At one point, the Crown wanted to call an expert on trauma to explain the “range of traumatic responses” that someone might experience, Cunningham says.
However, during pretrial motions, the Court of Appeal released a decision that basically said you don’t need to call experts about trauma responses in jury trials because a judge can explain that to a jury.
When the second jury was dismissed (after the first jurors were let go following the mistrial), the Crown thought about calling the expert again — but again, a decision came out that said judges don’t need such experts, because they can understand trauma responses, and trauma impacts how a person responds and what they remember of a traumatic event.
The closing arguments of Humphrey, McLeod’s lawyer, included a passage in which he said a person who would be terrified would “do the minimum,” Cunningham reminds the judge.
“He was laughing, scoffing, when he made that submission, as if to illustrate just how unbelievable her claim is,” Cunningham says. “I submit that offering sex can absolutely be an appeasement. It can be a normal response for someone in a highly stressful, unpredictable event.”
Cunningham is taking the judge through some of the arguments made in those two court decisions about trauma response. Those arguments include “disassociative amnesia,” where there’s a memory gap caused by a person detaching to cope with a traumatic event.
E.M. realized she was in a “vulnerable and dangerous situation” and her body reacted.
“It wasn’t a choice she was making. It was just what she did,” Cunningham says.