Tudor Ciobanu - Beyond reasonable doubt | People of Justice 2022 Iași
Author: Tudor Ciobanu
I have a story to tell. It's not an easy story, but I think that it can help all of us in the long term.
The hardest decision in my career as a judge was one I took in a case of rape. A rape case in which the victim was assaulted by her father during multiple years, before reaching the age of 10. It was a case with lots of twists and turns, in which the evidence was often contradictory and in which I had to take on an active role, a very powerful one, in order to find a solution. The first thing that shook me when I got the file was the detailed description of sexual acts, made by a child of only nine years old. Some things that... No child that age should know of. The girl was removed from her family beforehand because the Social Assistance Department discovered that she was seriously neglected, dirty, sick, she had a cold and she was walking the streets.
That's how she got to a maternal assistant where she told what had happened. Not to mention that her family was a dysfunctional one, very, very poor, the father was an alcoholic, and the mother suffered from schizophrenia. Afterwards, after it got out, the child revealed what happened with the help of a psychologist. She told the story in therapy through writing, by playing with dolls and, after that, she wrote a declaration in front of the police. The case got to court. A first court date was established and...
When I talked to the defendant for the first time, he seemed to have the intention to admit the facts, but... He changed his mind right away when I asked him directly about the things he was accused of. He denied them. Still, I ordered the arrest of the defendant and, a short time later, I received a letter from the girl for the case file, in which she said that she had lied and that her father was innocent and we should let him go. Basically, at this point, the plaintiff and the defendant were saying that the deed didn't take place. Of course, the investigations continued. Usually, when it comes to these kinds of deeds, the recurring examination of minors is avoided, because there's the risk of retraumatising them.
But, in this case, I deemed it necessary. Especially since the video recording of the declaration that the girl first gave to the police had disappeared. I couldn't find out why, but it never made it into the case file. In addition to the girl's declaration, the recording captured her nonverbal language as well, which is quite important in these kinds of cases. We know that a traditional hearing, in the courtroom, wouldn't have been efficient, so we decided upon a procedure in which the parties, the lawyers and the entire court were in the courtroom and the minor was at the DGASPC headquarters together with the psychologist she already knew. All the questions were discussed in court and transmitted in real time to the psychologist, in order to be integrated into a discussion with the minor which we then watched from the courtroom. Then, the trial continued. Logistically, it was pretty complicated. But, here, the hard part fell on the shoulders of the psychologist who knew best how to get an answer from a minor.
Another difficult part was the fact that not even the experts could agree about the minor's honesty. The medico-legal experts that made a psychiatric expert's report, in a nutshell, reached the conclusion that the minor is lying. The report was debated at length during the case, through questions addressed to the committees and the doctors' examinations. On the other hand, the psychologist who was in contact for multiple consecutive weeks with the child told us that she exhibits signs of sexual abuse. Since, at that moment, I had no experience in such cases, I was conflicted and I couldn't understand the behaviour of the minor. I was thinking... How can it be... Why did she take her declaration back? Why would she do such a thing, if the declaration was true? How is it possible that experts can reach conflicting conclusions? Not to mention that the process of deciding was arduous. I had days where I caught myself thinking about it, even if I was on vacation. The principle that doubt is in the advantage of the defendant, in this case, seemed as a failure of the entire trial, as a last resort that I can reach out to, if there's nothing left to be done.
I was looking for certainty and I had an interior dilemma, a struggle that I wanted to materialize somehow, I wanted to clear the water and these things were more difficult, since the stakes were really high. In order to check my reasoning, I resorted to all the means that I could think about, including the Bayesian method of hypothesis testing that I'd learnt from a physicist, an advisor at the Ministry of Justice in the Netherlands, where he works on expert witness reports in complex criminal cases.
In a nutshell, the analysis wants to reach a certain probability that a certain deed took place. The percentage I got was about 97% guiltiness, but, anyway, this was just an instrument that helped me analyse the evidence better and to avoid judgement errors. This was what I wanted to avoid in the first place: judgement errors, like the confirmation biases we have sometimes, to give an example. Often, in the case of offences against the sexual life, the direct evidence is missing, the only witness being the victim of the deed. That's why analysing the evidence has to be adapted to the context.
Firstly, we have to respect the presumption of innocence, to protect the victims, and to find the right solution. We have to check the circumstances pertaining to the deed and, especially, the credibility of the declarations: for what reasons would an injured party make false accusations. From the studies in the field of psychology that I have consulted I found out, for example, about the Child Sexual Abuse Accommodation Syndrome: this means that the child withdraws the declarations he gives multiple times to protect himself from the emotions and the memories that came back with the revelations. In the present case, the withdrawal came together with other specific signs, such as juvenile delinquency, hypersexualization, various somatizations, such as infections of the urinary tract, for example, or the tendency to lie to the maternal assistant. The minor, in this case, didn't offer a logical and plausible reason for which she unjustly accused her father. We took her age into account, her inability to understand the meaning of aggressions at the age she had, namely under 10 years old. Basically, this represented the norm in her life. That's how she was raised. With those acts. Sometimes, a child is incapable of perceiving his abuser as a bad person. What does he do then? He blames himself. There were other important elements, as well: the fact that the girl got sick when she talked to the police and described certain sexual acts, the fact that the psychologist's report was produced a lot closer in time to the moment of the revelation and had much better arguments. On the one hand, this report and, on the other hand, the partial confession of the defendant made in the beginning and the fact that before the criminal investigation he didn't even pass the polygraph test. There were other elements, too, such as the declarations of the witnesses and even the existence of a motive for the crime: because the girl's mother, the wife of the defendant, told him before the start of the aggression that, actually, the girl is not his own.
Finally, I made a decision. I sentenced the defendant to 10 years in prison. That was also the decision of the Court of Appeal. The idea of justice implies, often, among others, the fact that there shouldn't be a difference between the judicial truth and the factual truth. That's the only time when a person feels that justice was made. Despite this, we, as judges, have no way of making this leap, from the judicial truth to the factual truth. Because this... This would imply that we could be present at the scene. Even if we were present at the scene, we would be witnesses, not judges of the case. These are the limitations of human knowledge and these are the conditions in which, sometimes, we have to do our job.
Sometimes, you feel the truth, before being able to put it into words. This case has also revealed the extraordinary power of love, the love of the pure soul of a child for his parent. Maybe out of fear, out of guilt, without justification, but above all out of love, this child was capable of forgiving anything her parent did and she felt like she had to protect him. However, we have to decide what is correct, because children grow up and they change their perspective on life. The perspective we form, together with the experiences we go through, helps us make these decisions. Those difficult decisions that we can't delegate, the same way I can't say that I don't want to judge a case. After all, we're all living our lives beyond any reasonable doubt. After all, I think it's right to have these doubts.
The principle of uncertainty in physics tells us that we have no way of knowing everything. None of us, mortals, is that type of Judge. Still, we make decisions through the lens of the experiences and the values that define us. This way, we are much more influential than we think. After all, we can see justice in a larger sense as the sum of all our decisions influencing those around us and giving them the freedom and the chance to be prosperous. In the end, on life's stage we're all Leaders for Justice.
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The People of Justice 2022 shows were produced alongside Decât o Revistă, a team of journalists who believe in the transformational power of stories.
Together with over 1,000 viewers, we imagined what a more just Romania could look like through vulnerability, empathy and the power of example. In each city we brought on stage lawyers, journalists, civic activists and artists whose true stories about justice: how we achieve it, what it means for justice, education, the healthcare system or our cities.
