Religious belief versus Human rights
I have said elsewhere and repeat here:
"No one has a right to burden others with their religious tenets, especially when those burdens can or do threaten the very lives, liberties, and happiness of others.
"The entire religious argument of the religious right is: "If we want the world to be as narrow-minded as we are, we can make it so." If they can't get everyone to agree, then they need the 'rule' that those who follow their rules should be exempt from the rule of law, annihilating the notion of the equality of everyone before and under civil law, which is, by the way, the very foundation upon which civil law is based and the very foundation of civil society.
"Put differently, rights of conscience are not 'own' rights. Rather they are human rights held mutually in common. The fact that these are rights held mutually in common is what restrains how they may be used justly : : with fairness towards everyone :: either by persons acting alone or together or with others. This is (ideally) the political order of republican democracy based upon mutually shared human rights.
"This political order says that we politically/together have the 'authority' to make civil laws :: i.e., the rules we live by ::that may conflict with Divine laws as the religious right divines them. That this is anathema to them is self-evident, for they believe that civil law exists only to properly enforce 'Divine' law as they see it.
"The religious 'right' has insisted on this point ever since the first whispers of representative government surfaced and developed in the West. And, the early migrations to America were made by those who opposed the burdens that state-religions imposed upon them.
"So, what they are seeking by 'conscience' exemptions is, in effect, the
overthrow of the very rule of law upon which the authority of civil government is based in the West. They seek to establish an inequality between us that, if allowed, dooms political democracy itself.
"What they ultimately reject is neither more nor less than our view that it
is civil society altogether that frames human rights and sets the the
limits of personal and social liberty as mutual rights held in common.
They are NOT properties one can do with as one wants, nor unbridled by
responsibilities to preserve and protect those human rights.
"This is hardly the only area wherein they refuse to consider that operating
with a public license requires actually serving the public at large
unless there is very good common interest cause not to. Or, that keeping
that license is a privilege that can be revoked. The USCCB's persistent
theme, for instance :: one imposing dogma over medical practice :: is
subversive to civil government, its authority, and the liberty of all
within the framework of mutually shared rights and responsibilities.
"The Religious Right rather firmly believes that they are being persecuted
if they are not permitted to burden anyone they want to.
"They deserve rebuke and ridicule. And they warrant losing their voice in
politics on that position alone, for that voice threatens to destroy
liberty of the people, for the people, BY the people, a dream we have
together as a political ideal (one never quite likely to be realized).
"For them, there is no commons of mutual human rights that is shared between
us. They prefer to act as if their human rights are their property to do with as they please, rather than ours held together in common. As a property of theirs, a point I can never concede, they feel they can act on their rights, unbridled by the restraint of having to recognize and adjust to the reality that others share the same human rights they have, neither more and nor less than they.
Human rights are our mutual possessions. They come with inherent responsibilities to protect them. Or, as Thomas Paine once put this, 'Whatever is my right as a man is also the right of another; and it becomes my duty to guarantee as well as to possess.'
"When anyone loses 'rights' we hold in common, then everyone has. This should need no explanation."
Please pass this forward.
Saturday 25 April 2015
Thursday 30 October 2014
PART III: HOW TO CRIMINALLY CONVICT THE INNOCENT IN CANADA
When a criminal indictment is brought, or a trial takes place, one normally knows that a crime has occurred. The central issues in a bank robbery case, for instance, are not whether the bank was robbed or when that happened. Rather, the central issues go to whether the accused is the person or persons who robbed it.
In cases of alleged sexual assault that rely on the accuracy of the memory of complainants or the accused, it’s often the case that a pre-trial agreement about the ‘facts’ is entered into.
In this case, one of those facts agreed to is that the complainants each visited Fr. Seraphim in Winnipeg at different times. And, that is certainly the case.
Yet, another of the ‘facts’ agreed to is that the complainants visited separately in the summer of 1985.
But that is not the case. One went in July 1985; the other, in July 1986. So, they visited separately, their visits being about a year apart.
The narrative the Crown presented was that, separately, over the course of one summer, two 11-year-old boys, twins, had visited Fr. Seraphim.
The entire case was structured around this narrative, as was all of the judicial reasoning of the bench. As Judge Mainella said in his ruling: “[The two complainants] came to Winnipeg only during the summer of 1985.”
This agreed-upon narrative both coloured and affected the relevance of, the interpretation of, and the weight given to the testimony of each of the witnesses for the defense.
It also implied that Fr. Kostoff was not the parish priest when the mother initially made her allegations of misconduct. The court reasoned that her initial disclosures of sexual misbehavior were made to a Fr. Beldan (spelled incorrectly this way in the ‘ruling’).
In fact, because Fr. Kostoff became the parish priest in October 1985, Fr. Belden (now spelled correctly) had never had any disclosures made to him by her or anyone. He'd left the parish well before she made her initial allegations to anyone. We can say that because she made those allegations after her second boy had returned home. So, the earliest she spoke to anyone about her boys’ visits was in or after July 1986.
The court treated the implication that the mother had spoken to more than one priest as a fact.
Because of this agreed-upon narrative, the mother’s own sworn statements that she’d initially spoken with Fr. Kostoff, her parish priest, was unacceptable to the court. Instead, the court chose to believe that (and I quote here) “she made different disclosures about the abuse. She said she told Father Kostoff, who I [Judge Mainella] actually take to be Father Beldan, that the accused touched the boys when he was naked.” (Emphasis is mine.)
This also meant that Fr. Kostoff’s sworn testimony that she’d never told him of any such physical contact was looked at against the ‘fact’ that she’d made her initial disclosures of sexual touching to Fr. Beldan and others who were never called as witnesses.
This also meant that anyone who accurately recalled that the youths had visited separately a year apart was ruled out as a witness for the defense. In other words, the agreed-upon narrative not only colored how the trial testimony was being interpreted and weighed, but it also served to filter out those called to testify. This eliminated anyone with a reliable memory of when the visits took place.
Moving along, there is another extremely serious problem with this case.
It, too, has to do with the set of agreements made pre-trial.
Among those agreements was the agreement that the members of the family of the complainants would not be called back to testify after they returned home.
On its face, that seems fair.
It would have fair if the trial had been held altogether in one piece. If it had been, rather than spread out to different days spread months apart, these family members could have been recalled to resolve any inconsistencies between what they testified to and what other witnesses testified to. By the time some witnesses testified, they couldn't be recalled.
Cross-examination of inconsistencies and contradictions between testimony is a vital part of full answer and defense. The right to full answer and defense is a pre-Charter common law right embedded in principles of fundamental justice judicially constructed well before the Charter.
The failure of the Bench as the Court was to protect this right in common law within its scheduling of the trial testimony. As it is, the scheduling made it impossible to fully exercise this right.
Scheduling the trial into days spread months apart made it impossible to conduct any cross-examination of the complainants about clear contradictions in other Crown witness testimony.
When it’s impossible to cross-examine three of five Crown witnesses due to a pre-trial agreement and due to court scheduling, something’s seriously amiss. That this raises sections 7 and 11 of the Charter is yet another matter. For, though the Charter has gone unmentioned throughout this trial, serious Charter issues are invoked by the pre-trial agreements.
………..
That’s all for today, folks.
When a criminal indictment is brought, or a trial takes place, one normally knows that a crime has occurred. The central issues in a bank robbery case, for instance, are not whether the bank was robbed or when that happened. Rather, the central issues go to whether the accused is the person or persons who robbed it.
In cases of alleged sexual assault that rely on the accuracy of the memory of complainants or the accused, it’s often the case that a pre-trial agreement about the ‘facts’ is entered into.
In this case, one of those facts agreed to is that the complainants each visited Fr. Seraphim in Winnipeg at different times. And, that is certainly the case.
Yet, another of the ‘facts’ agreed to is that the complainants visited separately in the summer of 1985.
But that is not the case. One went in July 1985; the other, in July 1986. So, they visited separately, their visits being about a year apart.
The narrative the Crown presented was that, separately, over the course of one summer, two 11-year-old boys, twins, had visited Fr. Seraphim.
The entire case was structured around this narrative, as was all of the judicial reasoning of the bench. As Judge Mainella said in his ruling: “[The two complainants] came to Winnipeg only during the summer of 1985.”
This agreed-upon narrative both coloured and affected the relevance of, the interpretation of, and the weight given to the testimony of each of the witnesses for the defense.
It also implied that Fr. Kostoff was not the parish priest when the mother initially made her allegations of misconduct. The court reasoned that her initial disclosures of sexual misbehavior were made to a Fr. Beldan (spelled incorrectly this way in the ‘ruling’).
In fact, because Fr. Kostoff became the parish priest in October 1985, Fr. Belden (now spelled correctly) had never had any disclosures made to him by her or anyone. He'd left the parish well before she made her initial allegations to anyone. We can say that because she made those allegations after her second boy had returned home. So, the earliest she spoke to anyone about her boys’ visits was in or after July 1986.
The court treated the implication that the mother had spoken to more than one priest as a fact.
Because of this agreed-upon narrative, the mother’s own sworn statements that she’d initially spoken with Fr. Kostoff, her parish priest, was unacceptable to the court. Instead, the court chose to believe that (and I quote here) “she made different disclosures about the abuse. She said she told Father Kostoff, who I [Judge Mainella] actually take to be Father Beldan, that the accused touched the boys when he was naked.” (Emphasis is mine.)
This also meant that Fr. Kostoff’s sworn testimony that she’d never told him of any such physical contact was looked at against the ‘fact’ that she’d made her initial disclosures of sexual touching to Fr. Beldan and others who were never called as witnesses.
This also meant that anyone who accurately recalled that the youths had visited separately a year apart was ruled out as a witness for the defense. In other words, the agreed-upon narrative not only colored how the trial testimony was being interpreted and weighed, but it also served to filter out those called to testify. This eliminated anyone with a reliable memory of when the visits took place.
Moving along, there is another extremely serious problem with this case.
It, too, has to do with the set of agreements made pre-trial.
Among those agreements was the agreement that the members of the family of the complainants would not be called back to testify after they returned home.
On its face, that seems fair.
It would have fair if the trial had been held altogether in one piece. If it had been, rather than spread out to different days spread months apart, these family members could have been recalled to resolve any inconsistencies between what they testified to and what other witnesses testified to. By the time some witnesses testified, they couldn't be recalled.
Cross-examination of inconsistencies and contradictions between testimony is a vital part of full answer and defense. The right to full answer and defense is a pre-Charter common law right embedded in principles of fundamental justice judicially constructed well before the Charter.
The failure of the Bench as the Court was to protect this right in common law within its scheduling of the trial testimony. As it is, the scheduling made it impossible to fully exercise this right.
Scheduling the trial into days spread months apart made it impossible to conduct any cross-examination of the complainants about clear contradictions in other Crown witness testimony.
When it’s impossible to cross-examine three of five Crown witnesses due to a pre-trial agreement and due to court scheduling, something’s seriously amiss. That this raises sections 7 and 11 of the Charter is yet another matter. For, though the Charter has gone unmentioned throughout this trial, serious Charter issues are invoked by the pre-trial agreements.
………..
That’s all for today, folks.
Wednesday 29 October 2014
HOW TO CRIMINALLY CONVICT THE INNOCENT IN CANADA: PART II
A few days ago I posted Excerpts from an Open Letter sent to Metropolitan Tikhon and the Holy Synod of the Orthodox Church in America (and many, many others). That excerpt examined the ‘ruling’ that convicted an internationally known and greatly esteemed and loved Orthodox Archbishop, +Seraphim, for a recalled ‘crime’ that, if it ever took place, occurred in 1985.
I refer you to http://archbishopseraphim.org/ to see just how esteemed and loved +Seraphim was and is within the Orthodox Christian Community.
At no time was the hierarchy of the Orthodox Church in America ever informed of the nature of the non-criminal allegations that the mother had made in 1986/87/88 to her parish priest, Fr. Kostoff.
Not only did Fr. Kostoff not bother to inform OCA authorities, he also never bothered to find out if her claims of grossly inappropriate behavior in 1985 or 1986 were supported by anyone besides her.
For instance, Fr. Kostoff never then spoke to the twins themselves about what she was telling him in those years. Nor did he speak with Fr. Seraphim. Nor with the priest who then lived at the same residence as Fr. Seraphim. Nor to anyone else in Winnipeg who actually had interacted with either one of the visiting twins or, for that matter, with the teen who visited from North Carolina in July 1985.
I can’t hold against him that he never spoke with this teen about her allegations because, by not bothering to look into anything, he remained utterly unaware that one of the boys she was talking about was that teen--one of the boys referred to in a ‘deemed’ 'defensive', apologetic letter ['deemed as defensive by Fr. Kostoff, of course)].
I do wish Fr. Kostoff had bothered. And, let me add here that Fr. Kostoff’s sworn trial testimony shows that she had never claimed any physical contact like sexual touching in any of her conversations with him over 23 years earlier.
Today, I am attaching, “Anatomy of a Trial” (about 25 pages), written by my wife and myself to Orthodox Christians who wondered what had happened during the trial. This ‘Anatomy’ was written for, and widely circulated in, Orthodox Christian communities.
One comment we received stands out.
It recounts an old Soviet-era joke about a prisoner, arriving at a labour camp, being asked what he'd done to be sent up for 10 years.
“Nothing”, he said.
“That can’t be,” said the other prisoners. “For nothing, you only get five years.”
That this joke is now being told about Canadian courts casts them into disrepute internationally. That it has made Canada a laughingstock among those once exposed to Soviet injustice says a lot for how Canada’s reputation for justice in its courts has been damaged abroad.
***
ARCHBISHOP SERAPHIM: ANATOMY OF A TRIAL
Orthodox Christians in Canada and throughout the world were shocked and horrified when, in November 2010, criminal charges were brought against the long-standing Archbishop of Canada, Seraphim (Storheim).
Since then we have been essentially kept in the dark.
We were told nothing, and nothing was reported except what trickled through in the public media, much of it darkly biased.
We in the Church were instructed to not interfere with the legal process while the case was before the courts, and so we held back.
Over time, what slowly trickled through in the media only fueled our incredulity.
On January 24, 2014, the criminal court trial resulted in a guilty verdict on a person whom we do not recognize: a child molester who manipulated and intentionally abused children for his own gratification.
What did the court know that we did not?
When the court transcripts became publicly available earlier this year, we set out to answer that question. We read, re-read, researched, analyzed, discussed, and mulled over nearly 800 pages from preliminary hearings, trial testimony, and the reasons for judgement.
Here are our conclusions:
- Our original heartfelt intuition that Archbishop Seraphim is innocent has been confirmed.
- There is no reasonable basis for the accusations of sexual assault.
- There are innocent explanations for all the evidence used against him (see final page below).
- The accusations come from one family and a priest with an axe to grind.
- The only “evidence” is oral testimony about events in the 1980s.
- The judicial reasoning in the verdict is flawed and blatantly biased.
- Testimony was distorted, misrepresented, or disregarded by the trial judge.
- There are multiple grounds for appeal.
- The verdict was political, not juridical, and the final outcome in Canada's courts remains to be seen.
PRIOR TO ALL THIS:
Archbishop Seraphim began his ministry as an Anglican priest. In 1978 he converted to Orthodoxy, and was ordained to the priesthood in 1979 while studying at St. Vladimir's Seminary in New York, where he received a Master's in Theology in 1981.
He lived for a year at New Valaamo Monastery in Finland, then was assigned to parishes in Edmonton, North Carolina, and London, Ontario. Among the families in the London parish was a single mother with twin boys.
In December 1984 Fr. Seraphim was sent to Holy Trinity Sobor in Winnipeg's North End, where he served until June 1987.
In 1987 he was tonsured a monk, with St. Seraphim of Phenarion as his patron saint. At that time, and since Archbishop Sylvester's retirement in 1981, the Canadian Archdiocese was under Metropolitan Theodosius as its administrator (following the precedents of Metropolitans Iriney and Leonty in this capacity). Later in 1987 Seraphim was appointed as Auxiliary Bishop of Edmonton and Vicar to the Metropolitan for the Archdiocese; in 1990 he was elected ruling Bishop of Canada; and in 2007 was made an Archbishop.
During his years of leadership, he traveled constantly, both within Canada and internationally, and at a time when religious affiliations were in decline, the Orthodox Church in Canada blossomed.
CONTENTS:
2 Trial Testimony: Archbishop Seraphim
3 Trial Testimony: Supporting Witnesses:
3 Connie Kucharczyk
4 Esther Juce
4 Jason Rodgers
5 Note re the Teen from North Carolina
5 Note re Fr. Evan Lowig
6 The Verdict: Reasons for Judgment
6 Judge's Analysis:
6 Similar Fact Evidence
7 Innocent Collusion
7 Contamination of Memory
8 Admissibility of Evidence
8 Apology Note
9 Fr. Kostoff
14 Connie Kucharczyk
15 The Accused
19 Nudity in the Rectory
20 Credibility of the First Twin
21 Credibility of the Second Twin
21 Credibility of the Mother
22 What Quite Possibly Happened (An Innocent Explanation of Events)
TRIAL TESTIMONY: ARCHBISHOP SERAPHIM
[Page numbers from the original transcripts are given in square brackets.]
Archbishop Seraphim has maintained throughout the trial, and continues to maintain, that he is innocent of all criminal charges.
While he was the priest at Holy Trinity Sobor in Winnipeg (Dec. 1984-June 1987), Fr. Seraphim lived in the rectory next door: a large 2-story building with a parish hall on the ground floor and two suites of rooms on the second floor. Fr. Seraphim had several rooms at the top of the stairs, and another priest, Fr. Evan Lowig, lived in several rooms at the other end of a long central hallway. [21-25, 45, 64-65]
During a phone conversation with a former parishioner, a single mother in London, Ontario, Fr. Seraphim mentioned that the 13-year-old son of a friend from North Carolina would be visiting that summer (1985). It subsequently ensued that her twin boys, then aged 11, would also visit; originally both together, then because of paper routes and gardening duties, they would visit separately. [25-28]
The teen and the first twin both stayed about 2 weeks, arriving and leaving at about the same time, within a day of each other. [29]
A high point of the boys' visit was when Connie Kucharczyk and her father invited the three of them to their family cottage on Falcon Lake for two days. [30-31, 59-60, 63]
Archbishop Seraphim confirmed that, during a Bible study with both boys in the living room of the rectory, there had been a discussion about puberty. [36-37]
(Pre-trial agreements established the time of both twins' visits as the summer of 1985, but subsequent evidence has definitively placed the second twin's visit as coinciding with the visit of Metropolitan Theodosius to Winnipeg, when he ordained Dennis (now Fr. Alexander) Pihach to the diaconate on July 20, 1986 (see “NOTE RE FATHER EVAN LOWIG” below.) The second twin therefore visited a year later, in July 1986.)
During the second twin's visit, Archbishop Seraphim said it appeared to him that the boy was homesick and he returned home earlier than planned. [45]
At some point after the second twin returned home, there was a phone call from the boys' mother: “She addressed me in a very angry way. She said to me, 'I'm very angry with you. I sent the boys to study ... to learn scripture and not to be taught dirty stuff.' And then she hung up.” [49, 52]
After that he called back several times but she refused to speak to him again. [50-52, 92] His intent was “to try to make amends and find out ... what she was really angry about.” [51] “First to understand exactly why she was angry, and then to try to make amends somehow because I did not know for sure what she was angry about. She did not say explicitly what it was.” [92]
Some time later, 1988 at the earliest (when he was appointed Auxiliary Bishop), he was driving through London. He stopped at the house but no one was home so he wrote a several-page note and left it there. [53-55] “I wanted to make sure I conveyed my apologies to her and ask forgiveness ... [for] whatever it was that upset her... I used this phrase, this much I remember for sure, I probably stepped over a pastoral line.” [54]
During the boys' visits in Winnipeg they each had their own room, but they occasionally slept in the living room [because of the heat and there was at least a cross-draft there]. One slept on the couch, and Fr. Seraphim and the other at a distance away on the floor. [85]
He does not recall having a discussion about puberty with the second twin, who is “a more withdrawn sort of personality [who] doesn't engage conversation in the same way, or at least he didn't in those days.” [94] Asked if it's possible there were other things that caused the upset in relation to him, he replied, “That is beyond my understanding if there is.” [95]
(Other details from Archbishop Seraphim's testimony are given below in the judge's analysis.)
SUPPORTING WITNESSES
There were three supporting witnesses for the defence, all long-time friends of Archbishop Seraphim. Each expressed their shock upon first learning of the accusations, and each affirmed that to their knowledge there had never been anything inappropriate said or done by Archbishop Seraphim at any time.
TRIAL TESTIMONY: CONNIE KUCHARCZYK
She has been friends with Archbishop Seraphim since 1978 at St. Vladimir's Seminary in New York, as part of a minority of Canadians studying there. Holy Trinity Sobor is her home parish; her grandparents were among the founding members. In the summer of 1985 she was not employed but doing volunteer work in Winnipeg and other places. She attended church services 3-4 times per week, and often visited the rectory next door, where Fr. Seraphim and Fr. Evan Lowig lived. Each priest had a suite of rooms, but it was more like one big apartment, not a private closed kind of environment for either of the residents. [15]
The inside door leading upstairs was nearly always unlocked. Many parishioners had keys and would show up to fix something or just to visit, usually unannounced. [7-8, 23]
When Fr. Seraphim lived there a lot of neighbourhood children visited, it was a “fun, informal, casual atmosphere,” they would eat, watch TV, lie around the living room, laughing and just kids being together, it became “sort of a drop-in centre” [18], they “felt more comfortable; they were welcome.” [19]
She clearly remembers the teen and the first twin but somehow cannot recall the second twin. [7]
(Evidence uncovered after the trial explains this anomaly: that the second twin visited the following summer, when Connie was in Europe.)
While the two boys were there she took them out a lot: for burgers or pizza, a day at the zoo, museums, to the pool at her apartment building, and other sites that kids would like. [8] They were visitors and “one tends to offer to be kind,” [22]; especially since they were inner-city kids it was only natural to give them a chance to enjoy some summer. It was “always both boys, [I] never took just one;” [22] she knew they were there about the same length of time, one arriving a day later than the other, “because I was there all the time ... helping.” [22]
They also stayed for several days at the house her father had built on Falcon Lake. They took walks and went swimming; her dad loved wildlife and took them out in his boat. They were thrilled because “it wasn't something that they ever did.” [9]
She found at her parents' cottage a thank you note written by the first twin (Exhibit 1), and another by Fr. Seraphim who wrote, “sorry for any trouble we may have caused.” (Exhibit 2) She explained that her late father was set in his ways and not used to children, and was concerned about issues like hand-washing after using the out-house. [11-14]
She also recalls Jason Rogers, a neighbourhood boy who was around a lot. He had a lot of friends and seemed to bring them too. [10]
She speculated that it was not unlikely her mother paid toward the expenses of the boys' air fares, since she was “always paying for everybody for everything.” [11]
TRIAL TESTIMONY: ESTHER JUCE
Also a St. Vladimir's Seminary student (1984-1988), she met Fr. Seraphim there and learned he was being assigned to Holy Trinity in Winnipeg. During summers home, she was involved in directing choir and other volunteer work, especially assisting Fr. Evan Lowig in serving outlying parishes while he lived in Winnipeg from 1982 to 1987. [28-31]
She visited the rectory 2-3 times a week to work on church music, newsletters, etc. She did not have a key but knew several parishioners who did. There were often other people there at the rectory. [32-34]
She testified that Fr. Evan travelled only on the weekends, often as only a day trip. “He was there all week if he was serving at St. Nicholas (Narol) and he'd be away on the weekend if to another place... But he'd always be there during the week.” [32-33]
She remembers the teen from North Carolina visiting Winnipeg because she knew him and his family from seminary. On one occasion he even invited her to a movie he thought she'd enjoy. [35-36, 44-45]
She does not remember either of the twins. [35, 45]
She testified that when she visited the rectory she would sometimes ring the bell, or would just walk in. The door was seldom, if ever, locked to the residence. [39]
She also said that there was perogy-making on Saturdays and sometimes other days as well; the woman in charge, Mrs. Mauring, would come up to the residence at many different times of the day. [39]
TRIAL TESTIMONY: JASON RODGERS
In 1985 he was a 10-year-old living near the Winnipeg church.
One day he noticed a bunch of kids jumping off the garage roof behind the residence into bags of leaves; he rang the door bell and let the priest know. Most of the kids took off, but Jason stayed to help clean up the mess. They chatted and have been friends ever since. [3-4]
He would bike by and talk to Fr. Seraphim maybe 4-5 times a week, including inside the residence, at different times both daytime and evenings. [4, 18]
Sometimes other kids were there, sitting around, watching TV, running down the hall, playing games, and sometimes there was food or snacks. People from the church also visited. [5, 20-21, 26]
He saw the other priest who lived there, Fr. Evan, “pretty much every time I'd go there; 85-90 percent of the time he would be there.” [5-6, 21, 26]
It was not a religious scenario; rather Fr. Seraphim was “a good friend that ... talked to me about the troubles that I would end up going through.” [6]
At that time Jason's parents were separated and he lived with his dad. Both his dad and older brother went to the residence and met Fr. Seraphim. [6-7]
He also knows Connie, who stopped by quite a bit; and other people from the church would often be sitting around and talking. [7-8]
He did not recall meeting any other children who were staying there. [14-15]
They did not discuss Scriptures or anything religious, basically talked about problems he was having; there were never discussions of a sexual nature. [9]
When he read about the allegations in the paper and then heard from some friends, his response was “It's crazy. Because as long as I've known him, he's never been like -- anything like that.” [9]
After Fr. Seraphim left Winnipeg, Jason visited him in Ottawa twice for about a week, when he was about 12 and again when he was 13 or 14. He always had his own room. [11-12, 23-25]
Jason was asked specifically whether he ever saw or heard anything inappropriate or suspicious about Archbishop Seraphim's behaviour, toward himself or others, in Winnipeg or Ottawa; and he replied “No” to all questions. [8-9, 12-13]
Over the years Jason has maintained a relationship with him, by phone or in person when he visited Winnipeg. He has since married and had children. [2, 13-14]
In those years of friendship Jason found that talking with him “helped a lot.” [14]
NOTE RE THE TEEN FROM NORTH CAROLINA:
The teenage boy, whose family Fr. Seraphim knew from North Carolina, also visited Winnipeg that summer (1985).
He was contacted by police but not called as a witness by either prosecution or defence.
(It is tempting to speculate what he might have said, but, given that he did not testify at the trial, his right to privacy is to be respected.)
NOTE RE FATHER EVAN LOWIG:
Fr. Evan lived in the other suite in the Winnipeg rectory at the same time as Fr. Seraphim, but since neither the police nor lawyers for the Crown or the defence were able to contact him, he was not a witness at the trial.
Each priest had a suite of rooms on the same floor, along a hallway that ran nearly the entire length of the building; the rooms (including bathrooms) opened onto this long hallway. Fr. Seraphim's public rooms were at the top of the stairs leading up from the ground floor, with his bathroom, bedroom, and 2 guest rooms along the hallway. Fr. Evan had 3 adjoining rooms at the end of the hallway; he had to cross the hall to get to his bathroom and had to pass Fr. Seraphim's rooms when entering or leaving the building. (Exhibit 3: Diagram of 643 Manitoba Avenue) [19]
Especially during the heat of summer, doors were nearly always open or ajar.
By all accounts Fr. Evan was there most of the time, travelling only on weekends to serve other parishes. On alternate weekends he served at St. Nicholas (Narol), being away from Sat. afternoon until Sun. evening; at the most he would sometimes be away from Friday till Monday (parish records would clarify this).
(Despite claims that Evan Loewig [sic] could not be found, we located him and I spoke with him by phone. He showed an amazing memory for names and dates (which others have confirmed), was genuinely concerned about the “sad and unfortunate” turn of events, and bears no ill will toward the Orthodox Church or Archbishop Seraphim, despite having since been removed from the priesthood. He confirmed that the first twin and the teen had visited at the same time; that everything had been “on the up-and-up” during the children's visits; and that the second twin had visited not that same summer but the following year, because he was clearly remembered as “tagging along” when Metropolitan Theodosius visited St. Nicholas Church in Narol on July 20, 1986. This fact about the second twin's visit has since been corroborated by photographs from that occasion, the ordination of Dennis (now Fr. Alexander) Pihach to the diaconate.
It remains to be seen what might be the impact of his testimony in forthcoming legal proceedings, because there are complex rules about admissibility of new evidence.
My one-hour phone conversation with him is legally inadmissible as “hearsay.” However my husband and I would welcome the opportunity to share with an ecclesiastical court the information that has been discovered.)
THE VERDICT: REASONS FOR JUDGMENT
In Canada a person is innocent until proven guilty. If the charges are not proven, or if there is reasonable doubt, they must be acquitted.
The right to trial before either a judge or jury is a Charter right. With emotionally-charged allegations such as sexual assault, a jury is more likely to be swayed by moral prejudice than an experienced judge impartially weighing the testimony against the presumption of innocence of the accused.
In this case, the judge assigned to be the “trier of fact,” Christopher J. Mainella, was a recent appointment (October 2012), previously serving 18 years as a Public Prosecutor. In October 2013, only one year after being appointed a judge, his promotion to the Manitoba Court of Appeal was announced by the federal Minister of Justice, Peter MacKay.
(Customarily it is expected that judges establish a record of cases upheld before being considered for promotion. There are ten judges on the provincial Court of Appeal, three of whom normally rule on a particular case. The same judge cannot sit at both a trial and its appeal.)
The evidence and legal issues are examined in detail in a 71-page ruling (also called Reasons for Judgment). It is a detailed and convoluted document, dissecting points of law and reframing evidence from various perspectives.
The ruling describes the law in effect in 1985 [3-6], agreed evidence [6-11], evidence in dispute [11-23], legal issues arising from the evidence [23-36], positions of the Crown and Defence [36-40], and analysis of witnesses [40-53] and of the charges [53-71].
(Scattered throughout the judgement are many examples of twisted logic and prejudicial reasoning. The judge's bias against the defendant became evident as the trial proceeded. Already during the summary arguments on November 1, he interrupted the defence lawyer to say, “I have to accept, I think, that he saw the accused naked” [46] and “... is there any reason I can't accept that he saw your client naked?” [47] This one uncorroborated assumption opens the floodgates to other more nefarious premises: that the nudity was as described, intentional, and repeated, and symptomatic of a host of other reprehensible attitudes and actions.
It is also noteworthy that during the summary arguments the judge interrupted the counsel for the defence over 130 times; he interrupted the prosecuting attorney only 15 times.)
JUDGE'S ANALYSIS: SIMILAR FACT EVIDENCE
Early in this case the judge ruled that the brothers' cases were to be heard together, rather than in two separate trials. The testimony of the twin brothers was deemed to be “similar fact evidence” that is relevant in three ways: (1) the commission of the wrongful acts alleged, (2) the credibility of the complainants, and (3) to rebut the defence of accidental nudity. [33]
(What is consistently not addressed are other issues: that there is no “evidence” per se, only “similar allegations;” that “similar fact evidence” is normally used in cases involving independent witnesses; if there is a distinctive pattern of behaviour or modus operandi, it increases the possibility but does not prove that the accused committed the crimes. In this case the “trier of fact” says he is making an impartial assessment; however there is no possibility of these witnesses being “independent” when they were not only brothers but young twin brothers, by their own admission “close,” living together in the same household, with the same mother and parental influences.
It is also prejudicial of the accused's innocence to state the purpose as “to rebut the defence of accidental nudity” rather than “to rebut or corroborate the defence ...” When later the judge declares that the twin brothers are “independent witnesses,” then of course the defence of accidental nudity is also quashed.)
JUDGE'S ANALYSIS: INNOCENT COLLUSION
Contamination or distortion of memories can occur, innocently or by intent. If not intentional it is termed “innocent collusion.” The judge's ruling concludes about this:
“I am satisfied that others such as [the first twin] or [the mother] or Fr. Kostoff did not affect [the second twin's] testimony... The examples of possible innocent collusion suggested by defence counsel are not persuasive... I am satisfied that [the twins'] accounts of what happened are truly independent.” [61-62]
(This is an especially interesting conclusion, given that an example of “possible innocent collusion” is that the first twin does not remember being at the Kucharczyk's cottage on Falcon Lake, but the second twin does remember it, incorporating his brother's memory as his own. The second twin testified that he remembers going fishing in a boat with Fr. Seraphim and an old man who “owns the whole lake.” [Preliminary hearing, Nov.17, 2011, p.68] This anomaly is dismissed in the ruling, because “not every trip to a lake necessarily involves going fishing” [62] and therefore Fr. Seraphim must have taken him fishing on an outing around London. This never happened; both twins testified that in London they saw Fr. Seraphim either at church or their home.
Other questions were raised about the distortion of memories, such as whether the brothers asked Fr. Kostoff when he called them in 2008-2009 to tell them what he remembered from the 1980s. [First twin, pp. 80-85] When asked directly, Fr. Kostoff initially denied that he had provided any details in his phone calls to them [31-32] but then admitted:
A: Didn't happen that way. Didn't ask me pointedly, What do you recall? I probably just -- I probably told them what, what I had heard from the mother.
Q: Whichever way it went, you did talk about what you recalled, what you'd heard in those days?
A: I did, yes. [33]
(Thus the case comes back to the mother's interpretation of events and her influence upon her sons and Fr. Kostoff.)
JUDGE'S ANALYSIS: CONTAMINATION OF MEMORY
“There is no evidence that the complainants changed the nature of their disclosure of what happened in the rectory over time.” [42]
(This disregards that originally in the 1980s there were only vague allegations by the mother, with no mention of touching; but when Fr. Kostoff phoned the twins in 2008 he described what they told him then as “explosive.” [22] Clearly something had changed in their account of events.
In point of fact, there is no reliable record of what the twins originally said in the 1980s.
What is repeatedly disregarded is the role of the mother, in interpreting and reacting to whatever it was that took place in Winnipeg. It was to her, after all, that the boys told their version of events; as the first twin said, “... for her to be the judge of if it was right or wrong. And to this day I – we didn't know what was, if that was right or wrong back then ...” [27] It was also to her that the boys were trying to justify the second twin's insistence on returning home early.
There is significant dissonance between Archbishop Seraphim's account of Old Testament studies segueing into a discussion of puberty, and the mother referring to “sexual education” as “dirty stuff.” It is impossible that the twins' perceptions were not tainted by that type of parental attitude. The extensive scientific research on the contamination of memory points to this type of emotionally-loaded interaction as a source of distortion and misinformation.
Memory is not a static process, and memories are not like video recordings. Remembering is a subjective, creative process, and we are social beings. For all these reasons, memories can be distorted, embellished, and even created. Research has conclusively shown that there is no way to assess whether a memory is accurate or not without objective corroborative evidence. See the section, “Memory distortion and memory construction through contamination,” in the chapter “A Scientific analysis of other factors affecting the reliability of the evidence,” available online at http://homepages.paradise.net.nz/r.christie/5.html#C5_1_Memory_distortion_construction
Some very interesting and relevant experiments are described in “Misinformation effects and the suggestibility of eyewitness memory” at http://www.personal.kent.edu/~mzaragoz/publications/Zaragoza%20chapter%204%20Garry%20Hayne.pdf
There is also discussion in our Backgrounder of April 2014 about uncorroborated testimony and the fragility of memory: “Even if somebody is telling the truth, it may be they're telling the truth about a false memory – about something that didn't happen.”
The term “contamination of memory” was not used in this trial, even though considerable scientific evidence supports the concept and it is commonly accepted in court proceedings. In his ruling, the judge only speaks in terms of witnesses having a “poor,” “good” or “vivid” memory of events and details. Here, for instance, is one of his conclusions about the testimony of the second twin (who suffers from schizophrenia):
“Whatever occurred was real and is not the result of tainting, collusion, or collaboration with [the first twin] or another person. What [he] saw has been burned into his memory, despite the passage of time. [He] is not capable of making up such emotions. In that way he is a credible witness but not a sufficiently reliable one. As I said earlier, many parts of his evidence were odd, disjointed, and difficult to understand or rely on.” [61]
(The verdict on the charge relating to this brother was “not guilty.”)
ADMISSIBLITY OF EVIDENCE
Hearsay, what one person told another, is not legally admissible as evidence. Double hearsay is what someone says another person told them, for example, “She told him what the twins had said to her.”
Much time is spent during the trial on rules of law and what is or is not admissible. For example, Fr. Kostoff's testimony opens with a long discussion [1-8] about who is permitted to say what and about what. There were also several pre-trial agreements, mentioned during the proceedings.
JUDGE'S ANALYSIS: APOLOGY NOTE
After consideration of legal guidelines, evidence about the apology note from Fr. Seraphim to the mother was accepted, even though the letter was destroyed by her in the 1980s.
Archbishop Seraphim had testified about his intent and recollection of what he wrote [53-55]: “I wanted to make sure I conveyed my apologies to her and ask forgiveness ... [for] whatever it was that upset her... I used this phrase, this much I remember for sure, I probably stepped over a pastoral line.” [54] He did not think that he used the phrase Fr. Kostoff claimed to remember from the note, “teaching about adult things,” because “adult things is going farther than just talking about puberty.” [54]
The first twin was about 13 years old when the note arrived. Here is what he remembers of Fr. Seraphim's words and his mother's reactions: “... why are you hanging up on me ... not answering my calls ... he was just upset why, what happened ... throughout the letter [a] big part was about [the second twin] ... then the last page was ... if this was about me teaching the boys – on the lines of teaching the boys sexual education, I was just doing it to be a father figure... That was like a footnote... the very last paragraph of the letter, and that's when my mother just was really upset. That's when she just spitted.” [34-35, 93-94]
(Of course Archbishop Seraphim would be puzzling mainly about the second twin, because it was only after the second twin's visit that the mother became so angry. It's logical that he might think something had gone wrong that he wasn't aware of, because it was the second twin who asked to return home early. Or perhaps it was something from the previous summer, when that discussion about puberty took place during Bible studies with the boys (the first twin and the teen)? Archbishop Seraphim writing this makes sense in light of the mother's behaviour at that time.)
In Fr. Kostoff's testimony he described the note as “defensive, apologetic, but not mentioning anything specifically.” [18] It was several handwritten pages, and according to Fr. Kostoff the gist of the closing paragraph was “... I may have overstepped some boundaries with the boys -- thank you – teaching them about adult things -- I'm sorry.” [19, 29-30]
This testimony from the witnesses for the prosecution was taken as confirmation that something very inappropriate had happened in Winnipeg, and the judge's conclusion is, “Fr. Kostoff and [the first twin] gave evidence about the apology note which suggests it was more than a 'pastoral mistake,' as the accused put it.” [28-29]
(This element of “something more” opens the door to a more sinister interpretation in the differing accounts of events in Winnipeg. However, the differences in wording are subtle and hardly conclusive in arriving at a verdict of guilty.
In the 1980s sex was not a taboo subject, and both public and separate schools were teaching some form of “sexual health education.”)
JUDGE'S ANALYSIS: FR. KOSTOFF
Fr. Steven Kostoff was the parish priest in London, Ontario, from Oct. 1985 to June 1989. During the 10-month gap after Fr. Seraphim had left, the priest had been Fr. David Belden [misspelled as “Beldan” in the ruling.] [41 etc.] He was not called as a witness.
According to the judge's decision, Fr. Kostoff “... was both a credible and reliable witness ... had a good memory of events ... did not exaggerate or speculate ... His silence in not taking actions over the alleged abuse he was informed of in the 1980s troubled his conscience. His motivations to come forward, finally, in October 2008 are transparent and understandable... [40] He was seeking personal forgiveness and institutional transparency.” [60]
“Reliable confirmatory evidence from Fr. Kostoff in the form of the apology note and the accused's phone conversation with Fr. Kostoff in October 2008, confirms the credibility and reliability of [the first twin's] evidence.” [63]
And, “based on the evidence I accepted from [the first twin], as confirmed by Fr. Kostoff on key points, I am convinced beyond a reasonable doubt of the guilt of the accused.” [66]
(In the judgment Fr. Kostoff is deemed to be a credible witness, for reasons that are not entirely clear, and he is mentioned on nearly half the pages in the judge's ruling (27 pages out of 71). Fr. Kostoff's conscience and self-professed motives are accepted unquestioningly as those of a noble hero who set wheels in motion by urging these young men to come forward in denouncing a predator.
There is no acknowledgement of the internal Church politics impacting his motives and actions in 2008-2009 and influencing his opinions of Archbishop Seraphim's actions and words.
He was not challenged about what else he was telling the twins during these phone calls, or the misuse of his clerical authority in contacting them so many times (between 10 and 14 times) over nearly a year (Oct. 2008 – May 2009).
Nor is it questioned why even then, aware of what he called “explosive” allegations, he was interested only in actions relating to internal Church politics, with no apparent concern for the family's welfare or pastoral needs. He also insisted he never suggested they contact police. A naive layperson might wonder what issues of legal liability he thought might be involved.)
Fr. Kostoff's testimony was admissible with respect to three issues: (1) to establish that the allegations were “not of recent fabrication;” (2) the apology note Fr. Seraphim wrote to the mother; and (3) his phone conversation with Archbishop Seraphim in October 2008.
(1) In historic sex abuse cases, corroborating evidence is important in establishing that the allegations are “not of recent fabrication.”
(This does not discount the possibility that they might be of equally historic fabrication!)
Fr. Kostoff testified that “something” was disclosed to him at the family's home in the 1980s:
“... my whole family was there, my wife, my 2 children. And at some point during the evening, unexpectedly, [the mother] just kind of emotionally told us that Fr. Seraphim has done some terrible, horrible things to my children, to my boys.” [15] The details of what he was told are, by law, inadmissible as hearsay. There was discussion about admissibility during his testimony [16-18]; however, it was established that there was no disclosure at that time of actual touching: “... there was nothing said about physical contact.” [29] “[The mother] did not relate to me any charge ... about Fr. Seraphim actually touching the boys at that time.” [38]
(By the boys' own testimony they made no disclosure of wrongdoing to Fr. Kostoff at that time. The first twin's testified about this at the Preliminary hearing on November 17, 2011.) [31, 33, 34]
Q: When did you first speak to [Fr. Kostoff] about this?
A: I did not speak to Kostoff, my mom, my mom was speaking to Kostoff. [33]
Q: Did you personally speak to Fr. Kostoff about what happened in Winnipeg?
A: No, I didn't. [34]
(2) During that same visit to the family's home, Fr. Kostoff also read the letter of apology Fr. Seraphim had written to the mother, and testified as to what he recalled of the content and tone of that letter. His description was that it was defensive and apologetic, but not mentioning anything specifically, and said that he may have overstepped some boundaries in teaching the boys about adult things. [18-19, 29-30] Based on this testimony it was accepted as fact that the letter specifically said “boys,” meaning both twins. There was speculation about what this meant relative to the second twin, without any explanation or conclusion being reached.
(It is not acknowledged that Fr. Kostoff read the letter in the presence of a very distraught mother, who showed it to Fr. Kostoff as confirmation, even proof, that Fr. Seraphim had done “some terrible, horrible things” while alone with “her boys” in Winnipeg. [15]
This conversation took place at the dinner table, when the mother had invited Fr. Kostoff, his wife and their two young daughters. He testified that it was a very small house and all the children were nearby—his daughters, the twins and their sister—where they could have heard the entire conversation. [15-16, 24]
The memory of “boys” in the plural is either incorrect, or is context-driven by the mother's distress, or it refers to the discussion Fr. Seraphim had with the first twin and the teen from North Carolina. Obviously, for the mother “boys” would mean “her boys,” while from Fr. Seraphim's perspective it could mean his two young visitors during Bible studies that first summer.
Nor is there any mention of later events in the Orthodox Church that would most certainly influence Fr. Kostoff's memory and interpretation of the actions of Archbishop Seraphim.
So 21 years later ... )
In the next part of Fr. Kostoff's narrative, he says, “... over the years I felt very convicted by this ... and I resolved as a moral, spiritual principle, I was going to contact the family to see how they've been doing all these years, what impact this had upon them, and my main reason for contacting them was to apologize for my silence 21 years before. I wanted to ask their forgiveness.” [21]
He explained his reasons for not acting sooner: “... it was a particular era. This is a very taboo subject; it wasn't talked about ... I had no training in this area ... wasn't quite sure what to do. My church had nothing resembling a sexual abuse policy ... no mechanism or procedure to follow ... uncertain as to what to do ... ended up calling a, you know, respected senior archpriest ... seeking some advice, talking to him and ... ended up --- I just didn't do anything, much to my deep regret.” [19-20]
(He neglects to mention that, while his silence lasted 21 years, the Orthodox Church in America had implemented sexual abuse policies as early as 1994, policies that were updated in 2002 and again in 2013.)
He initially phoned the mother in London, Ontario, once or twice; he then “talked to the boys a few more times” between Oct. 2008 and May 2009. [21] When cross-examined about those phone calls, he admitted:
Q: At some point, though, you called [the first twin], I understand, quite a number of times.
A: Three or four times, I would say.
Q: Your statement, by the way, says that you called him four to five times ...
A: Four or five [and] I talked to [the second twin] more frequently, probably six to eight times, something... [32-33]
(This makes a total of between 11 and 15 long distance phone calls, purportedly to “apologize and ask forgiveness.” What were all these calls about? And what was being said?)
Q: ... they both wanted to know what your memory was of those days back then and things that may have been said or heard.
A: Didn't happen that way. Didn't ask me pointedly, What do you recall? I probably just – I probably told them what, what I had heard from the mother --
Q: Whichever way it went, you did talk about what you recalled, what you'd heard in those days ...?
A: I did, yes. [33]
(The first twin stated plainly, during both the Preliminary Hearing [27] and the trial [80-85], that he had asked Fr. Kostoff during these phone calls to tell him what he remembered. Fr. Kostoff only knew what the mother had told him 20-plus years earlier—a contamination of memory
In the end, the question is brushed over as to what was “disclosed” by the mother in the 1980s and what was “disclosed” by the twins in 2008-2009, and the judge seems to assume that nothing might have been added, distorted or embellished over the ensuing years.
Fr. Kostoff continues to minimize and downplay his role:)
Q: ... did you tell him, you think they should call the police?
A: I didn't tell them that.
Q: No. You asked them to write a letter of some kind, correct?
A: I didn't, I didn't ask them to write a letter, either.
Q: You sure about that?
A: Asked them to write a letter. I can't, I can't remember asking them to write a letter. I may have suggested that's one possibility if they'd like to write a letter ... something like that, but I don't, I don't remember specifically saying, Please write a letter.
Q: And is it not a fact that you contacted them a number of times to remind them about writing a letter?
A: I don't remember telling them to write a letter... 2008 to 2009. I, I don't remember telling them to write a letter.
Q: Or somehow asking them if they would?
A: I suggested – I could have suggested they could write a letter... I don't remember telling them to write a letter... I don't have a recollection of kind of calling to insisting or saying you must write a letter or should write a letter. I could have brought that up as a possibility. [33-34]
(I am appalled at this misuse of clerical authority and the undue influence being exerted by Fr. Kostoff, and equally appalled by his evasions and denials as to what happened. The first twin had testified clearly about the turmoil brought to the family by Fr. Kostoff's phone calls:
“... he was aware what happened. He apologized. He told us to write a letter to the Orthodox committee in New York of exactly what happened .... And it was just overwhelming. It was overwhelming... If it wasn't for Fr. Kostoff we wouldn't be here today.” [41]
This part of Fr. Kostoff's testimony does not relate to the criminal charges per se, but to the overall narrative of events leading to the trial, and also to his credibility as a witness.)
(3) Fr. Kostoff also testified as to the tone and content of a phone conversation when he called Archbishop Seraphim in October 2008. Soon after his initial contact with the twins, Fr. Kostoff spoke to two church officials and “upon their advice” he then called Archbishop Seraphim. [22] “... it was an awkward, terse conversation, and I was relating to him – I was, if I may say this, asked to relate what I had then been told, to apprise him of this situation, my awareness, and I did that in very, you know, general terms.” [22]
Asked how the Archbishop responded, he answered: “... very silent and noncommittal ... He did say, the mistake I made was getting too close to that family.” [23]
“I made a point of not mentioning any names,.. So that's, that's why I meant, you know, it was general. I, I didn't mention the names... I made a point of not mentioning the names, but I realized that he knew who I was talking about... based upon reacquainting myself with a family from the past, they told me you did some very inappropriate things with the boys, with family members, something of that nature.” [355-36]
Based upon this testimony, the judge concluded in his ruling: “The accused did not deny the allegations... [his] explanation to Fr. Kostoff for his conduct was: 'The mistake I made was getting too close to that family.'” [11]
(Of course it was an awkward conversation, and of course Archbishop Seraphim knew who he was talking about. Fr. Kostoff had been his successor in London, Ontario, where one family had openly made rancorous accusations about him. No leader is untouched by criticism, and Archbishop Seraphim remembers his failings as does any person of good conscience. He had done his best to help this family, but the mother never told him why she suddenly turned against him or what she thought he had done wrong. He would have surmised, and perhaps even been told by others, what might have been said about him.
“Silent and noncommittal” should not imply guilt by innuendo. It is entirely understandable that there would be a stunned silence when accosted out of the blue by the innuendos of someone who for 20 years chose to believe certain wrong things—the sinister accusation “I know about you.” But while ordinary blackmail requires proof, sexual improprieties involving children only needs some well-placed rumours.
There is a critical implication here: to say he “did not deny the allegations” does not mean he admitted them! Rather it means that Archbishop Seraphim remained silent when confronted by this accuser, and made no attempt to explain or justify himself to someone who for over two decades chose to believe accusations from this one family.
The judge's choice of words, “explanation for his conduct” is also prejudicial, implying an admission that criminal wrongdoing had occurred. We do not know what Fr. Kostoff was saying to the Archbishop during that conversation, or if it is being remembered correctly (only God knows what was actually said).
There was very little in Archbishop Seraphim's testimony about the phone call from Fr. Kostoff [55-56] and no cross-examination. He was questioned only as to the date and his response.
Q: ... his [Fr. Kostoff's] evidence was that he didn't really give you specifics but indicated that there was some allegation of some kind ... that your response was, the mistake I made was getting too close to the family...
A: That's very likely what I said, yes. ... I felt compassion for this particular family because of the difficulty of circumstances they had in life ... so I paid more attention to that family in trying to support them and encourage them than I would to the other families ...
Q: Is there anything you regret ... about this whole episode that occurred in Winnipeg?
A: ... the thing I regret most is engaging in this conversation about puberty. [55-56]
(In assessing Fr. Kostoff's testimony there seems to be no understanding or even recognition of particular events in the OCA at that time, and how this would most definitely effect Fr. Kostoff's recollection and interpretation as a witness in this case.
For instance, when asked why he recalled the specific dates of his phone calls, he evaded the question: “The first conversations I did make notes and I – much to my deep regret, I don't know how I misplaced them ... I kept a log for a while and I just don't know what happened to it. Just misplaced it somehow, unfortunately.” [34-35]
However, anyone familiar with Orthodox Church history would recognize this date as just prior to the 15th All-American Council in November 2008, after financial scandals in the OCA for several years led to the resignation of Metropolitan Theodosius. One of the candidates as his successor was Archbishop Seraphim, long-standing secretary of the OCA.
Some details about this part of the narrative can be found in our Backgrounder of April 2014.
It goes without saying that the so-called “institutional transparency” that Fr. Kostoff said he was seeking has not been realized, but rather has led to institutional confusion, turbidity and distress.
After Fr. Kostoff's testimony and cross-examination, there was re-examination from the Crown attorney, during which he makes an extraordinary speech:)
Q: My learned friend [the defence attorney] was asking you questions about the 21 years [before] calling the family. You had said that there were external and internal factors that led you to call them. What did you mean by that?
A: Well, basically, from – beginning in the, in the nineties all the way up into the mid, early – you know, first decade of the 21st century there was a series of clergy sexual abuse cases that kept coming out more and more rapidly, almost exponentially within the United States, and it just brought the topic so much to the surface for me, again, hearing all that, and now the silence had been broken. There had been a silence for so long and now the cases were made more public. I started reading some literature about it and I realized how there's a culture of silence surrounding these cases, and least initially, and that began – it played on my mind. I was very aware of that.
My own church had a scandal beginning in 2005 up to 2008 and, you know, there was some – there was institutional defensiveness in there. I realized all these factors together, and within myself, I realized I owed this family that phone call. It was a moral, ethical, spiritual decision on my part. I had to call that family; I had to apologize to them.” [37-38]
(He implies that the “scandal” in his own church involved cover-ups of sexual abuse, and that he was acting as a force for good in the face of institutional defensiveness. In point of fact it was primarily a financial scandal, dragging the church through years of hideous political in-fighting. Archbishop Seraphim, as the long-standing secretary of the OCA, was the signator of many documents issued by an institution that was being attacked by many (including Fr. Kostoff) as thoroughly corrupt, which it was not.
And to apologize requires only one phone call, not a dozen.)
At a later point in his deliberations, the judge makes another conclusion with regard to Fr. Kostoff's testimony: “I also accept the evidence of Fr. Kostoff that the first disclosure to him of events in Winnipeg ... only came in January 1986 or 1987.” [41]
(While not critically significant, this is one of several discrepancies in the testimony. The mother said that she had told Fr. Kostoff about her concerns soon after the second twin's visit. The judge corrected this as meaning that the mother told Fr. Belden, who was the priest in London for 10 months after Fr. Seraphim's departure. However, since it has been definitively established that the second twin visited in 1986, a full year after his brother, the mother was right in saying that the priest she told was Fr. Kostoff. See final paragraph below, “WHAT QUITE POSSIBLY HAPPENED (AN INNOCENT EXPLANATION OF EVENTS)”.
Overall, Fr. Kostoff's testimony is taken as confirmation of events in Winnipeg, even though he was not there. The testimony of Fr. Evan Lowig, who lived at the rectory, was not obtained; the testimony of Connie Kucharczyk, who helped entertain the first twin and the teen for two weeks in Winnipeg, was dismissed as biased. On the other hand, Fr. Kostoff's name was mentioned throughout the ruling as confirming evidence of criminal misconduct.)
JUDGE'S ANALYSIS: CONNIE KUCHARCZYK
She is deemed to be a not credible witness, on the grounds that her testimony is biased, internally inconsistent, and unreliable. The judge concludes: “I don't say that critically to say that she was a dishonest witness. Rather, I have determined her relationship with the accused undermines the reliability of her evidence on material issues in dispute.” [44]
(In other words, she's not lying, just recalling events in a way that favours the accused.)
What does the judge say about that relationship? In analyzing her testimony, his opening statement is:
“According to the accused, he made a choice not to marry Ms. Kucharczyk before being ordained an Orthodox priest in 1979. It was rather obvious in her evidence that Ms. Kucharczyk has strong emotions of loyalty to the accused. Despite the fact that the accused decided not to marry her, when he became the priest at Holy Trinity in Winnipeg, she spent a great deal of her personal time assisting him with the church and its activities.” [43]
(WHAT?!? This is NOT what the testimony says. At no time was there even mention of a romantic relationship, in either her testimony or his. They had been fellow Canadians in an American seminary, and, as she says, have “been friends all those years.” [8] There were no questions during cross-examination about the nature of their friendship. Connie has had a life-long commitment to the church; her grandparents were co-founders; she attended full-time studies at an Orthodox seminary; Archbishop Seraphim is her bishop and friend.
What is stated in Archbishop Seraphim's testimony is that he had been an unmarried Anglican priest for many years; on his conversion to the Orthodox faith he studied for an additional year at St. Vladimir's Seminary, which is where he first met Connie Kucharczyk. Then, when he speaks about being ordained after that year of seminary, the issue of marriage is mentioned, presumably to make the point that, unlike Catholicism, celibacy is not mandatory but may be freely chosen. [7] He met many people during his time at seminary, and Connie's name is mentioned only in the context of her as a character witness, to establish the length and basis of their friendship.)
“During her evidence, she made a telling comment on cross-examination. Despite professing to know the travel patterns of [the two boys] in 1985, to how much time they spent in Winnipeg together, a fact that would have been meaningless to her until the police contacted her in 2010, when asked about her own travel in that same period, she lacked any memory of details ... could give only the vaguest of specifics ... hard to remember ... what was going on in her life in 1985 was not a question she expected. That answer is telling. Why she would know the travel patterns of strangers [sic] 28 years ago, but be unable to speak of her own, is internally inconsistent and undermines her evidence.” [43]
(Her memories of the time in question included a number of occasions she entertained the two young visitors, and then an overseas job interview the following summer. Where is the inconsistency? Common sense says it was not the routine events of her life that were under legal scrutiny. Two events stand out for her in that time period. It was unusual for children to have come from out-of-province to visit, and entertaining two young boys was an unusual and memorable part of her volunteer service to the Church. And the job interview in 1986 was in Geneva, which would stand out for anyone.)
(And perhaps even, since none of the witnesses for the defence remember the second twin's visit, he was never even really in Winnipeg at all???)
The judge concludes: “When I look at her evidence about her interaction with [the two boys] in 1985, I am not satisfied it is reliable at all, except in relation to their visit to her father's cottage at Falcon Lake, given Exhibit 2.” [43-44]
(Ah yes, the thank you notes written by the first twin and Fr. Seraphim to thank Connie's father, Walter, for allowing them to spend a few days at his cottage on Falcon Lake.
The court seems willing to allow ONLY what is incontrovertibly proven, disallowing whatever goes against the Crown's presumption of guilt.
Why is this important? Because her testimony, if accepted, confirms the testimony of Archbishop Seraphim in several very significant ways, particularly that the visit of the first twin overlapped largely with that of the teen from North Carolina, thereby minimizing the amount of time Fr. Seraphim would be “alone” with the twin in order to behave inappropriately.)
The judge concludes: “... [other witnesses did not] volunteer gratuitous information, favorable to the accused, but irrelevant to the case. The same cannot be said for Ms. Kucharczyk.” [44]
(Considering that she was a character witness for the defence, how can testimony that is favorable to the accused be “irrelevant”? It is absurd to discredit a witness for being talkative; however, having read and re-read Connie's testimony, the only “gratuitous information” is in response to gratuitous assumptions by the Crown attorney.
Her testimony is “telling” primarily in that it attests to a life lived selflessly in the service of others.)
JUDGE'S ANALYSIS: THE ACCUSED
“I do not believe the evidence of the accused. I am also not left in reasonable doubt by the testimony of the accused. I reject his evidence in its entirety on the allegations.” [44]
The good character evidence provided by Ms. Kucharczyk, Mr. Rogers and Ms. Juce is acknowledged only as “important context evidence... However, I am satisfied that it does not help the accused. I am satisfied the accused was not credible about his behavior relating to [the twins].” [45]
“I am particularly impressed by Mr. Rogers's evidence. I have no hesitation in believing him that the accused has been a trusted friend for decades, and allegations of sexual abuse by the accused would be to Mr. Rogers, unlikely behavior ...” [45]
(What is not acknowledged is that Jason Rogers was a boy the same age as the twins when he first met Fr. Seraphim; that they became friends within the same time frame as the twins' visits; that Jason's father and brother made a point of meeting him (presumably to “check him out.”) And, perhaps most importantly, that the evidence of good character given by Jason is not just one person's testimony but that of the entire neighbourhood. His evidence is not merely his own personal opinion, but that of “the 'hood,” his entire community of young people in that very rough neighbourhood in Winnipeg's North End. There is no possibility that a predatory priest could escape detection and could operate freely and without repercussions in a neighbourhood like that.)
“I sat and watched the accused testify for several hours. He loves to parse words and concepts. He had a tendency to equivocate and be non-committal until challenged. It was abundantly clear as he answered questions in cross-examination that he is not used to being challenged when he makes a statement. Sometimes he would back down or change his evidence. Other times he provided nonsensical answers. What is important is during his evidence, he contradicted himself and gave answers that were inconsistent with other evidence I heard in this case that is reliable.” [46]
(1) “The accused was not consistent in describing his relationship with the family. He initially said he was “reasonably close.” When “confronted about his admission to Fr. Kostoff in October, 2008, that he had gotten too close ... he changed his evidence and admitted he had, in fact, gotten too close. He ultimately changed his evidence and testified that he began to think of [her] family as family.” [46]
(Changed his evidence? In the use of descriptors when responding to different questions about human relationships? These are subjective perceptions of interpersonal relationships, not objective measures of physical distance. Even then: How close were you to the fire? Reasonably close. And when you wakened in the hospital? Too close!)
(2) “The accused is a Biblical scholar with a Masters degree in theology. He has been an Anglican and Orthodox cleric for almost 40 years. One would expect he would have a firm grasp of the Bible. Instead, his evidence about the context for his sexual education of [the twin] changed over the course of his testimony... his 'best guess' was that the discussion ... [was] while discussing the books of Genesis or Exodus... this was not his recollection, rather, it was logic. When confronted that such logic made no sense ... he agreed and changed his evidence. He admitted it must have occurred during discussion of a different part of the Old Testament. Such errors might be expected from children in Sunday school, not from a learned scholar of the Bible.” [46-47]
(The errors and illogicality of these statements are mind-boggling. First, he is not a “Biblical scholar” in any sense of the word. Second, he is testifying to what he recalls of events, events that were of no unusual significance at the time, only speaking frankly with children about some of the many difficult passages of the Bible. As his own lawyer pointed out, Archbishop Seraphim made no attempt to "gild the lily" in his replies. He has been asked to testify to what he recalls, and his reply is that these are his “best guesses” as to how such a conversation might have come about. Had he wished, and were he less honest, he could have thoroughly researched scriptural references and quoted everyone under the table. Third, the questions asked in cross-examination were nonsensical, not a reasoned “confrontation,” considering what is historically written in the texts: from circumcision being a key feature of the covenant, to frequent references to 'uncleanliness' and sexual misdeeds by various persons throughout the Bible.)
(3) “The accused testified that his difficulty with [her] family is based on the mistake of teaching the boys about puberty... In cross-examination, he gave three different answers. His evidence changed and morphed over time.” [47]
(What is not acknowledged is that there are conflicting issues that were being raised: the discussion of puberty and sexual education during the first visit, and the subsequent uproar after the second twin's visit and trying to make sense of what could have precipitated that. He “changed his answer” because he simply did not know, then or now, what actually caused the mother's outrage.)
The second comment about the accused's testimony is that many aspects of it were implausible:
(1) “Despite his close relationship with [her] and her family, the accused claims he had no discussion with them about his transfer from London to Winnipeg until after he moved. As he was probed about this in cross-examination, he changed his story and admitted telling them, but he continued to try to suggest he had nothing to do with the idea of the boys coming to Winnipeg to visit him, despite confirming [she] was upset he was leaving London.” [48]
(Here the judge demonstrates his total lack of knowledge or understanding of Orthodox Christian values, culture and communities. Any priest, especially a mission priest as Fr. Seraphim was then, would make an announcement, such as his posting to another parish, after church, and news of this would spread quickly to anyone who had been absent. Pastoral relationships require a balance of both caring and detachment, and feeling more compassion for a particular family under one's pastoral care does not mean there is anything to “discuss.”)
(2) “... the accused said he had no idea of how he could have paid for the two complainants to visit Winnipeg... I have no doubt he would know which parishioners could be tapped financially to assist church affairs .. For the accused to claim he had no idea how to pay for such an expense is not believable, given the relative small size of the congregation.” [48-49]
(Archbishop Seraphim's reply was that he did not know, and everything else is conjecture. He agreed that travel to Winnipeg for both boys was expensive but, considering that the mother took her family to Serbia 3 years later, “... it's not impossible to think that she could manage to do this because she was frugal.” [68-69] The salary of many Orthodox priests in those days was quite small, and on his salary at that time “it would have been extremely difficult.” [69] As for “tapping” parishioners financially, Archbishop Seraphim has never been so manipulative or calculating a person as to use others in such a callous way.)
(3) “One of the accused's nonsensical answers was to suggest that [the mother] must have paid for the visit of the two boys ... because 3 years later, she had enough money to take her family to Serbia. The answer is nonsensical in many ways. First she was a single mother [who] had to work hard just to survive... Second, it is agreed ... [that] she refused to talk to him. How he would know her finances later, or her travel patterns, is unknown... the accused did not explain how he would have known about such personal matters ... Third, [the mother] testified she could not afford to pay for the trip of her two sons to Winnipeg ... Her knowledge of her financial affairs is a fact I have no difficulty in accepting as credible and reliable.” [49]
(Once again it is incredible how little the judge understands of Orthodox Christian culture and communities. Comings and goings, within a parish or even the Archdiocese, are not “personal matters.” If one person exhibits their wealth and another bemoans their poverty, over time the truth reveals itself. Archbishop Seraphim said when cross-examined, “... it's not impossible to think that she could manage to [pay the twins' air fares] because she was frugal.” [69] For Archbishop Seraphim to know the whereabouts and wellbeing of anyone in the Archdiocese is not the least bit unusual; in fact it is quite typical and characteristic, part of his personal caring and compassion that have made him so beloved as an Archpastor.)
(4) “Another implausible aspect ... relates to what [the accused] said occurred in his last conversation with [the mother,] when she said 'I'm very angry with you. I sent the boys to be taught scripture and not dirty stuff,' and then hung up.” The accused's statement that he was surprised by this is unbelievable. During his evidence, he claimed that discussing puberty in a Bible session was irregular and stupid. His claim of being 'surprised' by a parent being upset for discussing 'dirty stuff' with young boys and hanging up is not believable.” [50]
(Why would Archbishop Seraphim not have been astonished? Any normal person would be surprised at this sudden about-face by someone with whom they had been on good terms, someone who in fact had trusted and respected you enough to have sent each of her two sons by plane to visit in the summertime. Any person of good will whose intentions had been to normalize issues of puberty in a scriptural context, hearing it denigrated as “dirty stuff,” would be understandably surprised. That she then hung up and refused to speak to him again led to the realization, with the wisdom of hindsight, that it had been a stupid thing for him to do, given the backlash that ensued.)
Here is the context and continuity of Archbishop Seraphim's actual testimony:
Q: What was your reaction to that phone call ...?
A: I was flabbergasted. ... So I tried to contact her and apologize and try to make amends somehow. [50] ... to find out what, what she was really angry about ... [51] and upon reflection it must have been the discussion about puberty [52] ... wrote the letter to make sure I conveyed my apologies to her and ask forgiveness .. for whatever it was that upset her [54] ... realized it was one of the stupider things I've done in my life. [82]
(I am astonished that this is then described as “unbelievable.”)
(5) “A final implausible part of his evidence is that he was pretty sure that during [the first twin's] 2 week stay in Winnipeg, [the teen] was there almost the entire time, except for a day or so. This is an important aspect of his defence because if [the teen] was there to that extent, it would close the window of opportunity for the events that [the first twin] said occurred. I know from Exhibit 2 [the thank you note written by the first twin after the stay at the Kucharczyk family cottage] and the evidence of Ms. Kucharczyk, that [the 2 boys were] in Winnipeg at the same time .. for at least a weekend.” [50]
(Ah, that crucial “window of opportunity!” It must be not be allowed to be closed, by the presence of another young guest, or of another priest living on the same floor, or of parishioners coming and going at all hours! If this twin's testimony is to be believed, the incidents of Fr. Seraphim acting inappropriately occurred while they were alone, and therefore his visit cannot overlap to such an extent with that of the teen. This is the teen, by the way, whom he does not remember at all but with whom he went to the zoo and other sites of interest; and swimming in the pool at Connie Kucharczyks' apartment building; and to the Kucharczyk's lakefront family cottage, where they went boating, hiking and swimming; Connie told us later that the boys had even slept in the same double bed at the cottage.)
“The critical evidence on this point is that from Ms. Juce... on summer break from seminary studies ... came to the church 2 to 3 times a week ... also knew [the teen] because [his] father was in the seminary ... she visited [the teen] at the rectory and one time, the two of them went out to a movie. Her evidence was that no one else was staying at the rectory while [the teen] was there. She would have had ample opportunity to meet [the twin] at the rectory during his 2 week stay, if it had closely overlapped with [the teen's]. But she did not. Ms. Juce's testimony casts doubt on the accused and Ms. Kucharczyk's evidence that [the two boys] were together in Winnipeg, almost to the day. [The twin] did not recall [the teen] being in Winnipeg at all in his evidence. While he is incorrect about that, given Exhibit 2 [the thank you note he wrote], his evidence in light of what Ms. Juce says is more consistent with [the two boys] being together in Winnipeg for only the briefest of times, not almost the exact same period, as the accused suggested.” [50-51]
(How can a statement of not remembering be used to contradict the affirmations of two other witnesses? In his ruling [50] and already during the summary arguments on November 1, [60] the judge states that Ms. Juce's evidence was “there was no one else staying there that summer.” However that is NOT what she said. Here is her testimony under cross-examination by the Crown:)
Q: And as far as you know, when [the teen] was visiting for those couple of weeks, he was the only person who was visiting Fr. Seraphim?
A: Oh, I would imagine the neighbourhood kids would have been there too.
Q: So that particular summer when [the teen] was there you don't recall any other children staying at the residence with Fr. Storheim, staying overnight, living there?
A: No, I don't. [45]
(It is illogical to deduce what “she does not recall” as proof that no other children visited that summer, because we know they did. On the contrary, her recollection is of a busy place, not just the teen in a vacuum.)
She had testified earlier:
Q: And do you recall how often you saw [the teen] or how long he was there?
A: He was – he would have been there, my guess is a couple weeks, and we actually went out to a movie just for fun. ...
Q: Just the one time that you went out?
A: Just the one time, yeah. [35]
(She has a clear memory of him visiting because she knew him and his family, and because he invited her to see a movie. It is not surprising that she, mainly visiting and working with the other priest living in the rectory at that time, would not remember other children she didn't know.)
The judge goes on to say:
“I am satisfied that the accused was not forthright in his evidence. His testimony changed during the course of his evidence. He equivocated and was evasive at times. He simply could not explain himself on simple questions. For example, he said he overstepped a sense of compassion with [the family]. When asked why a priest could be too compassionate to parishioners, he simply could not explain the logic of his thought. Such an answer from a highly educated theologian and experienced cleric is nothing short of remarkable.” [51]
(Archbishop Seraphim did answer the question [55-56] and was cross-examined at some length, when he tried to explain the issue from a slightly different perspective. [72-74] His actual replies were, “I felt somehow more compassion for this family than ... other families I was in charge of ... more concerned about their welfare ... If I'm being a careful pastor [it's] kept in balance with the rest of the families ... as part of the professional balance.” [73-74] Again the court demonstrates a total lack of awareness of the teachings and values of the Orthodox Christian community. His explanations are in fact quite clear, as is his frustration at trying to explain faith-based values in a sceptical secular environment. The answer he gave to this question during cross-examination was from an ancient and profound spiritual tradition that is largely incomprehensible to anyone not living a spiritual life.)
To eliminate any hint of the possibility of any “reasonable doubt,” the judge concludes: “I do not believe the accused and reject his evidence entirely on the allegations.” [51] and “I do not believe the accused and reject his evidence entirely on the allegations... However [despite a fundamental breach of the rule] ... there is no such thing as a less than zero witness... I rejected the accused's evidence on the allegations in its entirety before considering the rule ...” [52]
(A “less than zero witness”? This, along with other derogatory and belittling comments made in this ruling, are appropriate only as demonstrations of the judge's prejudicial attitude toward the defendant.)
ANALYSIS: NUDITY IN THE RECTORY:
A key issue in this entire case is the accusation by the first twin, who described in detail how Fr. Seraphim disrobed almost as soon as they arrived from the airport, and throughout the visit walked about “naked” on a routine basis: “... first day when we're there, kind of got settled down and Fr. Seraphim, do you mind if I walk around with my clothes off... one of the immediate things he mentioned... It was very often... I mean just seemed like it was every day.” [12-13]
(What are we to think of such an assertion? Anyone who is familiar with the conservative Orthodox Christian culture knows that any priest or monk without his cassock would seem to be “naked.” Whenever Fr. Seraphim made pastoral visits to the boys' home in London he always wore his long cassock and pectoral cross, even, as he told us later, while going about on public transit. He most certainly would have worn his long cassock and cross to the Winnipeg airport. However it makes sense that he might have lighthearted advised his guests that at home he would be seen “naked.”
The judge disregards consistent evidence about open floor plans, visitors, workmen, various parishioners, and the multiplicity of keys, and the fact of another adult living on the same floor who is nearly always home; he disregards the implausibility, and absurdity, of Fr. Seraphim casually strolling about wearing no clothing at all, in order to arrive at this very twisted conclusion.)
Having accepted the twin's testimony about Fr. Seraphim's nudity, the judge concludes, “These intentional nude exposures occurred at times such as around breakfast, when the accused believed he would not likely be visited or seen by Father Loewig [sic], parishioners, or others.” [63]
(There is absolutely no evidence that Fr. Evan or others would be less likely to be around in the mornings. And, to repeat, what was overlooked during the trial was that Fr. Seraphim's rooms were directly at the top of the stairs; whenever Fr. Evan entered or exited his suite of rooms, at any time from early morning to late night, he had to come down the hallway and use the stairs beside Fr. Seraphim's kitchen and living room areas.)
JUDGE'S ANALYSIS: CREDIBILITY OF THE FIRST TWIN
It was on the basis of this brother's allegations that the guilty verdict was reached.
Newspaper reports summarized the judge's analysis of him as being “a successful businessman who had no reason to lie.”
(I see no reason why being a “successful businessman” would make someone a more honest and credible witness than, let's say, a faithful churchgoer or a successful archbishop. As to lying, how carefully were the issues examined as to why any witnesses for the prosecution might be not remembering or describing events accurately? I can think of at least two possible reasons why this brother might be less than completely truthful. That he has protected and covered for his twin brother so often and for so long that it is habitual; or that the lawyer he turned to for advice before contacting the police in 2010 had perhaps suggested that if someone were held responsible for his brother's mental illness, then a criminal conviction could be one way of settling the score, figuratively or financially.
ADDENDUM: In fact, the Crown attorney asked him directly, "Are you thinking or contemplating about any sort of lawsuit?" and he replied, "No." [46] This routine question is intended to add credibility to the witness, but it is not binding.
Details of the accusations made in the Winnipeg courtroom will not be repeated here. Suffice to say that the charges relate to two incidents of touching [sic] in a context of repeated casual nudity. Once the premise is accepted of a priest intentionally exposing himself, then it follows logically that other acts “with sexual intent” are deemed to be in character and believable. Without actual “touching” there is no “sexual assault,” and in law only one single instance of “touching” is sufficient to convict.
How did the accounts of events in Winnipeg become so distorted? One part of this twin's testimony about what happened when he was a boy is striking, significant and, to use the judge's expression, particularly “telling.”)
“I told her [my mother] what, what happened, and, and then after, when she gets a letter, her immediate reaction is, it's true, something did happen, sex, sex-related because he's mentioning about it and it was about sexual education, I'm teaching the boys. Vividly remember about the sex, sex education.” [35]
(It is not disputed that a discussion took place during Bible studies with Fr. Seraphim and the older boy from North Carolina. The Pentateuch, the Old Testament, the entire Bible, is filled with real life: from the Covenant of Circumcision, adultery, incest, childbirth, bodily emissions, both male and female. In the re-telling and in court these conversations and incidents were stripped of their innocence and recast with sordid overtones and implications.
ADDENDUM: He used the expression "father figure" repeatedly in his testimony. [7, 27,34, 50, 94; Preliminary Hearing 9-10] When he described his mother's reaction to Fr. Seraphim's letter, the red flag for her was not just "sex education," it was also the term "father figure." The mother had testified that her ex-husband was "... very, very abusive... alcoholic and abusive," [104] "threatening me with knife, with gun ... and the kids was very, very crying." [106] So as this twin recalls the wording of Fr. Seraphim's letter, "... if this was about ... teaching the boys sexual education, I was just doing it to be a father figure ... and that's when my mother just was really upset. That's when she just spitted... when she was furious." [34-35]
As already noted, scientific research on the contamination of memory conclusively shows how inappropriate, emotionally-loaded interactions lead to distortion and misinformation. See commentary in the section “JUDGE'S ANALYSIS: CONTAMINATION OF MEMORY.”)
During this twin's testimony there was much discussion about the admissibility of evidence regarding his going for counselling, about 5 years before he went to the police. He remembers only that he went with his fiancée for two sessions before he was married in 2004 [37, 48], after seeing a priest who resembled Fr. Seraphim. [101] The judge concluded that the fact of going for counselling would be admissible but not the content (what was said), and then added, “I mean, you can draw an inference from the fact he decided to do it before he got married.” [37]
(Why only one inference? I can think of any number of others. How do we even know that he “decided;” perhaps he only agreed, or reluctantly went? He only says that his fiancée “was really confused on, on why I was reacting like I was” [102] and that he attended two sessions with her and did “talk about my past.” [Preliminary hearing, Nov.17, 2011, p.43-45]
Drawing the conclusion, “he decided ... before he got married,” would imply memories of sexual trauma that he associated with Fr. Seraphim. However, it is a common logical error to confuse correlation with causation, and there is an enormous difference between traumatic events and the memory of events (which encompasses his mother's and brother's distress); between a reaction to trauma and a reaction to a person, the long-buried bête noire. Perhaps the counselling was a pre-marital requirement, or maybe the fiancée had concerns about his mental stability ... or any number of other possible reasons. We simply do not know what this counselling was really about.
We also know that it was only two sessions, not the long-term counselling often associated with the PTSD of severe trauma and abuse. In the judge's own words, “He had closed this chapter of his life and moved on.” [56] At least, that is, until all the phone calls from Fr. Kostoff.)
The second twin and the boys' mother had little to contribute in the way of viable testimony.
In the ruling the mother's memory of events is described as unreliable, garbled, and contradicting even the known facts of the case; the second twin was agitated and barely able to testify. There were already inconsistencies in the testimony of the first twin, and between his trial testimony, Fr. Kostoff's testimony, and his own testimony at the Preliminary Hearing in 2011. Combining the different narratives only confuses the issues; it is impossible to reconstruct a coherent story from these contradictory accounts.
In considering the second twin and the mother, the judge declared that their emotions, however, were authentic and persuasive, despite their testimony being unreliable as to content.
JUDGE'S ANALYSIS: CREDIBILITY OF THE SECOND TWIN
Sadly, a lot of time is spent analyzing the testimony of the second twin, who suffers from mental illness (schizophrenia and/or bipolar disorder) and alcohol addiction. His testimony is described in the summary arguments as disjointed, distorted, and odd; “perhaps the oddest witness I've encountered ...” [Nov. 1, 2013, p.15, 35]
(His brother, the first twin, testified that he had heard him crying and screaming over the phone during his phone calls from Winnipeg, but there is no evidence that this actually happened as he remembers it, nor is there any confirmation that the “crying and screaming” occurred while his brother was in Winnipeg. Fr. Seraphim said that he overheard no such emotional outburst during the boy's calls home. There was mention by the first twin of his brother being transferred to a different school [105] but no other testimony about the onset of the mental illness that was diagnosed only years later. What is clear from the testimony is that the higher-functioning brother is very caring, affected by, and protective of his afflicted twin.
The ruling to not sever the two sets of allegations, but to hear them together, was for the reasons described above (“SIMILAR FACT EVIDENCE.”) Understandably, this brother's testimony was confused and confusing, with only vague claims of abuse. Parts of his evidence are used to corroborate the claims of his brother, the first twin, and to establish a “pattern” of intentional nudity and invitation to touch that the judge describes as “too distinctive to be coincidence.” [60] However this twin told the court that there was no “touching of a sexual nature” between him and the accused. [67-68] In the final analysis, the charges involving this brother were dismissed.)
JUDGE'S ANALYSIS: CREDIBILITY OF THE MOTHER
The judge summarizes the mother's evidence with bewildering logic:
“I found [her] to be a credible witness, but in many aspects, an unreliable witness... I am satisfied she told the truth ... but her evidence was in many way unreliable because of inaccuracies in recalling or recounting events ... had a poor memory of events ... could not recall if the two boys went to Winnipeg together or not ... While that affects the reliability of her evidence, it can be taken no further in affecting the weight to be attached to other witnesses in this trial.” [40-42]
(Like her sons?)
“That said, certain features of her evidence are very reliable...”
(Which would be? Wait for it ... )
“She was a poor single mother. She could not afford paying for her two sons to travel to Winnipeg. The trip had to have been financed directly or indirectly by the accused...” [42]
And the judge concludes:
“[She] was a sincere witness who did not embellish; however, the danger with her evidence is that she is an honest but mistaken witness on several points.” [43]
(The mother's role in events is downplayed and completely misrepresented, and her “danger” as a witness considerably more than stated. She is deemed a credible witness because her emotions while testifying are so obviously genuine, weeping and finding it difficult to speak, referring to these events from the past only as “the situation.” However she is deemed not a reliable witness, because her descriptions of fact are so garbled, even basic facts as to who travelled, when, and how, her testimony contradicting even known facts of the case.
Given that she is unreliable in the present, why is the impact she had on her young children not even considered? After the boys' trips to Winnipeg they talked to her and encountered an emotional reaction of hysteria, screaming and spitting. As the first twin described:)
“Well, [the second twin] arrived back from Winnipeg, it was a big emotional ordeal between myself, my brother and my mom ... “ [Preliminary hearing, Nov.17, 2011, p.36]
(The mother ended up talking about events indiscriminately, including after dinner at their home with a subsequent parish priest, his wife and their two young children, but “nobody help me for anything;” [99]“they didn't do nothing.” [122] In her testimony she described several occasions of seeking help for herself, not mentioning concerns for her children or any difficulties they might be experiencing. She blacklisted and anathematized their former parish priest by refusing to speak to him on the phone, then tore up and threw away not just Fr. Seraphim's apology letter, but all photographs from the boys' trips to Winnipeg. The family subsequently left the English-language parish to attend a Serbian parish, the mother even buying a car [sic] to be able to travel there.
I will say this as charitably as possible: if the mother is distraught, overly emotional, and not making sense of events in the present, what is the likelihood of her making sense of events for those children in the past? They were left to make sense of things as best they could—her one son, tragically, hardly at all, and the other perhaps a bit too much.
Scientific evidence is incontrovertible regarding the effect and impact by adults on children and on their memories of events. The mother can't speak about it, doesn't want to let herself even think about it, so how could she have listened and heard what her sons were saying back then? Even now she is appalled that a priest was, as she testified, “sleeping on the floor.” [124] I can only imagine her absolute horror at the suggestion that he was seen in a nightshirt or, God forbid, undershorts!
Given all this, it is indefensible that disputed and uncorroborated testimony be used in arriving at a verdict of guilty.)
_____________________________________
WHAT QUITE POSSIBLY HAPPENED (AN INNOCENT EXPLANATION OF EVENTS):
When the twins' mother hears about Fr. Seraphim's young visitor, she wants her boys to go there too, but realizes sending them together is not realistic. The first twin visits in the summer of 1985 and has a terrific time.
The next year, 1986, the other, shyer twin goes, but it's a completely different experience. Aside from the excitement of serving at St. Nicholas (Narol) when Metropolitan Theodosius visits, it's not very eventful. There's no other boy visiting, no Connie to drive them around and entertain with excursions and eating out, and no invitation to a lakeside cottage. Adding insult to injury, the rectory has become a drop-in centre for a lot of local kids, who intimidate and frighten him.
Increasingly uncomfortable, lonely, and homesick, he pleads to return home early. His mother agrees, but is angry at the wasted trip.
She wants to know what happened, what went wrong that he had to come home, after his brother had such a good time. We can only speculate what triggers her anxiety, distress and panic, and how she comes to think that Fr. Seraphim must have done something wrong. As the boys retell events about their trips to Winnipeg, the first twin might understandably try to “cover” for his brother so he doesn't feel embarrassed or blamed and in the doghouse.
So Fr. Seraphim being a “father figure” takes on a sinister new meaning, especially when “sex education” is mentioned. She phones Fr. Seraphim and tells him off, then hangs up and refuses to speak to him when he calls back. She tells people at church and their priest, Fr. Stephen Kostoff, and even phones church officials in New York, but is so emotionally overwrought that no one takes her complaint seriously.
Some time later a letter arrives from Fr. Seraphim (now Bishop Seraphim), apologizing for whatever he did to offend and asking forgiveness, but this only reignites her outrage. When Fr. Kostoff comes to their house she shows him the letter: “See, I told you he did something wrong!” When read in that light, the note seems to confirm her suspicions that Fr. Seraphim had done something terrible.
The mother ends up leaving the English-language parish for the Serbian parish, even buying a car to travel there.
She destroys the letter and all photos and souvenirs from Winnipeg. The bête noire is buried.
Until ...
(A sad fact in this case it that it was brought to trial solely on the testimony of this one family. Being tried as a criminal case, witnesses were considered as autonomous individuals, with little regard for the interconnection and interdependence within the family system, and completely disconnecting the children's understanding of the world from the milieu in which this understanding developed. If this were a civil case, involving questions of child custody or estate inheritance, the family situation would be scrutinized and considered very carefully before judgement was passed.)
The victims' narrative is a family narrative: the “father figure” becomes the abuser; removing clerical vestments means “naked;” “sex education” is “dirty stuff;”and “teaching” becomes “touching.”
THE TRAUMATIC EVENTS DID NOT HAPPEN IN WINNIPEG, THEY HAPPENED IN LONDON.
About the authors: This summary and commentary was written by Jane Sminiski, based upon the publicly-available transcripts of the trial and verdict. She is a retired law librarian and researcher, with education and experience in world literature, psychology, theology, and pastoral counselling.
Her husband and editor, Larry Motuz, is the author of the Backgrounder (April 2014) and Open Letter to the Metropolitan and Bishops of the OCA (June 2014). He is a retired economist with some experience in legal advocacy at both provincial and federal levels.
For more information please contact LMandJS2@gmail.com.
****
My next post will raise matters that I, not being a lawyer, think need to looked at.
Some concern serious 'bench trial' procedural issues for Canadian law. These examine the extent to which pre-trial agreements entered into in this trial impaired both finding facts and severely breached the common law right to full answer and defense, a right that is a pre-Charter right but certainly protected by Sections 7 and 11 of the Charter.
Thank you all.
Subscribe to:
Posts (Atom)