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Public Policy Sources 25:
Prejudicial Treatment

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Basic prejudices

Prejudices are reflected throughout the Panel Report. When Donnelly says something, people just hear what Donnelly says (at best). When Marsden tells people things, the hearer often "learns" or "becomes aware." Even in addressing the issue of whether a relationship exists, the Panel cannot resist tossing in gratuitous prejudicial remarks such as "beginnings of psychological harassment."

Opinions, conjectures, rumours, and assumptions are regarded as valid evidence whenever they can be used to hurt Donnelly. Even such babbling as "couple knowledge" is regarded as valid evidence, so long as it supports Marsden. In short, it seems that Marsden has punched the right ideological and emotional buttons and this was sufficient.

Throughout the Report we find much cant and social commentary about power symmetries that male persons with any authority over female persons are supposed to feel guilt pangs about. In a case such as this, such material (even if valid) has little relevance, since the two versions are too far apart to depend on such nuances. Yet such material had great potential for reinforcing prejudices against Donnelly. This failed to stop the Panel from doting on this material to such an extent that real evidence on crucial issues is given far less attention.14

The framing fallacy

Whenever there are competing theories, evidence should be evaluated not according to whether it fits a particular theory, but whether it fits one theory much better than an alternative. Also, the alternatives must be clearly defined and understood. In addition, one should assign low potency to evidence that could have numerous credible explanations outside a given theory.

These principles were ignored by the Panel. First, the PR assumes many things to be probative by stuffing them into the frame of Donnelly’s guilt without considering reasonable alternatives. For example, the Panel notes that Marsden’s grades fell over a certain time period and attributes this to Donnelly’s current or past abuse, when there could be numerous other reasons for such a grade decline, such as course difficulty, lack of interest in subject areas, random variation, other personal problems, and just the distracting nature of the controversy in the Fall of 1995.15

Further, the Panel fails to consider whether things it was told make more sense if Marsden’s story is fictitious. According to Marsden, Donnelly elected to assault her in his office, even though she frequently visited him at his home. This is most strange if true. But it is not as strange if fictitious, since it could help Marsden’s case by making Donnelly conceivably guilty of abusing his office, to which bait the Panel dutifully bounded, not even wondering why the event in question is located in time only to the nearest month (PR, p. 6).

The Panel rarely puts evidence into the frame of Donnelly’s denial to see how it fits. Instead, the Panel often contends that their ability to stuff certain evidence into Marsden’s case indicates that Marsden’s claims are true. But the fallacy gets worse. When considering an alternative, the PR ignores Donnelly’s claim of no relationship, and conjures up a straw man of the breakdown of an existing relationship (PR, p. 16). The Panel then claims that their knocking down this straw man helps prove Donnelly’s guilt.16 This argument is not only unfair, but intellectually dishonest, since the Panel knew that Donnelly had claimed there was no relationship (PR, pp. 3, 19).

Selective emphasis

The emphasis on evidence changes greatly depending on the issue at hand, so that evidence that cuts two ways is allowed to cut one way only. This technique is invariably used to enhance Marsden’s case. The following are examples of this approach.

First, if the subject is Marsden’s reliability, she is a thoughtful, reliable person. If the subject is Donnelly’s supposed abuse, she becomes a truly pathetic creature unable to break off a 16-month relationship that is horribly distasteful to her and during which Donnelly assaults her at least 6 times, yet she keeps coming back for more.

Second, indications from a witness that Marsden was 50 to 60 pounds overweight, bloated in appearance, and with severe acne are indications merely of how badly Donnelly must be abusing her (PR, p. 15), but the PR fails to consider whether the timing is right, nor does it question whether Donnelly’s alleged pursuit of a person in the described condition was likely.17

Third, witnesses’ beliefs in Marsden’s story and credibility are cited as evidence for Marsden’s credibility, but are not cited as evidence of bias of witnesses that might reduce one’s belief in the reliability of their observations. Further, the Panel fails completely to consider the possible negative implication of a parade of believers who provide so little tangible evidence.

Fourth, the Panel is terribly concerned with the influencing of witnesses, for which it condemns Donnelly on speculation arising from someone having seen the potential witness go toward Donnelly’s office (PR, p. 18). Yet evidence of witness coaching by Marsden was shoved aside, even when volunteered by one of her own witnesses (see "Diversity of Witnesses Point: First Three Sentences").

Fifth, the witnesses are touted as being distant in the section dealing with independence of observation, yet closeness of witnesses is taken as a plus and emphasized much more strongly when the same witnesses endorse Marsden’s character ("Panel Paragraph 2," and PR, p. 15). In supposedly proving the existence of the relationship, Witness #4 is described merely as someone who worked with Marsden for six months, yet when cited on Marsden’s character, she is described as having known her for three years.

Sixth, prior hostility to Donnelly going back to the Hyack Swim club and Marsden’s not making the swim team is considered evidence of Donnelly’s bad character, but not evidence of biases or ulterior motives of witnesses and accusers arising from prior disputes (PR, p. 12).

Seventh, rumours and beliefs of a romantic relationship between Marsden and Donnelly are taken as evidence of an existence of a romantic relationship (despite indications that Marsden had fostered the rumours). Rumours and beliefs of Marsden’s stalking Donnelly are considered as evidence of a poisoned environment, an offense which persons creating the offense are summarily convicted without being asked to give any evidence on their own behalf (PR, p. 19).

Eighth, the Panel accepted at face value the charge that Donnelly just happened to harass Marsden the day before her closing speech (PR, p. 18). The Panel never noted that the coincidence was remarkable. As usual, there is no legitimate evidence that the alleged event took place, since the supposed witness never testified. Yet Donnelly was duly convicted on this charge without any of the judges even questioning the convenience of the timing.18

This asymmetrical approach to evidence analysis demonstrates that the Panelists were not really weighing the evidence. Rather, they were stuffing it into the framework of their preconceived notions. The supposed evidence analysis is little more than a facade for prejudice.

Argument from fantasy

The PR often gives the impression that this was a congregation of the faithful condemning a heretic. We find praise of harassment workshops and chastisement of Donnelly for not having learned the valuable lessons contained therein (PR, p. 20). Whether this deficiency is supposedly due to non-attendance, inattention, or hardness of heart is not made clear and really does not matter: the point is that Donnelly is not of the faith. A further indication of how far the Panel went in indulging the prosecution is reflected in the following paragraph:

Ms. Marsden stated that she felt that the Athletics and Recreation building, and particularly the pool area, was Mr. Donnelly’s territory in keeping with his position as Head Coach of the Swim Team. Ms. Marsden went on to state that, to a lesser extent, she has this feeling anywhere at SFU. While the Panel discounts Mr. Donnelly’s ability to exert significant influence on the academic side of the University, the perception remains. (PR, p. 19)

We could justify persecution of witches in the same way. Let us paraphrase: "While the Panel discounts these witches’ ability to cause diseases, the perception remains." Or why not even, "While the Panel discounts the existence of an international Jewish conspiracy, the perception remains." Yet here such argument from fantasy becomes evidence of Donnelly’s guilt rather than Marsden’s over-reaching. Nor does the Panel notice the hints of Marsden’s power-tripping attitude that are reflected in the above statement.19

Class guilt

The Panel reports that Marsden submitted in evidence a handbook publication called Gender Equity in Coaching. The Panel then tells us that

Chapter 6 of the handbook, "Sexual Harassment in Sport," deals at length with relationships between male coaches and female athletes. It notes that there is a high likelihood of abuse of power in such a relationship. (PR, p. 8-9)

Consider the following hypothetical example. An aboriginal person is on trial for killing his wife, and the defense claims she was killed by an intruder. Lacking evidence of planning, motive, or efforts at concealment, the prosecution claims that the defendant killed his wife in a drunken rage. The defense contends that the defendant was not a drunkard, was not drunk at the time, and was not a wife-beater. But in arguing for conviction, the prosecution presents a summary of a study showing that drinking and wife abuse are serious problems among aboriginal people.

Surely, the Courts would not allow such "evidence," but if they did, one can only imagine the cries of outrage that would spew forth from various friends of justice. Nor would the cries be inappropriate. Regardless of the merits of the "study," it should never be allowed in evidence, because of its severe prejudicial effect. One could reasonably conclude that a judge who allowed such material to be admitted was deliberately unfair to the accused.

But if equal justice is to be served, the same right to be protected from prejudice must also apply to male swim coaches accused by their former pupils. The material shows that not only were the amateur adjudicators exposed to extremely prejudicial material, but that fairness to the accused was conspicuous by its absence. The Panel’s citing of such "evidence" speaks for itself.

Intimidating behaviours

Another charge on which the Panel convicted Donnelly, and for which Stubbs upheld the conviction, was that of "intimidating behaviours." The charge consisted of various items supported by little or no evidence. For example, one claim was that Donnelly had telephoned Marsden at her place of work; it would take a presumption of guilt to infer intimidation from Donnelly’s merely having called, but what is worse is that there is no remotely reliable evidence that Donnelly called at all. The relevant passage goes

She [Witness #3] reported this [phone call] to Ms. Marsden who felt it was probably Mr. Donnelly. Subsequently, Ms. Marsden played for Witness #3 an answering machine message which she said was Mr. Donnelly: Witness #3 stated that the voice had sounded similar but she had no way to be sure. (PR, p. 17)

The holes in this "evidence" are abundant, but we need not go through all of them, since despite being led, Witness #3 failed to make a positive identification. Further, there is no proof that the comparison voice played by Marsden really was Donnelly’s voice. Finally, the citing of what Marsden "felt" as evidence is so bizarre that it demonstrates how snugly she was enpouched. Having shown the worth of this evidence, I will now turn to the last three paragraphs of this section in which the reasoning, conclusion, and gratuitous insult are displayed.

Only the allegation that Mr. Donnelly called Ms. Marsden’s place of work in an attempt to locate her is directly supported by testimony and evidence presented to the Panel. On balance of probability, and given further testimony and written submissions which go to a pattern of intimidating behaviour, the Panel concludes that this allegation is on balance of probability true. The Panel concludes that there is no evidence to dispute the allegation that Mr. Donnelly followed Ms. Marsden in his car.

Finding: Based on testimony and evidence, the Panel finds that, on balance of probability, the allegations of intimidating behaviours outlined in Ms. Marsden’s complaint are true.

The Panel is particularly disturbed by the ongoing pattern of intimidating behaviour on the part of Mr. Donnelly. (PR, p. 18)

We should be grateful that the Panelists have given such a clear window into their minds. The Panel claimed to have tested evidence for only one of the items, which evidence is patently full of holes: it depends on a voice identification that failed, would have been invalid even if it succeeded, and would not constitute proof of intimidation even if valid. The Panel finds Donnelly guilty of following Marsden in his car because of lack of evidence he did not do it, thus discarding the fundamental principle of presumption of innocence.20

Despite the absence of evidence and lack of hearings on these charges, Donnelly is convicted, merely on the Panel’s contempt for him. Their "reasoning" goes something like this: He is really bad, so he must be guilty of these additional things. This shows that he is even worse, so we are greatly disturbed at his continual bad conduct. There is a terrible illogic in all this because no matter how bad accused persons may be, it does not follow that they are guilty of any specific offense.21 Conviction in this manner demonstrates that fairness was totally absent.

Anything goes

Witness #3 was a roving expert, supplying the "couple knowledge" determination of the existence of the relationship from observing one member of the alleged couple. She also helped the Panel conclude that Marsden’s being overweight showed that Donnelly was molesting her. But it gets worse. She is treated as an authority on date rape, being cited as follows

Witness #3 states that Marsden began to open up to her in October, 1995, and confided details of the final incident of rape. Witness #3 also commented that in her experience, it was not unusual for a rape victim to delay reporting the rape. She described a friend who had been the subject of a date rape and had delayed reporting it because she’d felt that her story would not be believed. (PR, p. 16)

Though I find it difficult to express proper contempt for this "evidence," I will try. In the first place, the Panel shamelessly gilds the testimony with all sorts of attributions implying that what Marsden said is true. This is not even evidence of contemporaneous assertion, since Marsden claimed that she had been assaulted for the last time on September 3, 1995. Witness #3 has no expert qualifications in this area, so her opinion is not evidence.

The testimony described in the last quoted sentence is patently irrelevant to the case at hand, and enormously prejudicial. The mere allowance of such testimony shows that Anita Braha was not conducting a fair trial. Such testimony tells us nothing about Donnelly, but its use is highly informative about the immorality of Braha, and Panelists Hafer, Eix, and Hinds. The acceptance of such evidence speaks with authority about the leader who reviewed the use of such material "very, very carefully," yet could still assert that he was, "unable to imagine what further precautions the University could take to ensure that a party is accorded a fair and just procedure."22

Summary

As has been shown above, the Panel’s handling of evidence is biased throughout. This was shown by the pervasive slanting of evidence and through the use of extremely prejudicial material. The abuses indicate an effect, proving that the Panelists and their advisor were biased against Donnelly and contemptuous of his rights to a fair trial. Further, the abuses suggest a cause whereby the use of prejudicial material and interpretations gave the Panelists the illusion they were seeing cumulative evidence of Donnelly’s guilt when all they were seeing were reflections of their own bigotry.