Reporting for sexual assaults is extremely low across Canada and in Nova Scotia. There are a multitude of barriers for survivors of sexual violence to come forward, including the failure of the system to appropriately address these crimes or build any confidence among victims.
There is a misperception that the criminal justice system is a fair and impartial tool in its prosecution of all crimes, including sexual assault, and that there is an accepted intolerance by legal professionals to rely on rape myths and badgering in the trial process to undermine the victim or for a win.
However, the criminal justice system continues to be under-utilized by victims of these crimes because of a lack of trust in the process as well as the high potential for re-trauma by the system itself (sometimes as affecting or more so than the crime). Dalhousie Law Professor Elaine Craig effectively demonstrates there is room for improvement in the way sexual assault trials are conducted in both large and small ways in her book Putting Trials on Trial: Sexual Assault and the Failure of The Legal Profession.
In it, she highlights a number of cases exemplifying that the practice of badgering the victim by defence in order to invalidate the complainant’s testimony is still alive and well and often celebrated among some defence lawyers. There are ways to improve courtroom practices, as she explains, to be more trauma-informed as well as ultimately, more effective and just.
Canadian laws are very robust in their potential to protect victims of these crimes, but adherence to evidentiary provisions by defence, lack of consistent objections by Crown due to lack of confidence or knowledge, and inconsistent policing of courtroom practices by judges are among key issues affecting access to true justice for victims of these crimes. Craig effectively outlines areas for improvement including specific recommendations for defence lawyers, judges, Crown Attorneys, even the physical layout of the court room and importantly – the culture of the courtroom, a learned and reversible set of behaviours and practices. It is time to “confront the brutality of the system,” according to Craig, and to ensure that justice is in fact served for victims of crimes of sexual violence.
The following are some of the highlights from her book, but a thorough read is encouraged to understand the complexities of both these crimes and how the justice system can better respond.
— Stacey Godsoe
Background: CONTEXT OF THE SEXUAL ASSAULT TRIAL PROCESS
Victim is required to testify to prove a crime was committed (only crime where this is true) and to prove that consent was not given. Entire case relies on ability of victim to prove this, often without any guidance.
While there are laws about consent there are still inconsistencies among legal professionals on nuances of consent like “too drunk to consent” which inform a victim’s access to a fair trial.
Inconsistencies in understanding effects of trauma on victim and whether they will run/fight back… which can inform how defence frames their entire case.
Defendant not required to testify.
Defendant can be appointed a defence lawyer through Legal Aid and entire proceeding is designed around ensuring the accused has a “fair trial” – all is justified in this light.
Trial is designed to protect accused from being falsely accused which is actually extremely uncommon.
Victims do not have legal standing in the courtroom and are without publicly funded legal representation, a Crown Attorney is appointed to the case to protect public interest and safety but not to represent victim’s concerns (a Crown can only provide minimal information about the process, little about the case and nothing before a charge has been laid).
A victim only has access to legal representation when the defence makes an application for third-party records (section 278, designed to limit accused’s access to complainant’s medical, therapeutic records) and appointment of legal representation for the complainant in even these cases is still uncommon.
Victims are expected to repeatedly and publicly detail violating acts committed against them as well as defend their integrity as defence attempts to erode their believability to get case thrown out or force victim to recant to escape re-traumatizing effects of court proceedings.
Preliminary trial is often used (whether acknowledged or not) by defence to intimidate victim from pursuing case and to destroy credibility in eyes of judge/jury.
CULTURE OF THE COURTROOM
There is a denial among many within the criminal justice system that outdated practices (such as victim badgering) are still a factor in low rates of reporting and equitable prosecution of these crimes.
Despite robust protective measures found in Section 276 of the Criminal Code – (“Rape Shield Laws”) which require defence counsel to file an application seeking the court’s permission before attempting to introduce evidence of a complainant’s other sexual activity (intended to prevent the “misuse of evidence” of a complainant’s sexual activity for irrelevant purposes), defence continue to slip in this form of cross examination without permission in hopes that judge/jury having heard it (whether it is permissible or not, objected to or not) will influence the outcome, rattle the complainant and trigger judge’s stereotypical thinking.
Continued reliance of this form of cross examination is founded on old sexist rape myths like - o “Twin Myths” – i) discriminatory belief that women who are sexually active are less trustworthy and ii) the assumption that women with sexual experience are more likely to have consented to the sexual act at issue in the allegation; o Victim blaming (failure to raise a ‘hue and cry’, fight back or escape is interpreted as meaning she actually wanted it) is alive and well and fostered by many defence attorneys.
These practices often stand because there is a lack of intolerance among legal professionals including Crown Attorneys and judges who do not object to or sustain objections often enough – either due to their own unconscious biases or a lack of education on these protectionist measures.
The preliminary inquiry is often used as an opportunity for the defence to badger or “whack” the complainant in hopes that they will give up before the matter even proceeds to trial and/ or as an opportunity for defence to test complainant’s vulnerabilities to know where to apply pressure during the trial itself.
There is a continued reliance by the defence on abusive tactics like “whacking” including rapid fire, confusing or humiliating questioning.
Craig shows that this practice is alive and well among many defence lawyers and often even celebrated and advertised as an asset among “bulldog” law firms.
There is division among legal professionals about what the true purpose of the defence lawyer is: to get a “win” for their client vs. to access the truth during the trial.
“Whacking” and other aggressive defence tactics continue to be accepted because of the false belief that this approach protects the right of the defendant to a “fair trial” and that there are a high number of false accusations when there are actually very few.
The fallacy is that the very purpose of the trial – to ensure “fairness” and justice - is actually not met because of this culture of acceptance of unfair and sexist practices, which are not only traumatizing and inhumane but do not effectively access truth or justice.
Recommendations: DEFENCE LAWYERS
Craig uses multiple examples of defence lawyers making use of “courteous cross-examination” and that this approach is prone to yield better results.
Trauma-informed practices in the court room are not only more humane but can better uncover the truth.
Understanding the intersectional nature of each victim – sexual assault complainants are disproportionately from racialized, disabled, Indigenous populations and positions of low socioeconomy – these diverse victims experience further injustices by the adversarial system because of its foundations in patriarchy and colonialism.
Adherence to the two founding principles for defence attorneys: legality and respect for dignity in the courtroom are not always practiced. For example – some defence lawyers advise their clients not to tell them the whole story so they can remain “willfully blind” or they will be obligated to raise it in the courtroom. As well, attempts to eliminate the witness through intimidation undermines the rule of law and professional principle to uphold human dignity.
3 factors to help shift the legal profession to reduce or eliminate strategies that invoke discriminatory stereotypes or are unnecessarily aggressive:
Broad recognition within defence bar that the current and dominant practice of SA law perpetuates harms to complainants.
Acceptance that strategies aimed at humiliating complainants violate lawyers’ professional code of ethics.
More nuanced articulation of professional virtues needed among those who practice criminal defence law – instead of reductionist celebration of “bulldog” tactics.
Consistently question whether evidence being considered is reliant on legally rejected stereotypes. o Stop using preliminary trial as way to intimidate – this practice actually serves to undermine everyone’s right to a fair trial rather than protect the defendant as previously believed.
JUDGES
Can help eliminate stereotype-infused reasoning from the trial process.
Honour their duty to control the process of the trial and the pre-trial, ensure it is humane and prevent abusive cross.
Court needs to consistently reject applications to introduce evidence of prior sexual history AND object to (and sustain attempted objections by the Crown) inadmissible evidence within court proceedings.
Consistency in this will have added benefit of helping to reinforce and sanction pro-active behaviour by Crown as a way to help shift the culture of the court room.
Consistent rulings of inadmissibility and denial of applications that counter the criminal code.
“Admonishments” to the jury (to not consider inappropriate evidence when it is brought forward by defence without proper applications).
Intervene in aggressive/inappropriate cross examinations.
Maintain a humane courtroom environment (allow and encourage testimonial aids, breaks for complainant).
Ensure a deep understanding of sexual assault law. Judges often lack this or don’t adhere to what they know in terms of laws around “affirmative consent” because of deep-seated bias:
Education on the particular type of harm inherent to sexual assault vs. other crimes;
Nuanced understanding of consent – if a victim does not flee or fight back, this does not mean consent was given, consent needs to be ongoing; past sexual relationship to the accused is irrelevant;
Comprehensive understanding of sexual assault itself which can include acts other than penetration;
Disabuse of rape mythology including belief that sex for men is inevitable, responsibility to avoid rape sits with women otherwise it is seen as a “failure to resist.” Victims are not responsible for their own victimization;
Understanding that the impact of a trial within a sanctioned criminal justice system based on all of the above on the victim is that it is implied that no crime was committed and that any trauma the victim is experiencing is in fact their own fault which only results in increased trauma and shame;
Complainants have a right to a fair trial as well, including protection of dignity and assurance that the overseeing judge has an adequate understanding of the law and of the relational complexities of this crime.
Specific Recommendations on Training for Judges
Extend new Canadian Judicial Counsel requirement for new judges to attend a seminar on sexual assault law and gender equity to ALL judges (not just new ones) and that training be ongoing and not just limited to one seminar;
Need similar standards for provincial judges (many SA trials are heard in Provincial court, especially in rural areas);
Needs to be transparent and mandatory;
Needs to include social context of SA, gendered nature of SA, intersection of race and other social identities, myths and stereotypes and the effects of trauma and an examination of their own bias;
Federally – need to authorize the National Judicial Institute to be able to design mandatory training for judges and have syllabus publicly available;
Maintain independence of judges – by not publicizing who is taking what training – but have content of education available;
Look to expertise in the field to inform judicial training requirements (Adam Dorek and Richard Devlin have written a lot about judicial training);
Judges should be required to provide written decisions (would help ensure reasonable decisions with some public accountability).
Re-examine judiciary appointment process in Canada (among the worst in the world) and tendency to be influenced by political patronage.
PUBLIC PROSECUTION
Assign specially trained prosecutors who: understand SA law, rules of evidence, trauma, rape mythology and its influence on interpretation of law of consent, have confidence to object to unlawful admission of evidence, have a sound understanding of their duty to protect a fair trial (a good resource is “NS Practice Note on Sexual Offences”).
Confidently oppose unfair defence practices more often. Need to object to anything that does not comply with section 276 as well as any questioning that relies on any form of rape mythology.
Advocate for complainant and promote use of testimonial aids even when.
Need to better prepare complainants (without coaching) for the process – questioning, emotional toil, legalese, formalities (including “micro ceremony” of trial that has some importance in perception of complainant’s believability – dress, countenance, language…) – ALL reduces trauma and evens field for better justice.
Maintain their duty to protect BOTH parties and the process itself.
LAW SOCIETIES AND LEGAL EDUCATORS
Help shift the culture of acceptance (and celebration) of abusive courtroom tactics at its foundations – in the classroom.
Provide input and inform the body of knowledge in this sector including policies and sanctions to control behaviour of lawyers to help re-set professional norms.
Defence often proceed despite Crown objections and attempts by judge to intervene, there is a role for education of attorneys to change culture of courtroom and move to intolerance of these practices as unjust.
There is a need for better education around sexual assault and consent laws as well as social /emotional understanding of consent and rape mythology – affirmative consent, ongoing consent, sexual assault is not just penetration, myths and stereotypes that women can avoid rape, that men need sex (sex is inevitable), that if a victim “fails to resist” and does not flee/fight back… she wanted it.
INDEPENDENT STATE-FUNDED SPECIALLY TRAINED LEGAL REPRESENTATION FOR SA COMPLAINANTS
Complainants need more than the current allowance of representation only during applications for third party records (and beyond the new 4 hours of free independent legal advice provided by the province of NS – an important step in the right direction) and in addition to and separate from duties of the Crown for the purposes of:
Increased “standing” of complainant in the courtroom;
Providing key information to complainant about process before an offence has been reported or before a charge has been laid (outside of duties of Crown);
Liaise with police and Crown to provide timely updates to complainant;
Assist victims with Victim Impact Statements;
Explain developments of case;
Consider a state-funded legal representation program for SA complainants provided through the creation of Legal Counsel positions, rather than through legal aid certificate structure.
PHYSICAL COURTROOM
More trauma-informed, less hierarchical set up of room.
Consider a more equitable, less intimidating set-up where judge is not raised at the front, complainant should be allowed to sit (often has to stand to testify), potential for circular arrangement like in customary indigenous law courts.
Allow amplification of complainant’s voice so they do not have to work to be heard – trauma and general anxiety incited by the process itself can influence volume.
Encourage testimonial aids – partitions, video testimony…
Reduce archaic legalese and other non-essential formalities which tend to intimidate and confuse and do not add to the justice process.
Reduce displays of colonialism (coat of arms…) and patriarchy (portraiture of all white male judges) etc.
Putting Trials on Trial should be required reading in all law schools in Canada. It is an essential read for any legal professional engaged in sexual assault trials, any victim engagement service provider or anyone who wants to push the needle on reform of the criminal justice system for gender-based violent crimes.