Image Source: via Pixabay | User. WilliamCho

When Criminal Court Failed My Rape Case, I Tried Criminal Compensation

Roslyn Talusan

Criminal courts are notoriously hard on sex assault victims. So I went for something else.

Image Source: via Pixabay | User. WilliamCho

Sexual assault is a difficult crime to prosecute in criminal court. Survivors who seek justice are often left disappointed after going through what is typically a retraumatizing process. I was no exception— in my case, the Crown prosecutor withdrew the charge against the accused on the condition that he complete counselling on STIs.

It started in the back of a car with someone I had just met. One Friday night in February, we were fucking for the first time—consensually. I've always thought of myself as a responsible person, so given that we had only known each other for three weeks and were basically strangers, I made sure he wore a condom because I was scared of pregnancy and STIs. When he couldn't stay hard, he removed it.

He asked me to blow him, so I asked for another condom—he didn't understand why. He picked me up and put me on my back. I said no. He got on top of me, and I felt him slip the tip in. My gut told me I needed to remember that I said no, so I enunciated it each of the three times I said it again. No. No. No. He laughed at how scared I was. If he wanted to do it, he would've done it already. I told him I was on the pill, but I'd fucking kill him if he finished in me.

Then he raped me.

I remember my mind being completely silent when I got home. I went to the washroom, took a scalding shower, and went to bed. I spent the weekend taking as many yoga classes as I could handle, but I couldn't erase the feeling in my stomach that something horrible and fucked up had just happened. The following Monday, I woke up and called in sick to work. Then I called my doctor.

"Hi," I whispered. "I've just been sexually assaulted and I need to be tested for STIs."

As the initial shock gave way to panic, Google was my best friend. I was desperate to know what my other options were. One of the first results for "Sexual Assault Canada" back then was the website for the Ontario Criminal Injuries Compensation Board (CICB), a provincial, adjudicative tribunal that hears applications for financial compensation from victims of violent crimes. It's one of eight provincial tribunals that serve to provide balanced resolutions to civil disputes.

Victims can apply for compensation for pain and suffering, loss of income, and other related expenses to the crime. They award as much as $25,000 for single applicants and, in cases where there are multiple victims, the maximum lump sum is $150,000 between each applicant.

I didn't really know what to expect—I couldn't find a whole lot of personal testimony about the Board on the internet. The website made it seem easy enough: fill out this form, wait for them to screen in the file, expect to have a hearing, and then maybe, just maybe, they'd award me compensation for the suffering I'd been through.

Having filed a statement with the police that resulted in a charge being laid against my abuser, I had access to a caseworker from the ministry of the attorney general's victim/witness assistance program. She helped me complete and submit the 15-page application a few months after the assault. Once my application was found to meet the eligibility criteria, the CICB had me collect reports from my hospital, my counsellors, and my employer to support my claims.

The Board asks for details about the crime, the alleged offender/offenders' information including their address and relationship to the victim, whether or not it was reported to the police, the status of the criminal case if there was one, and details about the victim's injuries. As per the Board's rules, the alleged offender/offenders are entitled to participate in the process, should they so choose—usually, they participate remotely, and are not in the same room as the applicant.

Since he was a first time offender, and let's be real, because he was white (the Crown told me that he "didn't look like the type of person who walks into courthouses all the time"), there was a low prospect of him being convicted. When the Crown told me he took an STI course so the charge was withdrawn, I felt my world close in on me as I started to sob in my caseworkers office. I wasn't surprised, of course, but the weight of the disappointment and knowing that he would never be held accountable to the fullest extent of the law was almost too much to bear.

The Board waited until the criminal court aspect of my case wrapped up before they scheduling my application for a hearing. They told me that the "alleged offender" would be notified and given a copy of my file with my personal details redacted. The detective who investigated my case and laid the charge would be called in as a witness as well.

Although I was aware that the "alleged offender" would have the option to participate, the Board forgot to confirm that he agreed to testify despite its mandate to do so. As such, I went into that hearing unprepared, self-represented, and alone.

I learned after the fact that sexual assault crisis centres sometimes have volunteers who can accompany Applicants to their hearings. Applicants can also choose to bring a friend or family member for emotional support, or if they have access to one, can hire a lawyer.

At the start of the hearing, the adjudicating members of the Board outlined how they would make their decision. In contrast to the high burden of proof in criminal court where evidence must prove a fact beyond a reasonable doubt, most civil courts like the CICB apply a lower standard called the balance of probabilities. For me, this meant that I had to "tip the scale" in my favour, and that my evidence had to prove that there was at least a 51 percent probability that I was a victim of a crime.

Although they had already read the police report and my statement, the Board asked me to describe my sexual assault in as much detail as possible and to provide them with context around the relationship I had with the "alleged offender." I answered questions like did we communicate often, did I try to push him off, how many times did we make out in his car, and what position were we engaged in when he raped me without a condom.

Testifying was excruciating. As many sexual assault survivors who have had to go through legal proceedings can attest, the process is retraumatizing. It's dehumanizing to have invasively personal questions thrown at you so that a third party can judge the validity of your experience. Recounting the details of the worst night of my life was extremely difficult, especially knowing that the man who perpetrated my trauma was listening to my every word.

Hearings at the CICB are not recorded electronically, but the Board members take hand-typed notes during testimony—and the members I had were not very fast typers. I would often be interrupted and asked to slow down or repeat myself so that they could transcribe exactly what I had said. The "alleged offender" and his counsel were both given the opportunity to question me—for example, when did I know I had been raped, why didn't I just go home, was I on drugs, etc.

After the Board was satisfied with my testimony, the "alleged offender" swore on the Bible to tell the whole truth and nothing but the truth. His testimony was wildly different than mine, going so far as to accuse me of giving him chlamydia. Words cannot describe how infuriating and insulting it is to hear your abuser use rape tropes to blatantly lie about what happened when you are 100 percent certain about what you witnessed. I knew the Board had already seen my hospital records and bloodwork that came back healthy and most likely knew he was making it up, but I still felt sick that someone could lack the integrity to the point of fabrication.

In the last portion of the hearing, the detective on my case testified. The Board questioned her on how consistent my testimony was with my original statement—"bang on," she said. My credibility was not the reason the charge was withdrawn, she noted. She laid the charge because she believed that it happened, and she still believed that it happened. I could have cried.

The police witness was dismissed, and the Board muted the teleconference so that they could hear about my physical and emotional injuries in private. While I had felt numb throughout the hearing, I cried while talking about the trauma out loud to a couple of strangers with what felt like my life in their hands. Articulating the extent of my emotional injuries was difficult—vocalizing it made it real.

I sat outside in the lobby while the Board deliberated on the case. After about 15 minutes, I was called back into the room to hear the members' decision, and the "alleged offender" rejoined remotely. The ruled that they believed me, and in one of the most gratifying moments of my life, found me to have been a victim of a sexual assault perpetrated by the "alleged offender." It took about two months to receive the written decision and cheque in the mail.

Was it worth it? No, and yes. On one hand, the emotional torture of having to testify was not worth the small sum of money I got, and could never undo what had been already been done to me. On the other, hearing the "alleged offender" blatantly commit a lie to public record, and have him hear from a legal authority that yes, he indeed victimized me were two of my favourite moments of 2016. For someone who had just been denied justice through criminal court, it was satisfying to have a legal body rule in my favour.

Ultimately, I think that the Ontario Criminal Injuries Compensation Board can be a benefit to survivors of violent crimes. But it's up to the survivor to make their own decision. There is a long, arduous, and bureaucratic process involved in getting that compensation, and it's retraumatizing. I wouldn't recommend it unless you have a strong support network. If you have the resources to go through with it, it can be a source of validation and justice for a crime that is so rarely recognized for how awful it is.

Follow Roslyn Talusan on Twitter.

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