Christie Blatchford

Jane Doe can't have it both ways

One such comes to mind from yesterday, when police lawyer Bryan Finlay began his cross-examination by asking Jane to interrupt and tell him to stop if at any point he was being unfair, and Jane without missing a beat, grinned and said," I don't suppose we can stop here?"

But there have been more occasions, many more of these, when I have longed to give the tiny woman in the witness box a good swift kick in the pants and tell her that she can't be both victim and aggressor, that she can't be the "urban adult" she calls herself and at the same time talk in a baby voice that barely rises above an actor's whisper, and that she simply cannot have it both ways.

The sequence from yesterday which captures this is when Jane tried to take Finlay up on his offer.

Before the lunch break, he had been leading her through a book of newspaper clippings about various and sundry sexual assaults from the summer of 1986, this with the intention of showing Madame Justice Jean MacFarland that though Jane didn't get the specific warning she wanted from the police that a rapist was at work in her Wellesley St. E.-Church St. neighborhood and that her life might be in danger, she was, nonetheless, an exceptionally well-informed plugged-in woman indeed.

Finlay's questions had been by any measure reasonable and inoffence. He would first identify the clipping by date and newspaper, read aloud the headline and perhaps a few pertinent details ( if for instance, the story mentioned what part of town the attack occurred, or if the rapist had entered by a balcony) and then asked Jane if she remembered reading that particular story. It had seemed to go smoothly.

But after the lunch recess, with Finlay about to pick up where he'd left off, Jane made a little speech. "I was going to ask if you could not go into the details, maybe just the headlines," she said. The "graphic detail" of the newspaper stories, she said, "I find it upsetting."

Cry me a river, honey, I thought: This is your lawsuit; you have driven it for 11 years; this man has been entirely respectful of your pain and suffering, and now you're asking him not to read the bare-bones, the where and when, of other attacks which preceded yours, knowledge of which arguably may have left you on high alert?

The entire case has a similar passive-aggressive feel.

Jane, for instance, was by her own admission before she was raped on Aug. 24, 1986, a feminist who believed that the world is sexist and who was "sadly aware" that to be a woman was to be vulnerable and who lived her life accordingly, even to the point where she tried to establish routines (so that people on her regular routes would see her and presumably keep a neighborly eye out for her) which she would then periodically change (in case any man was watching), who didn't go out alone at night if possible, and who, that summer, was at a minimum, aware that there was a serial rapist working the Bloor Yonge Sts. area and that women were up in arms about it and had called a number of meetings on the issue.

As she said to Finlay in one spirited exchange, "I think a large part of the concerns (of women) was that warnings weren't being issued and the police weren't responding adequately." At another point, she snapped, "I was aware that women felt inadequate attention was being paid (to the rapes by the force) and that women were taken action to alert women about it."

It seems arguable, at the very least, that before her attack, she may have had an axe to grind with the police; it seems clear to me that Finlay may at some point argue her lawsuit is less the product of a woman let down by her police force, as she alleges, and more the result of an activist burning to score political points -- that in other words, to put it crassly, from the police point of view, the wrong woman was raped.

None of this has anything to do with the assault, which was hideous and devastating to Jane, and which she has handled with courage. None of this is to suggest that by leaving open a window the night it happened, by not using the bolts on her balcony door, she was inviting an attack. But I cannot reconcile the two pictures -- the one of a woman so fearful, so aware of the pervasive male threat (which I do not share) that she was actually conscious of changing her daily routine from time to time, the other of a woman who, as I have done, as my friends have done, left open a window on a hot August night, in some small portion of her head weighing the risks, whatever they were, and saying, "Ah, screw it, I'll take the breeze."

Jane Doe is not responsible for her rape. As she said yesterday, the rapist is. When she launched her case, she believed that "the social realities that allowed him to rape me still existed, where still prevalent." It takes a tough nut to wonder if an open window might be deemed among those "social realities." But then Jane is suing, as she said herself, in part because she was "looking for ways to act on what I knew and for the justice I needed to heal myself." When you ask that of the system, you also must be able to look into your own heart and ask the hard question.