She said, he said: Parts 5 and 6
Reporting on a rape trial that never made headlines
Dear readers,
Here are the fifth and sixth installments of She said, he said, a series originally published in 2015. I’m reissuing it to give you a taste of the type of reporting you can expect from this new Courthouse Stories newsletter.
In case you missed them or haven’t yet had time to catch up, here again are Parts 1 and 2 of She said, he said, and Parts 3 and 4.
If you’ve enjoyed She said, he said, please feel free to pass it on to friends and to share the series on social media.
AnnB
Part 5: He said
December 2014
Until now, Matthew has been an inscrutable presence, showing little or no reaction as he’s been accused of rape by Ava and trashed by her mother. Meanwhile, his own mother has sat through every public moment of this trial while his grandmother has attended all but one day.
On the morning of the fifth day, he finally takes the stand to tell his side of the story. Gary Stortini gets things underway by telling the court a bit about Matthew’s family. His mother is a civil servant; his father (who has also been present every day, but must remain outside the courtroom, as he may be called as a witness) is a blue collar worker. Matthew has an older and a younger brother, who both live at home; his full scholarship to a small US college covers his tuition and room and board.
Matthew is tense for Stortini’s first few questions, but he quickly relaxes. He is soft spoken, perhaps even sweet: not what I expected after viewing his Facebook cover shot, which shows him and three friends puffing on cigars in their prep school blazers, ties, baseball caps, and sunglasses. Stortini portrays him sympathetically — noting, for example, that Matthew has an upcoming appointment with a medical specialist for a congenital kidney ailment.
After the brief introduction, Matthew’s lawyer moves on to the history of his client’s relationship with the complainant. The she said, he said nature of this story is once again drummed home.
Matthew says he and Ava had sex on the day they met, which she denies completely. Matthew says this took place in the parking lot of a school near her house. Ava says the first time they went there together was the night of her alleged assault. He says she left her panties in his car after a consensual encounter in another parking lot. She says he took them from her bedroom.
“How did you come to have possession of her panties?” asks Stortini, in a juxtaposition of legalese and lingerie that strikes me as absurd.
“She left them behind after the incident on the tenth, so I hid them in my sports bag.”
“Where did you find them?”
“In back, on the floor behind the driver’s seat, when I got home and parked the car.”
“She said she gave them to you when you were in her bedroom. That didn’t happen?”
“No, it did not.”
“Did you have a shirt of hers?”
“No.”
“Did she have a shirt of yours?”
“Yes . . . it was in the back of the car. She put that on after we were done.”
“Did you ever ask for it back?”
“No.”
“Did you expect to get it back?”
“Eventually, but . . .” He trails off.
Stortini arrives at the night of the alleged assault.
“Did you have sexual intercourse with [Ava]?”
“Yes.”
“How?”
“I was seated. She was straddling on top.”
“When the intercourse was done, sir, did you leave the school?”
Once again, the use of courtroom language to describe teenage sexual encounters seems jarringly incongruous. I want to laugh, but there’s nothing remotely funny about the big picture of this case. Taking notes in the audience, I often feel more like a voyeur or a pornographer than a reporter. And this is despite the fact that most of the details of this couple’s sexual history have been ruled inadmissible for the purpose of this trial, in accordance with the country’s rape-shield laws.
At one point, when Matthew’s description threatens to become too graphic, Justice Gary Trotter warns him off. The whole situation is all the more bizarre when I consider that the accused is describing — in highly realistic detail — encounters that the complainant swore never took place. Though they’ve both taken an oath to tell the truth, their accounts are fundamentally incompatible.
It is a relief from the awkwardness when Stortini moves on to the couple’s break-up, which occurred after Matthew left for a big sports tournament in the US.
“Did you contact her during that weekend?” Stortini asks.
“Very little. I kind of tuned her out just to focus on [playing].”
Matthew says he didn’t keep his phone close at hand, and only responded sporadically to Ava’s texts. When he did, he kept it brief, sending messages like, “Everything fine, still playing, going into next game, talk to you later.”
Once back home in Toronto, Matthew says, he made no effort to contact Ava.
“Why weren’t you seeing her?” asks Stortini.
“I felt like she was becoming too much for me to handle. She wanted to be serious and have a long-term relationship. I didn’t want to get serious and miss her if I was going back to school.”
He says he told Ava his school was unlike university. He had classes on Saturday mornings, and visitors weren’t allowed in the dorms. Stortini asks how she reacted.
“Not well. She came across as being frustrated with me, and angry.”
“Did it bother you in any way?”
“Not really.”
Despite all this, Matthew says the two continued occasional BBM-ing. She invited him to her birthday.
“I told her I’ll try to make it.”
“Did you intend to go?”
“No.”
“Why didn’t you tell her?”
“If I just told her no, it would have ended ugly. I was just trying to be subtle about it. Go our separate ways.”
After he failed to show up at her birthday, Ava messaged him.
“She said she never wanted to see me again or talk to me. We were done. I said, ‘Okay.’”
The next time the two saw each other was the night of the alleged assault. Ava has said from day one that she was forcibly confined in Matthew’s car, and raped in his passenger seat. He says they had consensual sex in the driver’s seat: she was on top, and stopped talking to him after he climaxed and told her, “I’m done.”
According to Matthew, this was one of many mood swings she had exhibited over the hour and a half they were together, during which she repeatedly called him an asshole and lambasted him for missing her birthday party.
“I said, ‘Yes, I know I was an asshole. I’m sorry,’” Matthew tells Stortini. “She’d say, ‘You’re a great guy but you have no time for anyone. Your life is just sports.’”
The conversation kept going in circles, the defendant recalls. At one point, he even checked his Facebook and Twitter messages, which is confirmed by the data usage on his phone bill.
“Throughout the conversation, she would put her hand on my right knee and leave it there. When she got angry she’d pull it back, separate herself.”
“Were you trying to be affectionate, touch her, put your hands on her?”
“No.”
Matthew says he finally asked, “If I’m such an asshole, why would you call me first to pick you up? She responded, ‘Because you’re hot.’ She reached over to kiss me. Then she came on to my side of car. She pushed herself over the console, sat on my lap. She put her arms around my neck and I had my arms around her waist. We began to kiss. Not even a minute into kissing, she stopped, looked at me, went back to her side.”
“Why did you kiss her back?”
“She kissed me, so I kissed her. I liked her, but I didn’t want kind of to be with her.”
Stortini asks Matthew if he tried to stop Ava from leaving the car.
“No.”
“Did she say anything?”
“That she was going to go home. I said, ‘I’ll drive you home.’ She said, ‘No, I’m going to walk.’”
“You would allow her to walk home? How far was it?”
“A minute’s walk. She got out, walked in front. I started the car and began to pull away, began to drive out of the parking lot. She turned around and said, ‘Fuck it, it’s summer.’
“I kind of felt like she wanted to come back in the car and hook up. She got back in, I reversed back, she took off her pants and crawled over to my side. I kind of lifted her and guided her.”
Stortini asks: “Had you ever had sex on [the] driver’s side of [your] car?”
“No.”
“Was she angry during intercourse?”
“No.”
After sex, Matthew says, Ava said, “Seriously, that’s all?” and got mad at him again. He turned the car on. “We started to drive home. She was not responding to any of my questions. ‘Are you okay? Did I do anything wrong?’ I just thought something must have happened.”
“Was she looking at you?”
“No, she was looking out past the window, almost leaning on the door. . . . Once I stopped, she was out of the car.”
“How long did you stay in front of the house?”
“A couple of seconds, until I saw her walk up the stairs to the front door.”
“On the way home, had you felt in any way that you had done anything wrong?”
“No.”
“On the way home, did you start getting text messages from her mother?”
Yes, Matthew says. He was about halfway there, fifteen minutes away from his door, when those texts began to arrive.
Part 6: “I’m Not a Rapist”
Ava’s mother traded almost forty texts with the defendant during the early morning of August 2, 2012. Police photographed the messages; more than two thirds of which are from Mary, who initiated the contact. The Crown argued against having this exchange admitted into evidence, but Justice Gary Trotter has allowed it.
Mary’s first message to Matthew accused him of being a thief and a rapist.
“I was just shocked,” he testifies on the witness stand. “I left and I felt like we both had consensual sex and there was nothing wrong.”
Her second text read: “How sick or angry are you? I will pray for you, but trust me, the day will come when your karma will catch up with you and you won’t handle it well.”
“Did you feel you had raped someone and were a sick human being?” asks Gary Stortini.
“No . . . from where I stood I didn’t do anything wrong. I assumed her mother wasn’t happy.”
While he was still driving home, Matthew tried to reply. But looking back, his messages don’t make much sense. He wrote things like “I get what you’re saying, but I was leaving,” and “(I was) not feeling it as much as I wanted to.”
He also lied: “We were going to have unprotected sex. As much as I wanted to have sex decided it wasn’t best idea,” Matthew texted to Mary.
This wasn’t a back-and-forth exchange. It was two people talking, or texting, past each other.
“How can you have sex with a girl too intoxicated to make legal consent? Are u crazy?” Mary wrote at one point.
“This all began just to feel surreal to me,” Matthew says in court. “It felt like a dream. The girl that I left that night wasn’t intoxicated, wasn’t raped. She was with me and had sex with me.”
“What caused you to respond?” asks Stortini.
“I thought I was going to be able to tell her the truth. She wasn’t listening to me at all. She kept on saying I was a rapist, that I had raped and assaulted her daughter.”
“I would think a guy like you would have more self respect,” read another one of Mary’s texts.
“I was panicking at this point. Me being accused of these things. It never ends well. My life is going to be done. It’s over. I didn’t know how to defend myself,” Matthew tells his attorney. “It was my word against hers, but a parent was telling me I did these things. I was scared because she was older than me.”
There was a confusing exchange about whether he had ejaculated inside Ava. “Do I need to get a kit done?” Mary asked.
Matthew lied in his reply: “No, you don’t. Why would I risk having sex without a condom? Her and I both want to lead normal lives.”
By this time, close to 2 a.m., he had arrived home. His parents were sleeping; he didn’t wake them.
“I was terrified. I was in a state of shock. I had no clue how to explain it to anyone. I thought my life was over. I thought it was consensual and fine,” Matthew testifies. “I had sex with a minor and I was going to jail because her mother was making these accusations . . . we had sex, I climaxed, I was not going to admit [that] to her mother.”
Ava’s mother texted him again: “This kind of behaviour on your part will only bring you misery.”
Matthew replied twice, telling Mary that Ava had agreed to sex, that she had said, “Fuck it, it’s summer.”
Mary was unmoved. She told him he’d chosen “the wrong girl at the wrong place. We’ll put you in jail.”
Another one of her messages said: “You don’t have sex with girls that are drunk. Are you stupid?”
Stortini asks Matthew where he was at this point.
“I believe I was sitting on the couch downstairs,” he says. “I was having a little breakdown, but in my heart I knew I did not do anything wrong. I felt like [Ava], just tell her the truth. I was not raping her at all. I didn’t know what to do.”
When Mary sent Matthew another text, accusing him of being drunk as well, he typed back: “I hope [Ava’s] fine. I didn’t want things to hit the wall like this. I’m sorry.”
“Did you think you’d had sex with a minor who was drunk and [you] had raped her?” asks Stortini.
“I felt like I had done something terribly wrong.”
“Guys like you end up with HIV,” texted Mary. “God is watching and karma will find you.”
“Trust me, my sex life isn’t what you think it is,” Matthew replied.
“I didn’t want to get into a text message fight with her mother,” Matthew tells the court. “I just wanted to go back to school, see my friends, and play sports. I was eighteen years old.”
“That’s what all date rapists say,” read one of Mary’s last texts.
“I’m not a rapist. Fuck,” he wrote back.
“We will have to address this tomorrow. This is not over.”
“Alright.”
“Get some sleep,” Mary signed off, incongruously.
Matthew sent her one last text, at 2:08 a.m. It read: “Am I going to jail?”
Later that morning, two police officers showed up at Matthew’s house. Both his parents were at work. His father had taken the car that Matthew drove the night before.
Matthew says the police were polite, and asked if he wanted a lawyer. He said no because he didn’t think he’d need one. After Matthew told his father what was going on, the latter gave police permission to impound his car and came home in his work truck.
Matthew continued talking to the police in the presence of his father. The officers did not arrest him, but advised him to get a lawyer and come to their station the following day.
*
In her cross examination of Matthew, assistant Crown attorney Sharna Reid goes after him in much the same manner as Stortini took apart Ava’s police statement. Both lawyers look for any inconsistency and pounce.
Reid reads one of Matthew’s messages to Mary: “I get what you’re saying but I was leaving and she said, ‘Fuck it, it’s summer.’ I didn’t want to hurt her and we were going to have sex unprotected. So I said, ‘Not feeling it as much as I wanted to.’”
“The text suggests you did not have sex unprotected or otherwise,” says Reid, “which differs from what you told us in court today. That is, you did have unprotected sex.”
Reid reads Matthew’s next text: “She said she was drunk.”
Ava, though, has testified that she never said any such thing. “In terms of the accuracy of that text, it’s incorrect,” Reid says. “Why did you type that?”
“I was in a panicked state. I was just trying to tell her mother that I didn’t do anything wrong,” Matthew answers.
Reid asks what he meant when he told Mary that he had tried to leave, but her daughter stopped him from doing so. He indicates that he was referring to Ava’s “Fuck it” comment.
“That’s what you characterize as stopping you from leaving?” Reid says in disbelief.
She shifts her focus to his texted claim that he wouldn’t have sex without a condom.
“I told her mother I wasn’t willing to take the risk, but I did,” Matthew says on the stand.
“When you wrote that sentence you knew you had, in fact, had sex without a condom. You knew?”
“Yes.”
She reads another of his texts: “We were having sex and I said we should stop.”
“Can you tell us when, sir, while you were having sex, you said you should stop?” she asks.
“After I had climaxed.”
“In your mind, the words ‘I’m done’ were akin to ‘We should stop’?”
“Yes.”
After a few more questions of this type, Reid says: “The general overall sense I get is you weren’t being exactly honest in terms of what you wrote. Is that fair to say?”
“Yes.”
Reid explores Matthew and Ava’s dating history. In her questioning, she takes a different tack from Stortini — who had, earlier in the trial, dismissed and declined to probe Ava’s version of events. Reid questions Matthew thoroughly about events Ava insisted never occurred — like having sex in the back of his van on their first date, and again in his car after one of his sports matches.
The prosecutor uses Matthew’s accounts of these disputed encounters to imply that he is not a gentleman. She asks how Ava reacted when he’d told her he wanted to keep their relationship on the “DL” (down low).
“She wasn’t sure about it, but she accepted it.”
Reid asks him to specify how.
“What are the exact words you used?”
“I don’t remember exactly.”
“How did she indicate she was agreeing?”
“She said she was looking forward to seeing me again.”
Finally, Reid begins questioning Matthew about the night of the alleged assault. She asks him what he and Ava talked about after she got in his car.
“She explained what happened between her and her friend and then said she wanted to talk about our relationship.”
“She didn’t say she wanted to reconcile?”
“No.”
“But she was angry about her birthday?”
“She’d go from one moment being happy and having a casual conversation to being angry and calling me names.”
“Had she ever behaved like that before?” asks Reid.
Only once, says Matthew, when he was supposed to meet her at a party, got lost on the way, and never showed up.
Reid presses for details about his version of the assault. “What caused her to kiss you?”
“We were talking and it kind of flowed . . . she came onto my lap.”
The prosecutor asks about the complainant’s position. Reid appears to have assumed Ava was straddling him; she seems momentarily taken aback when Matthew says Ava sat in his lap with her back toward the driver door, looking toward the passenger window.
“Have you ever been in that position before?”
“No.”
“Was it comfortable?”
“Yes.”
“What prompted her to go back to her seat?”
“I have no clue.”
“Was anything said?”
“No.”
“Was she simply one minute engaged with you, [then] left your seat and said she wanted to go home?”
“Yes.”
“When she said she wanted to go home, you had no difficulty with that?”
“No.”
“You were still sexually attracted to her?”
“Yes.”
“You were content to have her walk home as well?”
“Yes.”
Reid asks Matthew what he thought when Ava returned to the car.
“Maybe she wanted to be driven home or to have sex,” he answers.
“That was your expectation, she wasn’t coming back to continue the conversation?”
“No.”
According to Matthew, Ava took off her shorts and underwear and climbed on top of him. He grabbed her by her upper arms.
“Why did you assist her?” asks Reid.
“She wasn’t sliding.”
The prosecutor can’t wrap her head around the mechanics of the situation. She says she can’t understand how the two could fit behind the steering wheel, let alone engage in sex. She asks how Matthew could even get his pants off in such a confined space, and requests that he indicate the position of Ava’s legs by placing an X on a photo of the car’s interior. She questions Matthew about how long he was holding Ava by the arms.
“Until we got comfortable,” he says.
Several questions later, she asks why he held her legs.
“The thighs were the only thing I could grab at that time. The waist would have been too far.”
“The least comfortable place where one could engage would be precisely where you chose to,” says Reid, referring to the driver’s seat. “Why?”
“It was just spur of the moment,” says Matthew.
Reid wonders if it didn’t occur to him to hop in the back as they had done in the past — according to his account, if not Ava’s.
No, Matthew says, it didn’t.
She asks if Matthew remembers telling Ava that he wasn’t “Mr. Taxicab,” as she later told police. Or that since he was doing her a favour with a ride, she should do him one in return.
“I did not say that,” Matthew answers.
“You climbed over to her side, held her down by the arms and proceeded, by doing so, to cause injuries to her arms and thighs.”
“No, that did not happen,” he says.
“She quickly made her escape.”
“No, I drove her home to her house.”
Reid moves on to question the police visit to Matthew’s house, when his father asked him questions in the presence of the officers.
“[Your father] asked you if you had used a condom.”
“No.”
He asked if you had ejaculated inside Ava.
“I said no. I lied.”
“You knew you had ejaculated. You lied. What was the reason you lied to your father in the presence of police? How would that admission have impacted your fear?”
“I don’t recall exactly why I lied, but I did and I don’t recall why.”
“In text messages to [Mary], you were less than forthright, and in the words you said to your father, you lied. What did you believe would have happened?”
“When I had to call my father that day, that’s when I broke down. There’s no easy way to tell your parents. I lied and I admit that . . . I was just scared and I wasn’t thinking properly at the time.”
Reid asks about Matthew and Ava’s Facebook messages and BBMs. He says he deleted them all after the police left.
“Was there anything you thought would hurt you?”
“No, I just panicked and deleted everything.”
The prosecutor shows Matthew the photos of Ava’s bruises.
“Can you say whether or not those injuries were caused by you?”
“I don’t know.”
“Could they have been caused by the way you were holding her?”
“Yes.”
Parts 7 and 8, the final two installments of She said, he said, can be found here