6 February 2018

Presumed Innocence in politics and health care

The last revision of ‘Presumed Innocence’ was on August 1, 2018, to include sections demonstrating the concepts of presumed innocence and credibility through the scandal involving Canadian politician Patrick Brown; through a look at the HRTO case of a patient (myself) versus hospital staff and doctors; through news stories on Prime Minister Trudeau’s 20-year-old scandal; and through news stories on Stormy Daniels’s encounter with Donald Trump. The common theme focused on throughout each of these is the concept of credibility. The legal term ‘presumed innocence’ and the lay person’s use of the phrase are also examined and meant to be a theme by which readers may consider the various scenarios. The List of References has been re-organized into 4 sections according to subject. Minor edits made (2) on August 2. 

Patrick Brown, Canadian politician

Lately, the concepts of “innocent until proven guilty” or “presumed innocent” have been a subject of discussion following accusations of sexual assault against actors, directors, and politicians, among others.  It’s the side of the argument which in layman’s terms probably means “to have compassion for” or “wait for him to be judged in a court of law, first.”

Michael Spratt’s recent article (see The Presumption of Innocence, 2018) explains what the term ‘presumption of innocence’ means, in terms of the legal definition, and the way it is being used inappropriately about one of the most well-known subjects of attention from the public – Patrick Brown, recently resigned leader of the opposition in Ontario.  Michael Spratt is a lawyer, so he knows the law. But I don’t think he knows much about common sense, which is, as I see it, an uninformed opinion in many cases. What I thought I knew 20 years ago, or a year ago, about something that I understood as common sense, is no longer. Many of my views are not the same as other people’s. And theirs are not the same as mine. It could have something to do with diversity – of experience, country of origin, culture, education, interests, family, or career. Or it could have something to do with growing older – a kind of wisdom developing, one would hope. 

I wrote a paper about wisdom once (Narratives and Wisdom, 2004), including interviews with women, in an attempt to find out what it was and if I stood a chance of achieving that state, with no luck. I might just as well have watched ‘Lucy’ (2014) with Scarlett Johansson and Morgan Freeman.

Michael Spratt writes, “Certain columnists wrote that what happened to Brown was wrong and that ‘every man in the world is now vulnerable’." He takes a different point of view, that it makes sense to stop and realize that these men are doing something terribly wrong. He describes the allegations as “shockingly serious: Brown is alleged to have taken advantage of his position of power over very young women, plied them with alcohol and then made inappropriate sexual advances” (The Presumption.)

The presumption of innocence,” he says, “should not be used as an excuse to disregard common sense.” But sometimes, using common sense can be as bad as relying on the common understanding of the presumption of innocence to guide one’s thoughts on a matter. One of the girls reported feeling intimidated because Patrick Brown had not been drinking but she had been. When I was growing up, it was men who had been drinking whose behaviour we needed to feel intimidated by. Now men have to be afraid of women.

Spratt continues, “The complaints were made on a confidential — not anonymous — basis to reputable journalists,” attempting to convince himself of their truthfulness, and of the ability of the journalists to understand. But there cannot only be common sense used where sex is concerned. There has to be some understanding of what the differences are between the sexes. Sexual freedoms, as they are called, are more widespread in society today both here and abroad, from what we hear in the news.  I wonder if men like Patrick Brown recognized the power they held over women, or did they see it as part of the sexual culture in our society today - the supposed freedom of young women to behave as though they were free to make those kinds of choices.  On the other hand, men are no longer permitted to treat women the way they have done in the past, when women’s voices were not being heard and acted upon.

In The Star, another story on Patrick Brown has one of the girls’ explanation:
 “Despite the fact that this happened, I didn’t want to let this impede on what I saw then as a career opportunity,” she said, adding that she’s choosing to speak out now to support women in similar situations.
“I don’t think that any woman young or old should be subjected to that and put in a situation where they have to decide between the career opportunity that’s in front of them and . . . taking themselves out of a situation that’s at best uncomfortable and at worst unsafe” (Two women accuse Patrick Brown2018).

Is she saying that she drank to feel good, or to be able to be flirty unflinchingly, or to not feel the pain of what she was having to do in order to have Patrick Brown advance her career? I cannot see how that provides support to any other young women growing up, except to inform them this is what the world is like.

If she knows that what she is doing is so that it will help her get the career she wants, at what point did she decide to stop what she was doing, ie drinking, flirting, letting Mr Brown get close to her, telling him to stop, getting driven home by him and then later claiming it was sexual assault.  Surely, the problem was that she didn’t want sex as much as he did, that she didn’t even like him. It was all about the career.  And she seemed to know that if she didn’t allow him some gratification, he wouldn’t further her career. Don’t the young women of today even like or admire the men who they do this with?  She called Brown an “old, single politician preying on young girls” (Two women accuse).

That sounds remarkably similar to what Jessica Leeds, the woman on the airplane with Donald Trump, was doing. She left her first class seat beside him to return to her own in tourist class when he went below the waist. That was her cut off point. But was it sexual misconduct, or was it a mutually beneficial interaction that simply ended?

A doctor, his staff, the HRTO, ageism and me

A year ago, I was in a situation where I was accused of being rude, in effect, (or “upset with”) to the staff of a specialist at a local hospital. It would appear that the idea of “presumption of innocence” didn’t need to be applied in that situation. I was deemed guilty by anyone who heard about it. A hastily written very negative black mark against me was put onto the report he wrote of that appointment, which was available to any doctor I wished to have as my family doctor, as well as to other doctors in the community I had appointments with.

I usually describe that part of the situation-in-its-entirety first, because it was so emotionally distressing, and it is the part that comes to mind. And besides, when I filled out the application for a Human Rights Tribunal it said to write the incidents down chronologically, as they happened. So I tried to do that.  It has been a fiasco, with backlogs, being put in a queue, clerical errors, and not having a caseworker, and being sent a ‘Notice of Intention to Dismiss’ (NOID) my application, by some unnamed person, because it might fall outside their jurisdiction.

I realized the other day how my application appears to whoever reads it, as chaotic, done in a chronological order, not even taking the most important incident first, to the extent that, the adjudicator who sent me a Case Assessment Direction (CAD) stated in the heading, McPherson v LHSC instead of McPherson v ‘The Dr et al’.  It seemed as though my case were getting pulled apart, with first one, then another administrative staff member of the HRTO looking at it, and making decisions that were not always the best ones or not explained in a way I could understand. See (Why and How I was discriminated against, 2017).

As chance would have it, in my response to the CAD/NOID, I started writing about it again, but starting with the main incident, which was not about me being accused of being rude. It was about me being shortchanged on a diagnostic test the specialist offered me, and then presumably ordered for me, one that was unlikely to be sufficient to make a firm diagnosis. I made out an application with the HRTO that I was discriminated against, by him, on the grounds of age and gender, and marital and family status.

I don’t think I was able to get the adjudicator see that in the previous response I wrote. I didn’t know what was expected of me, and I was given only clues, no direction that made sense. No wonder it appears to him that I have taken on the entire hospital, seeing my allegations that I was discriminated against by being treated differently than other patients - because they accused me of being rude to the Dr‘s staff – and “upset with.” So the adjudicator worded it McPherson v  LHSC. So who is presumed to be innocent in this case? Well, it’s certainly not me.

I don’t know if starting my latest response with the main incident, instead of the accusations by the girls, is enough to have the next adjudicator or admin staff member realize the situation I am in, that I have been ganged up on, because the Dr knows I know I was getting lesser treatment, as many older people probably are in our medical system. See (Ageism in Ontario's health care, 2017).

What is important, whether the Drs and their secretaries protecting him, or the girls like the ones who accused Patrick Brown, is getting their stories in, and the more of them the better, which makes them more powerful against him, and having the credibility that comes with who they are, now that they have careers, as well as getting their stories in first. If they can accuse him first, and be believed, or if the Dr at the local hospital can accuse me of something so chaotic that it can’t be taken in easily, and if they do it first, then they have the upper hand. They have the credibility, although it sickens me to know that they do, despite all they have done to me.

Those girls accusing Patrick Brown didn’t have to do that. They could have tried to find another way, instead of accusing him of that and destroying his career (Would-be Ontario PC leader, 2015). The girls at the hospital who colluded amongst themselves and with others including the Dr, to accuse me of something I did not do, didn’t have to do that.  Doctors don’t lose their licence to practice that easily. But the answer does not lie with Patient Experience, or Patient Relations, or with the media taking on people who pass their credibility test.  What is needed are people with the knowledge to sort out the problems, not to try to fit my experience into their framework and then dismiss it if it seems to them it doesn’t fit right, and not journalists doing a job they may not be capable of doing.

I find it appalling that the Dr and his staff have been granted credibility, in making accusations against me, that have affected my health and sense of well-being, and that my allegation against him, in regards to this specific incident in particular, has been diminished by having it included as just one of a number of allegations I made against the hospital.  The way the Application form was laid out, the name of the organization comes first in the list of respondents, followed by the list of individual respondents. But not all doctors are employees of the hospital. The specialist I saw was an independent surgeon/specialist, not just another employee who I was alleging had harassed me and discriminated against me.

There have been several mistakes made in the HRTO’s treatment of my application.  I hope that it won’t get dismissed because someone hasn’t been able to take in everything that I wrote about, or expects me to prove my allegations before I get to the hearing. As the closing sentence of Michael Spratt states, “At the end of the day, insisting on proof beyond a reasonable doubt outside the courtroom can lead to, and certainly does not protect from, injustice.”

Several weeks ago I wrote a letter to Dr Paul Woods, President of LHSC in London, sending the letter to him specifically, by Express Post, explaining the situation and attempting to get someone to resolve this without the HRTO deciding on it based on misinterpretations of my application by administration staff at the very beginning, sending me a NOID (Notice of Intent to Dismiss) based on their faulty reasoning and neglecting to sign the document, which I am assuming means it wasn’t an authorized decision. I never received acknowledgment of my letter.

I look back now, and see that the Dr’s decision to send me for a diagnostic VNG test was a good decision. The problem was that I was being offered only a fraction of the complete test, an aspect of discrimination, based on age and gender, that is probably quite common. The fact that the girls on staff turned against me when I asked questions about it, accusing of me of being rude when I hadn’t been, and the fact that the Dr put this into his report on the appointment, affected future attempts to have a family doctor, leaving me feeling disenchanted with the medical profession and the integrity of the practice of health care. Now I am waiting to see how the HRTO will deal with this matter, having told me that the HRTO does not deal with cases involving “medical decisions.”    

See additional article below in List of references.
July 9, 2018  Prime Minister Justin Trudeau

Another dilemma has occurred, not so easily resolvable because this time, PM Justin Trudeau is the one caught in the middle. See ‘Hypocrisy is at the crux of theTrudeau groping allegation,’ July 8, 2018. On the one hand, Trudeau allegedly behaved inappropriately toward a young woman 18 years ago, at a music festival. As a result, her colleagues came to her rescue and an editorial was written in the newspaper she worked for as a reporter. Her name remained anonymous, as did the precise behaviour attributed to Trudeau, then a teacher. He was named. She wasn’t. He apologized and that was the end of that. Until now.

The dilemma has occurred because Trudeau has endorsed a policy of zero tolerance towards men who commit sexualized occurrences against women. True to his feminist beliefs, Trudeau insists that women ought to be believed when they speak out against such incidents. He has managed to get himself in hot water over his quick responses to some politicians failures in their interactions with women. Now this.

Strangely, his credibility appears to be declining over this mess, while the unnamed woman still has credibility, largely, I believe due to the support of her colleagues who likely were the same people who interviewed her and passed the message along that she wanted nothing more to do with this. So having raised it, very publically 18 years ago, in a national newspaper, and offering nothing – no name, no details of the incident, nothing except that she felt disrespected – she now wants to let it go.

This seems very one-sided. Trudeau has been left holding the bag. It appears that both of them may have made mistakes. His was presumably an overzealous flirtation. Hers was to react strongly to what used to be normal behaviour between men and women (which often left one or the other uncomfortable emotionally).  And she told her colleagues who may have thought this made good news – a story about the son of former PM Pierre Elliott Trudeau.

Some may see the woman as the innocent party, while others  - perhaps not as many – side with Trudeau. But is he a hypocrite? I don’t think so. He is a well-meaning man who is the Prime Minister, seeking a new way of forming a working government. Is he sincere? Mostly, he is, as well as practicing tolerance and acceptance with a sense of social justice.  He is not perfect, though for a while he thought he was, endorsing zero tolerance for men’s mistakes, until he was caught in the same web other men have been.

I cannot see at this time how justice (at least social justice) can be applied to this situation if the woman does not come forward and tell her side of the story. I understand she has given her name now, but that still leaves the original editorial in place, that was written about her (or by her, about how she saw it).  Without that, in this new world of the Me Too movement, Justin Trudeau is left with his loyal supporters going about their business hoping he can keep his position and regain the trust of the people so he can continue to do his good work – and do it better while he continues to learn.

What she – the woman who was a reporter – gained from all this she got 18 years ago – the story for her newspaper, an apology, and apparently her self-respect back. She may think there is nothing more to gain, but by telling her story, other women can learn from it and can gain confidence. Did she do this for herself, or for herself and other women?   Which one is the hypocrite – Trudeau or her?

To consider who has the power and which one is using it above an acceptable level is what needs to be determined. Who stands to gain – and what – and who stands to lose. Was what the woman experienced an emotional ordeal, and what did she lose besides a momentary feeling of lack of respect from someone who ought not to have mattered to her, except he was the son of a Prime Minister?

Calling Trudeau a hypocrite even though many must have recognized the errors he was making as he learned to do his job is hardly fair to him or the rest of Canada.  The main thing, now, is what he does – what he is able to do – to make this situation right.  He is on a steep learning curve.  See additional articles below in List of References, eg. What we’ve missed in the conversation about Justin, 2018. 

July 30, 2018 Stormy Daniels

Another account of what is meant by credibility comes from an article in Macleans by Laurin Liu, a millennial author, who attributes the characteristic of credibility to Stormy Daniels, paid sex worker to Donald Trump, to her narration of the sexual encounter she had with him shortly before he became President. See ‘How Stormy Daniels is closing the credibility gap’, 2018. The author refers to Miss Daniels, aka Stephanie Clifford, as having credibility in her manner, coming across as trustworthy, while ignoring any reference to women having credibility due to their careers, personal wealth, marital status, community status, and so on – not inherent but marital, social, financial, and employment attributes.  Liu states at one point, “For many men, Daniels is believable; for many women, she is not just believable, but relatable.”

Laurin Liu explains the idea of the gender “credibility gap” which suggests that “women are less likely to be believed when they make certain claims (against men), because they are believed to be inherently less competent or trustworthy. In other words, in an exchange of he-said-she-said, the former is likelier to win” (‘Cassandra among the creeps,’ 2014 in ‘How Stormy Daniels’, 2018) . The “certain claims” being made, however, in this situation, are specific ones whereby Stormy Daniels had, she says, unwanted sex. Thus there would be men who would see Daniels as agreeable, and probably credible. A lot of women may well have had the same kind of experience, not being coerced, exactly, but agreeing to sex for the sake of their job, or getting a leg up on their career. So both men and women could be seeing Stormy Daniels as credible, for this reason. But was this a matter of credibility or was it a change in power relations between men and women, giving women a voice, but not the complaining voice of Me, Too.

There’s a difference between credibility and a person (female, in this case) siding with another (Stormy Daniels) because she’s had a similar experience. Then it becomes a matter of sexual politics, and not that Stormy Daniels demonstrated inherent credibility, or credibility through the jobs she has done in her life.

This question has to be asked wherever women side with someone or men, but the subject here is women siding with Stormy Daniels).  Are they doing so because the woman sounds as though she is telling the truth through her demeanor, or because she has been known to be truthful all her life (inherent credibility), or because she holds a responsible position at work, or because she is married to a man with high status in the community?  And what about the women taking Ms Daniels’s side. Do they have credibility, based on their status in the community, or inherent worth, or do they do so because the person they are holding up as a credible person (male or female) is the one who enables her to receive a fat paycheck?

The ‘credibility gender gap,’ says Rebecca Solnit, used to be about men having credibility while women often had none, especially when sex was the subject of discussion (see Cassandra, 2014). It wasn’t all that long ago that men controlled women’s sexuality. With the coming of ‘the pill,’ the oral contraceptive, and feminism, women are able to take more control over their lives. Stormy Daniels apparently feels empowered by her choice of career, and by the words used to describe her, says Laurin Liu. Ms Daniels is right that prostitutes should also be treated with dignity and respect, but that doesn’t require identifying with her cause or idealizing her situation.

The issue appears to be that Ms Daniels believes she should have been paid by Trump as well as allowed to speak about the sexual encounter.  But is this story really about sexual liberation, or is it about women finally being in a position to tell men what they really thought of them, and what they really think of sex when presented to them in the coercive manner that it sometimes is?  Is it about the worthiness of women as credible narrators, or about how women in greater numbers will now choose to side publically with women who they see as having had a similar sexual experience of life as their own?

This story of the credibility of Stormy Daniels, together with the other sections on the themes of credibility and the presumption of innocence, bring the subject into focus in a way that enables them to be understood, by lay persons and others. The topic of credibility, and presumed innocence, taken as one, is not fixed but fluid in the face of changes in the power structure of society and as new knowledge comes to light about individuals themselves and topics of concern in society. Race, gender, sexuality, and increasingly aging and sexual misconduct are in the public eye more than ever. This blog piece “Presumed Innocence” has moved from one subject to another, with each area contributing to a greater understanding of the others, and of how credibility and the presumption of innocence can be understood.

List of References  - organized according to each of 4 sections

References - Patrick Brown

The presumption of innocence is for courtrooms, not politics
by Michael Spratt
CBC Opinions
Jan 30, 2018
retrieved Jan 30, 2018

Two women accuse Patrick Brown of sexual misconduct
Jan 24, 2018
By Victoria Gibson
The Star
retrieved Feb 2, 2018

Would-be Ontario PC leader Patrick Brown driven to win
Torstar News staff
Metro News
May 3, 2015
retrieved Feb 5, 2018
Added Feb 21 2018

Patrick Brown cleared to run for Ontario PC leadership
By Amara McLaughlin
CBC News
Feb 21, 2018
Added Feb 21 2018

Ontario PCs overturn nominations, bar former leader Patrick Brown from running as candidate
by Karen Howlett
Globe and Mail
March 15, 2018
added July 9, 2018

Patrick Brown to run for Brampton mayor
By Noor Javed, Staff Reporter
Robert Benzie, Queen's Park Bureau Chief
The Star
July 27, 2018

References - A doctor, his staff, the HRTO, ageism and me

Ageism in Ontario's health care and human rights (HRTO)
by Susan McPherson
Sue’s Views on the News
Dec 21, 2017

Why and how I was discriminated against – explaining to HRTO’s Dr Fthenos
by Sue McPherson
Sue’s Views on the News
Dec 29, 2017

Narratives and Wisdom: the lives of women growing older
by Sue McPherson
S A McPherson web site

References - Prime Minister Justin Trudeau

After 'reflecting very carefully' on groping allegation, Trudeau says he doesn't feel he acted inappropriately
by Marie-Danielle Smith and Adrian Humphreys
National Post
July 5, 2018 10:51 PM EDT. Last Updated July 6, 2018 1
0:49 AM EDT

‘Hypocrisy is at the crux of the Trudeau groping allegation’
by Robin Urback
CBC News
July 8, 2018, 2:41 PM ET

‘People experience things differently,' Trudeau says of groping allegations
By Kayla Goodfield and Chris Herhalt
CTV News Toronto
July 6, 2018 7:00PM EDT Last Updated July 6, 2018 8:01PM EDT

What we’ve missed in the conversation about Justin Trudeau’s alleged grope
By Alheli Picazo
Jul 23, 2018

References – Stormy Daniels

How Stormy Daniels is closing the credibility gap for women
By Laurin Liu
Apr 6, 2018

Cassandra Among the Creeps
By Rebecca Solnit
Harper’s  ‘Easy Chair’
October 2014 issue

Prostitutes take their desires to the Supreme Court
By Sue McPherson
Sue’s Views on the News
23 January 2012 (revised Jan 25, 2012)
A couple of the links are no longer working in this article so I have added the link to another piece on prostitution written the same year, as follows:

The decriminalization of prostitution: two women talking
By Sue McPherson
Sue’s Views on the News