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Yet even when accused men win, they lose
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The acquittal, last week, by Justice Maria Carroccia of five former members of the Canadian World Junior Hockey Team charged with sexual assault has provoked the usual exaggerations and question-begging from feminist advocates.
A common theme has been the alleged negative impact of the verdict on “survivors.” Canada’s state broadcaster, the CBC, titled an article “Hockey Canada trial outcome a ‘crushing day’ for sexual assault survivors, says prof.” The Globe and Mail had the same focus: “After the Hockey Canada verdict, advocates fear survivors will fall silent.” For CTV News, also, “Advocates worry about message to survivors following Hockey Canada sex assault trial.” It seems that any not-guilty finding—no matter the accuser’s proven lies and venality—is said to constitute an assault on rape victims everywhere.
Our era’s motto: Better 100 innocent men go to prison than one potential accuser hesitate to come forward.
Many commentators also gushed about the courage of the woman, still identified only as E.M., who took the witness stand to proclaim her truth. E.M.’s lawyer, Karen Bellehumeur, called her “a remarkable person and truly a hero.” Professor Daphne Gilbert credited E.M. with provoking important public conversations at enormous personal cost. Supporters on the courthouse steps carried signs saying “We believe E.M.”
It’s hard to fathom that those declaring their anguish at the verdict and their admiration for E.M. have actually read Judge Carroccia’s 90-page judgement.
That judgement, far from revealing the judge’s failure to understand E.M.’s fear, as one feminist organization alleged, should cause any unbiased observer to question how the case was ever allowed to go to trial in the first place.
It had been found to be a loser when police first looked into it back in 2018. The story was that E.M. had met a hockey player, Michael McLeod, at Jake’s Bar in London, Ontario; McLeod was in town with his team to celebrate their World Junior Championship victory at a ring ceremony and gala dinner. E.M. agreed to go back to McLeod’s hotel room, but once there, he invited many other players to the room, where they took turns sexually assaulting her. She went home crying, and when her mother asked her what had happened, she told her. Her mother called the police.
The problem was that the complainant’s story was full of holes. Questioned by investigators in the days following, she couldn’t say she hadn’t consented, confessed that she may have enjoyed the sexual attention of the players, admitted she could have left the hotel room at any time, and never mentioned fear or intimidation as factors in her actions. London police closed the case in early 2019 without laying any charges. Over time, it seems, E.M. constructed a more compelling story to explain herself in a way that would be acceptable to her mother and to E.M.’s boyfriend.
In 2022, a police investigation was reopened after it was reported that Hockey Canada, the sport’s national governing body, had paid out millions in settlement money to women like E.M. who had alleged sexual misconduct on the part of players. E.M. herself received an undisclosed settlement amount in 2022 after suing for 3.5 million dollars.
Charges were ultimately laid, in early 2024, against five men, all of whom had by then launched careers in the National Hockey League: Dillon Dubé, Alex Formenton, Carter Hart, Callan Foote and Michael McLeod. Their NHL careers are now in tatters while their accuser has enriched herself with a false accusation.
**
Most sexual assault trials involve he said/she said grey areas. This one did not. What happened in that hotel room seven years ago was a tawdry spectacle in which the accuser admitted playing the part of a porn star. All page references below are to Carroccia’s must-read judgement.
According to witnesses, E.M. repeatedly demanded that the players have sex with her, mocked those who wouldn’t as “pussies” (p. 30) and masturbated, naked, in order to entice the yet-unconvinced. She demanded of the young men, “Can one of you guys come over and fuck me?” (p. 30), “Can I suck your dick?” (p. 34), and “Is anyone going to do anything to me or do I have to do it all?” (p. 40). The judge found that evidence for E.M.’s sexual aggressiveness was “overwhelming.”
Many players testified to their shock at her words and actions, having never seen a woman behave in such a feral manner. Some found it exciting but also uncomfortable. Carter Hart testified that he accepted the invitation for a blow job from E.M. but gave up after about 30 seconds, unable to maintain an erection because he felt so awkward (p. 37). When he drew back, she said something like, “Oh, you guys are being pussies” (p. 30).
There was hard evidence on McLeod’s phone camera, not once but twice, that E.M. had unreservedly consented (“You’re okay with this? Ya, I’m okay with this” and “You are so paranoid … holy. I enjoyed it. It was fine. It was all consensual”). There was no reliable evidence that she had not. All of the players, whether accused or witnesses, were consistent in their statements, including to police during the initial investigation in 2018. They testified that no one asked or instructed E.M. to masturbate or to perform sexually. Tyler Steenbergen, a prosecution witness, said she was “quite vocal” about what she wanted. Another witness, Brett Howden, said that E.M. was “chirping” guys and “trying to egg them on because no one would take her up on her offer [of sex]” (p. 32).
E.M.’s repeated claims that she was on auto-pilot, too drunk and detached from reality to do what a non-inebriated person would have done (such as leave the hotel room or even merely put her clothes on), and that the players should have known that she was incapacitated and unwilling, were contradicted by a plethora of video evidence from Jake’s bar showing no signs of intoxication. Near the end of the night at the bar, she was still sober enough to notice that she had been short-changed on a drink. One witness remembered seeing her “hanging off” Michael McLeod, not being pursued by him as she had claimed.
E.M. had admitted to police in 2018 that McLeod frequently asked her if she was okay with the sexual activity throughout the night, and she had said she was (p. 16). Years later, she said that she had no choice but to say that.
In short, it was a case in which all the key planks of the complainant’s story were undermined either by her own prior statements to police, her admissions under cross-examination at trial, or by video or witness evidence. Her claims about being separated from her friends at Jake’s Bar, plied with drinks until intoxicated, forced to touch players’ genitals while dancing, and followed closely around the bar in a predatory manner—all were proven false. E.M.’s friend had texted her more than half a dozen times that night to ask if she wanted to be rescued from McLeod, and E.M. had declined the offer.
**
Why reopen a case in which all the trustworthy evidence, including by the complainant herself, demonstrated that far from being a victim, she was actually the sexual aggressor, taunting the young men in the room and not taking No for an answer?
Perhaps the thinking was that, win or lose, the trial would demonstrate how seriously the Canadian justice system takes women’s claims of sexual abuse—and even, perhaps, how very up-to-date the Canadian legal theory of consent has become. The strangeness of this aspect of the case was admitted by the assistant prosecutor Heather Donkers in opening remarks to jury members that the trial would “challenge [their] preconceptions.”
We have traveled a long way from Yes means yes and No means no, that old chestnut of 1970s and ’80s feminist activism. In the brave new world of Canadian feminist legal theory, it is not reasonable to expect a woman of 20 years old to say No to sex she doesn’t want or to leave a room no one is preventing her from leaving. Even emphatic declarations of consent (in this case, recorded at 3:25 am and 4:26 am on the morning in question) need not be taken at face value if the complainant says, years afterwards, that she didn’t mean them.
Crown attorney Meaghan Cunningham dismissed the two consent videos, saying during the trial that they could be considered “‘token lip service box checking’” and not evidence of any reasonable steps by the defendants to sincerely ascertain valid consent.” What exactly would have constituted “reasonable” proof of “valid consent” to “each and every sexual act” was not, of course, stipulated. We can conclude that whatever might have been produced, it could never be good enough for E.M.’s champions, who now claim that merely being in a room with men she didn’t know was enough to render all of her actions and statements coerced.
In closing arguments at trial, the prosecution actually argued that not only did the consent videos not prove consent, but they showed lack of consent because Michael McLeod “knew [the complainant] was not consenting to the activity and that is the reason for making the recording” (p. 48). In other words, proof of consent should be seen as proof of non-consent.
The five players, and even to some extent the non-accused teammates called as witnesses, all became collateral damage in this exercise in feminist rectitude, this search for a pristine record of consent. It was surely appropriate that all of the accused were white men playing elite hockey, a game closely associated in the feminist mind with toxic sexual entitlement (see my essay on the smearing of NHL player Jake Virtanen here). The public scandal unleashed by the trial, which occupied news sites for years, brought a punishment that the legal process alone, with its rules of evidence and burden of proof, couldn’t guarantee.
Many of the accused players were were dropped from NHL teams, their contracts not renewed, after charges were laid in early 2024. All had their reputations tarnished and lived under threat of substantial prison terms. Even upon acquittal, the taint will last. Thousands who hear about the case, exposed to the feminist bleating and not bothering to learn details, will assume they did something terrible—an impression that will never be fully erased because very few with the power to do so will put effort into erasing it. A full week after the acquittal, the Montreal Gazette published an article with the five players’ pictures, “Sexual assault trials involving hockey players raise questions about locker-room bro culture.” Even after being fully exonerated by the judge, they are still declared guilty.
Cases parallel to this one—in which accusers played fast and loose with the truth—are not unusual in Canada. The most famous case occurred in 2016 when popular radio host Jian Ghomeshi was acquitted amidst a feminist uproar after three women testified that he had sexually assaulted them, including choking, slapping, and punching them. Fortunately, he had kept affectionate emails and text messages from each of his accusers, enabling his defense team to expose the lies they told both to the police and on the witness stand about their desire to continue seeing him. Ghomeshi was acquitted, but his reputation never recovered and, nearly ten years later, he has not worked in his field again. His accusers, who were revealed to have conspired together to pervert the course of justice, were never charged.
Accusers in sexual assault trials, even when exposed as liars, have their identities protected by law. Accused men do not. It is far from clear why E.M., who defrauded Hockey Canada with a bogus victim story and was willing to see five men go to prison for her actions, should have her name shielded, while the men she accused must live under the long shadow of her false allegations.
**
Not every commentator, of course, expressed disappointment that the accused men escaped prison; a fair number applauded the verdict. But few failed to condemn the players for allegedly boorish, insensitive, or immoral behavior. I have yet to find a single mainstream commentator who condemned E.M. for her behavior.
In “Why Carter Hart and other acquitted players should get another chance in the NHL,” David Staples was painstaking in giving an account of the judge’s reasoning, citing extensive examples of E.M.’s vagaries, self-contradictions, and falsehoods. He seemed to be squarely on the players’ side—and yet ended his essay with the following condemnation:
“I don’t think the five hockey players handled themselves well that night. Who does think that? No one.
They are not heroes. But they’re not monstrous villains either. They’re young men who made a mistake in not treating E.M. with greater care. She, as well, will have to live with the consequences of her own decisions that night.
But the five accused players did nothing criminal. They’ve already paid a huge price for what turned out to be iffy allegations against them. They should not lose their NHL careers because of E.M.’s proven false narrative.”
Not “monstrous villains,” eh? Yet castigated for their failure to treat E.M. “with greater care.” What kind of “care” did this woman deserve? I’m drawing a blank. Especially given that some of the players were as young as 18 years old, why is E.M. not criticized for her failure to attain their consent to the sexual activity? Did she not owe it to them not to sexually harass, berate, and shame them while they were inebriated and vulnerable? Did she not owe them the basic “care” of not lying about them, persistently and criminally over years, to Hockey Canada investigators, police, lawyers, and the judge?
In his article, Staples would go no further than to say that E.M. “will have to live with the consequences of her own decisions that night.” Nonsense: she is not living with any consequences. If she were, she’d be being criminally investigated for perjury or obstruction of justice. In a world of consequences, she would be civilly tried for defamation and required to pay to the players the money she extorted from Hockey Canada.
No matter whether some of the falsely accused players can now regain their NHL opportunities (so far, the NHL itself says that, even if not criminal, their behavior remains “unacceptable”) a grave injury has been done to them that they are helpless, in our present cultural climate, to remedy. In future, they’ll likely feel fortunate not to be condemned to their faces as immoral abusers.
Meanwhile, the woman who thought to destroy them with lies has been met with an outpouring of sympathy. With enough financial incentive and while held to such a low standard of behavior, she might possibly do something similar to another young man or young men. And if so, feminists would once again salute her courage and integrity.
