are too often power-seekers in relationships that he nearly ends a budding relationship. Professionally, Perez begins to examine the way in which he – and to a larger extent the male-dominated police force – sees women as officers and also as victims, particularly when they are victims of rape and related crimes.

Perez voices his professional concerns to Sandy in the context of the failure to report the older rape. Sandy at first raises the standard questioning as to why the crime was not reported and is touched when Perez asks him whether the victim (in that instance a former sex worker) would have been taken seriously and handled with dignity. At first Sandy seems to want to protest against this – speaking, one senses, from how he would handle the issue – and then stops to ponder how others in a police department, especially in a tougher metropolitan area, would respond to such a victim. Ultimately, the victim in that case is threatened and comes to Shetland to talk to Perez and Sandy. When she says that she is willing to give a statement about what happened to her, Sandy is tasked with helping her and is deeply affected. Indeed, he starts out by explaining that they will do everything to protect the victim and to make sure that all the necessary reporting is completed no matter how long it takes.

At the very end of the season, Tosh informs Billy that she will be staying with several of her friends for a few weeks. Although not necessary, she then fumbles through explaining that the kidnapping was more than just a kidnapping. Billy’s face goes through stages, from shock to deep sadness to near tears. He struggles to find a response other than to look at her with sad affection and offer her a hug if she is comfortable. She responds that she is not comfortable with anyone touching her and then heads home, leaving Billy to sit down in his office with what seems like the weight of the world on his otherwise reserved shoulders. It is clear that this is a weight which will not soon be lifted and that he is suffering at the idea of the pain caused to such a dear part of his work family.

Shetland does a thorough job of examining the impact of rape on the female victim, particularly where the victim is someone who “should have known better,” in this case because she is a detective. It also portrays a strong victim in the sense that she is eager to return to the aspects of life which give her normalcy even if they are the reason that she was assaulted. Yet it is in the shows portrayal of rape on the community of men who love and respect the victim that it is most noteworthy and unique.

Friday, November 4, 2016

Sweet Lessons

Sweets – many people love them including, admittedly, the author! In addition to their culinary delights, they offer windows into different cultures and societies, in some instances connecting us with the world of several centuries ago. The recent Japanese film Sweet Bean shows how sweets can also be used as a way of bringing together people who would not otherwise have a chance to know each other and also as a site of fighting discrimination.

Sweet Bean tells the story of Sentaro, a man who is haunted by past events in his life, and who runs a small dorayaki shop in Tokyo. Every day, he makes dorayaki – a delicious sweet made of 2 pancakes with a sweet bean paste in the middle – and sells it to a small group of established customers. He does this without passion and without even liking dorayaki in order to pay back a debt he owes. Wakana is one of Sentaro’s regular customers and it is clear that he has become a quasi-father figure to her. We know little of her other than that she lives with her mother, who seems to be uninterested in Wakana, and her bird. Each day, Sentaro lets her stay at the shop, have dorayaki, and sends the rejects home with her so that she can have food. She contemplates not going to high school due to financial issues but Sentaro is convinced that she needs to keep on with her schooling.

One day, an older woman, Tokue, stops into the shop to ask about the posting outside for a part-time worker. Sentaro is very polite to her but refuses, clearly concerned that a woman in her 70s would be hurt while working in the restaurant kitchen, especially as she has hands that he believes are deformed from old age. Tokue returns shortly afterward and leaves him some of her homemade bean paste to try. She leaves before Sentaro can taste it – when he does he is amazed at how delicious it is. Without contact information for Tokue, Sentaro can only wait for her to return and she does. Eventually, they agree that she can work for him and one of her first acts is to scold him for using pre-made bean paste in the dorayaki. She insists that they make the paste together the next morning and shows him the many steps involved in making something so traditional and delicious. In essence, she teaches him to respect each step of the process even if his current customers were content with the state of the old paste. And his old customers – and many new customers – agree!

Success brings attention to the shop and the shop owner drops in one day to tell Sentaro that he must fire Tokue because she heard that Tokue is a leper who lives in one of the last remaining leper institutions in Tokyo. Tokue is not a danger to anyone and cannot infect anyone, yet the stigmas attached to those with leprosy are still strong and the shop owner evinces that when she describes how the streets used to be sprayed down after lepers used them. She reinforces this by using sanitizer on her own hands while in the shop. Sentaro does not want to fire Tokue and tells the owner that he needs more time since Tokue is the reason for the upturn in business. After this, he anguishes over what to do as he sees Tokue thriving and happy working at the shop. Against advice, he encourages her to work in the storefront with him seeking to defy stereotypes and biases.

An unfortunate slip by Wakana to her mother causes people to turn away from the shop while Tokue is there. Tokue seems to understand this by the lack of customers and, when Sentaro tells her to take an afternoon off, she instinctively realizes what is happening. She writes a letter to Sentaro apologizing for not telling him the truth earlier and thanking him for the chance to work and to be a part of society. Wakana insists that she and Sentaro go to visit Tokue at her home in the leper colony. As they make their way, Wakana tries to prepare Sentaro (and, one suspects, herself) for what they might encounter but they are surprised when they find elderly residents who seem to be happy with each other despite some disfigurement and outward manifestations of disease.

When they find Tokue, she tells them the story of how she was brought to the colony as a child after the war by her brother because the family suspected that she had leprosy. Her brother told her that he would likely have to leave her there and her mother made her a special blouse to look her best when she was there – her brother did indeed leave her and the blouse was taken from her, along with everything else, when it was determined that she was ill. She and the others in the colony lived in the spatial confines allotted to them from that point onward. They were able to marry, as Tokue did, however they were not allowed to have children and if a woman became pregnant she was forced to have an abortion, as was also the case with Tokue. In the middle of this story of sadness, Tokue becomes happy when speaking of the joy that working for Sentaro gave her because she was included as society and able to interact with people in society without stigma. This brings Sentaro to tears because he feels at fault for taking away the joy she had but Tokue assures him that this is not the case.

Sentaro hires Wakana in Tokue’s place and all seems to be well until the shop’s owner announces plans that will change the shop dramatically. Around this point, Sentaro and Wakana go to visit Tokue again and learn that she just died. They are devastated at the news but find a letter waiting for them telling them not to be sad because of the happinesss they gave her. They also find that she has left her tools for making bean paste to Sentaro, who is seen using them at the end of the film to make dorayaki from a stand in a park rather than remaining at the shop. In this final way, Tokue allows Sentaro freedom just as he allowed her freedom.

Sweet Bean is a poignant story of personal relationships that is also a testament to the ability of stigmas to continue years after the basis for their claims have been proven untrue. It demonstrates how lingering discriminations can come to the forefront based on whispers and shows how devastating they can be. At the same time, the film demonstrates how important it is for those with disabilities and those who have been targets of discrimination to be treated as members of society. Sweet Bean also shows the value that these individuals have to society and how much society hurts itself by discriminating against those with disabilities and those who have been stigmatized.

Thursday, October 27, 2016

Life Society

In many ways, life is a series of transformation and personal growth – we see this in ourselves, in others, in laws, and in changing forms of society and culture. However, it is not often that a film is able to demonstrate these changes and their transforming power over a relatively short time span. Café Society, the most recent film by Woody Allen, is able to encapsulate these transformations over the course of a few short but vital years in the lives of the main character.

Set in the 1930s, the film begins with Bobby Dorfman, an eager young man from New York City who finds himself in an increasingly suffocating home, with two bickering parents, an opinionated older sister who is stuck in an unhappy marriage, a lecturing brother-in-law, and a gangster older brother. Wanting to experience the world for himself, Bobby travels to Hollywood and seeks out his successful film agency head uncle Phil Stern. Phil is a quintessential Hollywood executive, constantly working and engaging in social activities with the goal of creating more business opportunities. In essence, his life is a combination of working within self-serving relationships while also redefining himself to meet the image he feels he must portray in order to continue advancing in the industry.

Phil puts Bobby off for a while and eventually takes him on as an errand boy. He also arranges for his secretary, Vonnie, to show Bobby the town. With a new friend and a new job, Bobby begins to thrive, although he finds himself falling in love with Vonnie, who at the time has an unnamed love interest. However, when this relationship ends, Bobby and Vonnie became an item and Bobby – ever the New Yorker – makes plans for them to marry and move to Manhattan. By the time Bobby suggests this to Vonnie the audience already sees that, despite his inherent naiveté, Bobby has moved through important stages of life and is able to figure out a path to some success in Hollywood although he does not plan to pursue it.

Sadly for Bobby, Vonnie’s boyfriend was none other than Phil, and she decides to return to him and follow the path of the glamorous – yet seemingly fake – Hollywood wife. With his heart broken, Bobby returns to his parents’ home in New York. He goes through a variety of jobs without finding something fulfilling to hold his attention. In many ways, it is as if he has regressed to the pre-Hollywood Bobby, although with a harder and more jaded heart.

Finally, Bobby takes up an offer from his gangster brother Benny and joins him in operating a nightclub, Café Society, that eventually becomes the toast of the town. In a short time, Bobby grows into an adult who is capable of charming wealthy and influential patrons and balancing Benny’s less savory traits. He brings the experiences he gained while in Hollywood to Café Society and makes creates an image that goes beyond the naïvete he usually displays.

One night, Bobby meets Veronica, a high society divorcee who he instantly falls in love with. They share a whirlwind romance that culminates in marriage and the birth of a child. In many ways, Bobby seems to have come of age as a family man and as a businessman once Benny receives the death penalty for murder. Although Benny’s trial is quite visible, the aura surrounding it only added into the mystique of Café Society and business continues to grow just as Bobby does.

And then one night Vonnie and Phil walk into Café Society. All at once, adult Bobby seems to fade into the background and the young Bobby who moved to Hollywood re-emerged, complete with the vulnerabilities he tried to leave behind. At first he tries to hide from the spectre of his past but eventually Vonnie catches up to him and suggests that they get together to chat, with no expectation other than that. Over the course of several days, they tour the city and relive old times but at the same time highlight the ways in which each person has changed.

Vonnie has grown into the woman she claimed she never wanted to be – the wealthy but fake socialite who fills her time with meaningless stories and friends who flock to her because of her standing. Society views her differently than when she was a secretary however in her deepest heart she is unsatisfied and wonders what could have been if she stayed with Bobby. At the same time, Bobby has become hugely successful and has everything he thought he could want – a beautiful and loving wife, a growing family, and people who respect him. Society certainly views him in a different light than when he was an errand boy for Phil. In his heart, he feels the pain of his first love leaving him and yet is aware that the life he lives is likely more than he could have achieved if he and Vonnie stayed together.

Overall, Café Society takes the audience on a short yet intense journey through the lives of two young people who are trying to define what and who they are and demonstrates how the courses of lives differ from those planned. The film also notes how the people grow with and within society just as society can grow with and around them.

Thursday, October 20, 2016

Songs of Society

As noted in a previous post, music provides the sounds of life for many of us. For the listener, music has the ability to transport to another place or experience and can also provide a frame for events and times. The listener might be passively engaged but is still engaged. For the artist, however, music is obviously more personal. It is a reflection of the artist’s personality, experiences, emotions, travels, and society. In many ways, music transcends the individual artist – or even a group of artists – and creates an image of his/her society. The documentary film Song of Lahore provides an example of the ways in which this occurs and the impact this has on the artist and society. It also presents insights into how different artists and musical genres can come together to craft music that is truly reflective of a global art form.

Song of Lahore tells the story of the Sachal Jazz Ensemble, a group of musicians playing traditional Pakistani instruments for not only traditional music but also songs from other genres. In particular, the group performed a rendition of the jazz classic Take Five using traditional instruments that garnered attention around the world through social media. Eventually, this performance came to the attention of Wynton Marsalis, who extended an invitation to the group to come to New York City and join the Jazz at Lincoln Center Orchestra in a performance at the famed Lincoln Center venue.

The film presents the stories of several key members of the group and explores how music has shaped their families and their lives. Through these presentations, it becomes clear that music has been a constant source of pride, identity and struggle for these talented artists and for Pakistani society in general. The film notes the prior existence of a booming musical industry in Pakistan and its destruction at the hands of changes in government and social mores regarding the appropriateness of music generally. This has a devastating impact on society in terms of cultural expression and enjoyment. It has a more personally devastating impact on individual artists, such as those in the Sachal Jazz Ensemble, who saw their craft, livelihoods and family traditions swept away as a result.

Persecution for musical performances created an environment in which many artists stopped performing and others performed in secret, constantly aware of the risks to their safety. While the political and social climate may have eased somewhat in terms of its restrictions on music and musical performances, the film documents the ways in which musicians are still subject to societal ridicule and threat. For example, one of the performers notes that his grandson was targeted for violence while walking through the street carrying a musical instrument.

News of the invitation to New York City is viewed as a fantastic opportunity for the Sachal Jazz Ensemble, although the leaders are aware that they must be perfect in their performances. They begin a strict practice regimen that is not well received by some and, along the way, there are decisions to drop members from the traveling group. This is not an easy decision but it is one made in order to allow the Sachal Jazz Ensemble to perform at its best for its members and as a representative of Pakistan. Throughout the practices and once the group arrives in New York City there is a sense that the performance is about far more than just highlighting an individual group.

On arriving in New York City, the group takes the opportunity to enjoy the major tourist sites before settling down to a grueling practice schedule with Wynton Marsalis and the Jazz at Lincoln Center Orchestra. This is necessary to coordinate the performance of Take Five, which is performed by musicians from both groups. Coordination of this particular aspect of the performance is quite difficult and results in many artistic changes and disagreements, demonstrating differences in style and expectations within the groups and between the groups.

There is perhaps no better microcosm of cultural blending and the problems faced when completing it. And yet, completed it is, and with remarkable harmony and grace. The performance is an overwhelming success, hailed by critics and audiences as well as by members of the groups themselves.  

Overall, Song of Lahore presents the many different layers of meaning held by music. It offers a glimpse into a society in that has devalued music and artists but in which a core group of artists has maintained an attachment to and love of its art form. It also allows an understanding of how music can serve as a cultural bridge between different societies, allowing artists to speak the same language and audiences to hear the same passion in music regardless their nationality or location.

Sunday, October 2, 2016

Legitimizing False Confessions In Popular Culture - A Look at Law and Order: Special Victims Unit and the Depravity Standard.

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It seems like every few weeks (or perhaps less) we are informed through news media of a fresh new instance of someone who has been released on account of a wrongful conviction. There is indeed a necessity to be aware of the various possible causes of wrongful convictions – preferably before such occurrences transpire. Not everyone reads news articles, and fewer still have the time or inclination to peruse through scholarly literature or actual jurisprudence. Enter film, television and other mediums of popular culture.

Mediums of popular culture are excellent teaching tools to highlight and make visible (potential) miscarriages of justice and wrongful convictions, in addition to their possible causes. There have been a number of commercial and documentary films that exhibit narratives concerning wrongful convictions (e.g. In The Name of The Father) and the use of questionable police techniques such as “Mr. Big” sting operations (see Mr. Big: A Documentary).

Why look to narratives told through moving images? At a basic level, they serve as accessible means to understand or acquire information about important phenomena. As scholars, Charles Ogletree Jr. and Austin Sarat (2015, p.4) have articulated: “Mass-mediated images are as powerful, pervasive, and important as are other early twenty-first century social forces – including globalization neocolonialism, and human rights – in shaping and transforming political and legal life.”

Film and television shows are useful tools for depicting legal events. However, as Ogletree and Sarat (2015, p. 5) further posit, they “are not just mirrors in which we see legal and social realities reflected in some more or less distorted way.” Rather, they argue (2015, p.5), such visual mediums “project alternative realities that are made different by their invention and by the editing and framing on which the moving image depends.”

With Wrongful Convictions Day upon us, I thought I would use this blawg post to discuss a particular television episode that connects to the theme of wrongful convictions and specifically how particular police techniques may give rise to them.

One of the various possible instances in which a wrongful conviction may occur is through coercive interrogations and the production of a false confession. An episode of Law and Order: Special Victims Unit (SVU) entitled the "Depravity Standard" (Season 17, Episode 9) illustrates this and other associated problems (presently available on Netflix). SVU is a fictional television show highlighting the work of police officers and prosecuting attorneys as they investigate and prosecute, respectively, sex-related crimes.  



The episode, in particular, features the attempted prosecution of  Lewis Hodda (played by Tom Sizemore), for the kidnapping of two children, one of whom he supposedly murdered. In pursuing the accused with respect to the murdered child, there is no direct evidence. The main evidence to be used is a confession procured by Lieutenant Olivia Benson (the lead character of the show who is played by Mariska Hargitay). As the episode unfolds, we learn that Olivia uses lies and veiled threats to get the accused to incriminate himself. Despite the presence of such techniques, Olivia seeks to insistently project the notion that the confession is inherently voluntary and provides a legitimate basis upon which to convict.
  
During the trial, Olivia takes the stand to testify on behalf of the prosecution regarding the confession that she secured. After Hodda's videotaped confession is played in court, the assistant district attorney, Rafael Barba (played by Raúl Esparza) asks Olivia if she was present during the confession. Olivia states that the confession was voluntary and Hodda had been informed of his rights (thus establishing that the procedural norms situated within the Miranda warning were adhered to). Barba later inquires from Olivia whether any coercion, physical violence or threats were used. Olivia states, unequivocally: "Absolutely not."

Olivia is then cross-examined by Hodda's counsel, Lisa Hassler (played by Robin Weigert). After some initial questioning, the following dialogue ensues.

Hassler: Finally, you had Lewis Hodda in your interrogation room.

Olivia: Yes, where he confessed to murdering a seven-year old boy. It's on the video.

Hassler: I am much more interested in what is not on the video. So, you interrogated Lewis Hodda for over six hours before turning on a camera. During all that time, you didn't coerce him? You didn't threaten him?

Olivia: No, I followed police procedure. 

Hassler: Did you tell him that witnesses had seen him with other children who had been murdered? 

Olivia: I may have. 

Hassler: Was it true?

Olivia: Um, the Supreme Court has ruled that police are allowed to make misrepresentations. 

Hassler: By misrepresentations, you mean lies?

Olivia: Basically, yes. 

Hassler: So, after lying to him about these nonexistent witnesses, didn't you tell him, and I quote [Hassler reads from a document]: "Nobody likes a "chomo" in state prison"?

Olivia: Yes, but it was a matter of urgency. The defendant had another child. 

Hassler: Your Honor, please instruct the witness to answer the question only. 

Judge: Lieutenant, you are flirting with causing a mistrial. The jury will disregard. 

Hassler: What is a “chomo”, Lieutenant?

Olivia: It's a child molester. 

Hassler: And ‘chomos’, or child molesters -- are themselves -- frequently assaulted in prison, are they not?
...

Olivia: Yes, they are. 

Hassler: So, you lied about having the evidence that would send him to prison and you threatened to label him a 'chomo' when he got there. 

Olivia: We had good reason to believe that he was a child molester. 

Hassler: And you promised to advertise that belief to insure he would be assaulted when he got to prison. Then, and only then, did he confess. 

Olivia: He confessed because he was guilty.

SVU’s main protagonists are police officers and prosecuting lawyers with supporting roles played by victims of crime. Their main adversaries are the designated criminals and their counsel. Pitted against such enemies, the resort to such sharp practices projects an aura of justification. The ends justify the means. 

That which emerges from the scene is the manner in which lying becomes or is presented as normalized. I am not solely referring to Olivia’s (or her real-world counterparts’) flagrant lying during interrogations (which is perfectly legal). Rather, it is also the lies that some officers may tell themselves and the court under oath to secure a conviction. In the scene, Olivia avowedly asserts that the confession is voluntary despite threatening to reveal Hodda’s status as a “chomo” to other inmates and thus placing him in a vulnerable position.  

A further problematic aspect of the narrative is the use of the video-recording as purportedly solid and persuasive evidence of guilt. Guilt springs forth not merely from the word of a law enforcement official testifying but more importantly from the accused’s own lips as captured on video – and thus the video doesn’t lie. What is of course problematic is that the video does not reveal all the things that were said to Hodda prior to his final confession. As some jurisprudence suggests, while a video-recording is not required, courts may find it highly suspect that an interrogation is only partially recorded (especially where recording equipment is available) (see e.g. R. v. Moore-McFarlane).

There is an added aspect to the video-recording that does not get addressed specifically in the episode which is also telling. While a video-recording is a helpful tool to hear and see what has transpired during an interrogation, how that recording is effected can have a substantial impact on how the viewer perceives it. Though we hear Olivia’s voice, the image in the video-recording focuses solely on Hodda and it is a close-up. This is not insignificant. Psychologist Daniel Lassiter conducted a series of experiments several years ago with mock juries using video-camera footage of an interrogation from two vantage points – one camera was focused solely on the accused and the other captured both the accused and the interrogators (See Mnookin, 2014). As Professor Jennifer Mnookin writes (in connection with Lassiter’s experiments): “When the interrogator isn’t shown on camera, jurors are significantly less likely to find an interrogation coercive, and more likely to believe in the truth and accuracy of the confession that they hear — even when the interrogator explicitly threatens the defendant.”

After the prosecution and defense rest their cases, the jury is left to deliberate. As the episode unfolds, we learn that the jury cannot come to an agreement on the verdict – specifically, one (or possibly more jurors) is having doubts about the confession and Hodda’s guilt. The case ends in a mistrial and thus no conviction is secured based on the confession offered.

One gets the sense that the show is intended to have viewers lament this result. After the trial, two jurors approach the mother of the murdered child to tell her that most of the jury members believed Hodda to be guilty. The juror who refused to convict was portrayed as being anti-police and uncooperative. What this suggests of course is that notwithstanding the problems with the confession and the lack of reliability surrounding it, the proper result was Hodda’s conviction. The failure to convict is attributed to a juror with a generalized anti-police bent. In addition, Hodda’s lawyer, we are told, is the daughter of a famous (fictional) trial lawyer who was still seeking the approval of her father - eleven years after his passing. The show constructs those who show support for Hodda (or question the methods used) as being suspect and motivated by less than legitimate concerns. 

That SVU travels down this road – e.g. vis-à-vis how it legitimizes improper interrogation techniques – is far from surprising. It is after all a show that is largely police-officer and prosecution friendly. As Dr. Adam Shniderman (2014, p.100) has written, SVU’s model of justice (like other Law and Order franchises) is one which focuses on speed, efficiency, and order-maintenance rather than the rights of suspects and accused who are presumably guilty. Shniderman (p.126) argues that conduct by SVU detectives on the show typically abuses defendants’ rights and are sometimes later vindicated at trial. However, and this is worth noting, he observes (p.126) that the tactics on display on SVU with respect to police interrogations also have led to false confessions in the real world. 

While it may be unclear as to what extent films and television shows influence viewers (and prospective jurors), studies suggest that the influence is real. Whether taken on its own, or as part of a pattern of legitimated conduct, the SVU episode discussed here problematically validates questionable police tactics and primes its viewers to find such methods defensible and necessary. Given the willingness of real world juries to convict when they hear a confession, projecting interrogation methods involving threats of violence is questionable. It fosters, at least among some members of the public, the notion that such means are acceptable.   

I end with two quotes by the United States Supreme Court in the 1991 case Arizona v Fulminante (p.296) which concerned a coerced confession. The quotes speak to the power of confessions at trial.  

A confession is like no other evidence. Indeed, the defendant's own confession is probably the most probative and damaging evidence that can be admitted against him. . . . [T]he admissions of a defendant come from the actor himself, the most knowledgeable and unimpeachable source of information about his past conduct. Certainly, confessions have profound impact on the jury, so much so that we may justifiably doubt its ability to put them out of mind even if told to do so.
 ...
In the case of a coerced confession...the risk that the confession is unreliable, coupled with the profound impact that the confession has upon the jury, requires a reviewing court to exercise extreme caution before determining that the admission of the confession at trial was harmless.

Sources

Arizona v Fulminante, 499 US 279 (1991). 

Jennifer L Mnookin, “Can a Jury Believe What It Sees? Videotaped Confessions Can Be Misleading” New York Times (13 July 2014), online:

Charles Ogletree Jr. & Austin Sarat, “Imaging Punishment: An Introduction” in Charles Ogletree Jr. & Austin Sarat, eds, Punishment in Popular Culture (New York: NYU Press, 2015) at 1-21.

R v Moore-McFarlane, (2001), 56 OR (3d) 737, 160 CCC (3d) 493 (ONCA).

Adam B Shniderman, “Ripped from the Headlines: Juror Perceptions in the Law & Order Era” (2014) 38 Law & Psych Rev 97.

Friday, September 30, 2016

Sounds of Society

Music – for many of us it plays an important role in our lives. We play it for festivities and for funerals. We find lyrics we can relate to and that speak to some of our innermost experiences and feelings. Years later, hearing a song can be extremely evocative of events, places, or people. Although it is created and performed by an artist or group of artists, we hear it and it becomes part of our lives and, in some cases, part of society. And yet what of the artists who give us this gift? How do they create a society that allows them to perform and express themselves?

Two recent films answer this question by chronicling different artists and musical genres. This Jurisculture post will discuss one film, Maestro, and the following post will discuss the other film, Song of Lahore. Maestro tells the story of master orchestra conductor Paavo Jarvi and, in the process, tells the story of orchestral society as a whole. Throughout the film, Maestro explores Jarvi’s personal history as the son of a world-renowned conductor from Estonia, who spent much of his youth in the Soviet Union due to his father’s work. As a child, Jarvi explains that he grew up listening to music and benefitted from the lessons his father gave to the family on music and on its importance in life and society.

This was emphasized to a younger Jarvi when his father refused to stop performing a song that the Soviet regime deemed subversive and was punished with quasi exile as a result. Despite this, his father continued to support such music and both he and young Jarvi understood the power of the music they performed as a source of motivation and support for social movements. Indeed, as was later demonstrated in Estonia’s “Singing Revolution” in which it broke free of Soviet control, music has the ability to reach across a number of social groups and create another society based on its lessons.

Following Jarvi’s path to the US after fleeing Soviet control, the film chronicles the rise of Jarvi as a young and talented conductor. It explores the Curtis Institute of Music, an elite school for highly talented musical artists, where another type of society is formed, this one of artists who have given their young lives to their art and to perfecting it. They create a common bond of dedication and love of music and their art in a way that might be difficult for the outside world to understand but that provides them with a sense of belonging and place. This, in turn, allows them to push themselves and to excel in order to create the music that comes to have such special meaning to society and to individuals the world over.

The idea of the experience of professional musicians as forming a society unto itself is further highlighted in Jarvi’s experience as the Artistic Director at the Deutsche Kammerphilharmonie Bremen. Unlike other orchestras, in which the musicians are employees, at Bremen the musicians who comprise the orchestra are the owners. This increases the sense of investment and attachment that the musicians have at the same time that it increases the pressure on them to perform at their best and to bring in funding on a consistent basis. It is both a benefit and a burden on the musicians – and particularly on Jarvi as the leader of the orchestra. In this way, the Deutsche Kammerphilharmonie Bremen serves as a microcosm of the realities faced by individuals and society – each must perform at its best in order to succeed and also to survive. In doing this, a close-knit family unit is formed, with musicians and staff members who could receive somewhat better benefits elsewhere staying with a group of people who love and support them.

At the same time, the struggle to balance the reality of this world with the reality of a personal world is demonstrated by Jarvi’s own need to balance his professional world with his commitment to his two young daughters. Throughout the film, Jarvi discusses this in terms of the sacrifices he has made for his career and, as his children begin to grow up, the professional sacrifices he is willing to make so that he can be an involved part of their lives.

In Maestro, the audience experiences more than the story of music and the enjoyment of hearing beautiful performances by leading artists in the world. The film exposes the reality of the music that is enjoyed by millions across the world, from the study needed to become an elite musician to the way that a world-class orchestra functions to the struggle involved in balancing the personal and professional lives of musicians. By exposing these struggles, Maestro highlights the ways in which classical music, a genre that some view as out-dated, in fact reflects the realties and struggles of modern society in the lives of the musicians who perform it as much as in the emotions it conveys and evokes.

Maestro brings to light the many forms of society that form around music and why those societies are necessary in order to create music that reaches listeners across the world. Maestro further highlights the role that audiences have in creating yet another society, one in which music is a unifying theme in itself and can act as a facilitator for other movements.