How the System Can Better Respond To Sexual Assault Trials

The Ghomeshi trial made women feel like it was the complainants—and not Ghomeshi—who were charged with crimes. If the system isn't here for survivors of sexual assault, what can be done to fix it?
February 19, 2016, 3:00pm

Even as we wait for the Crown's decision, it's clear that the Jian Ghomeshi (pictured above) trial is revealing how Canada's judicial system deals with sexual assault. Photo via Flickr user Canadian Film Centre

We were filing out of the second overflow room in Toronto's Old City Hall courthouse where we'd been listening to a live stream of the Jian Ghomeshi trial. It was the final day of the proceedings, and Crown prosecutor Michael Callaghan had just delivered his feeble rebuttal to Ghomeshi's formidable defence lawyer, Marie Henein.

"In order to prove you were strangled, you must die," a woman with a neatly fastened gray ponytail and round glasses said loudly as she got up to leave the room. Others around her nodded their heads in agreement.

Ghomeshi pleaded not guilty to four counts of sexual assault and one of overcoming resistance by choking. Henein had just spent a week and a half tearing down the three complainants' credibility, repeatedly drawing attention to the fact that the women were in contact with Ghomeshi after they said he abused them, and asserting that they had lied to the court because they neglected to mention their continued relations in initial statements. The Crown said, in summary, that memory slips with time, and that Henein was reinforcing stereotypes about the ideal victim.

The verdict will not be announced until March 24. But given the way the trial played out, it has been proven, once again, that our legal system does not serve women. Survivors across the country are left asking, "Great. What now?"

So I spoke with Canadian feminists in law, politics, and activism, and they outlined some of the ways the system could better handle sexual assault trials.

Altering the System We Have

"The criminal system needs to revise itself to reflect the reality that sexual violence is really unlike other criminal acts that are codified in the criminal code," says feminist lawyer Pam Cross.

She has a few suggestions for changes to the system which, she says, would be fairly straightforward to implement.

The way the law is set up now, "victims" aka witnesses don't have the right to legal representation. The exception to that is when, during a sexual assault trial, the defence presents third party documents (i.e. therapist's records). The women who spoke out against Ghomeshi all had legal counsel, and if more survivors did, they could be advised on what the process will look like, how long it will take, what kinds of personal details will be exposed, and the kinds of questions they should be prepared to answer.

If they do decide to report, they'll be ready for it. Or, they can make an informed decision not to report if that course of action suits them better.

Lenore Lukasik-Foss agrees with this proposed modification. She is the chair of the Ontario Coalition of Rape Crisis Centres, and she says usually, those who report being sexually assaulted and who decide to take their case to court cannot afford lawyers.

"All [survivors] should have someone to guide them through this process," she says. "If Crowns and judges have better training on the dynamics of sexual violence, they can better interrupt a line of questioning that verges on whacking, or is whacking." ("Whacking" means vigorously attacking the complainant in a sexual assault case to wear them down.)

Ontario's action plan to stop sexual violence and harassment suggests that it will conduct a pilot project to test the idea of providing legal aid to survivors through the province, and Cross hopes the way this trial was conducted will expedite this process.

Alongside these changes, Lukasik-Foss says, the courts should bring in more experts to speak to the ways in which memory is impacted by trauma, as well as the plethora of behaviours one might exhibit following a sexual assault.

Creating Specialized Sexual Assault Courts

Cross says the provinces could follow the lead of pre-existing specialized courts, such as those that address mental health and partner violence, in order to implement sexual assault courts. The structure of the law wouldn't change in this case, she explains, but Crown lawyers, judges, and possibly police officers would receive more sexual assault-specific training.

"That way," she explains, "Survivors will be entering an environment where they can be confident that the people they're working with understand what they're going through."

This strategy will take, as Cross points out, both money and political will. There are some other problems with it, too.

Fareeda Adam is a criminal and family lawyer in Toronto, and she says reform is an "absolute necessity."

"It is difficult to say conclusively whether a specialized sexual assault court would offer the kind of reform necessary to prevent the victim-blaming culture that infiltrates sexual assault proceedings," she says. "Ultimately, the accused would still be subject to the same constitutional protections and the Crown would have to prove an offence occurred."

The real question, she says, is "How do you protect an accused person's constitutional rights while not disparaging and condemning the conduct of the complainant?"

Toronto's Jane Doe tells me she's not convinced specialized courts are the best idea, either.

"What's in place to ensure guarantee that the law will treat them any differently just because it's a sexual assault court?" she questions. She says it's likely the same lines of victim-blaming questioning will persist, even in sexual assault courts.

Creating a Whole New System

Almost two decades ago, Doe sued the police for negligence after a serial rapist attacked her in her bed late at night. Police knew the rapist was operating in the neighbourhood, and did not put out a public warning, so Doe sued them—and won. She's been saying the same thing for years: the system does not work for survivors of sexual assault.

"We need to praise women who have the courage not to report their rapes," she tells me over the phone. "The legal system doesn't work. Nine out of ten [survivors] don't report. They're afraid of the system." Of those who do report, only a low number see charges laid, and of charges laid, only a few trials result in convictions.

NDP MPP Cheri DiNovo told me a few weeks ago that the only way forward might be for feminists to create a new system entirely. "This [trial] has set women back," she says, "there's no question about that. Women who have been assaulted and abused will look at these high profile women get completely beaten up on the stand, and that's it."

Women and other survivors are resourceful, though. There is already a strong network of secret support groups and conversations happening amongst Canadian survivors of sexual violence. (These conversations look much like those 5,000 messages sent between Ghomeshi complainant Lucy DeCoutere and another complainant).

Underground, online "shit lists" are circulating. They identify rapists and other abusers by name, appearance, and MO. This is, and will remain, a secret network because it is illegal under defamation law. The legal status of shit lists, though, doesn't interfere with their effectiveness. Carly Lewis wrote a piece for Maclean's on publicly naming abusers after a shit list turned up in the bathroom of a Toronto club in the fall. She notes:

"For all the cultural progress we've made, the Sharpie marker—and its online equivalent—remains, somehow, mightier than the law. In fact, the online version of the bathroom wall is even more powerful: It can warn more women faster, but it can also change a person's reputation permanently and without an accuser coming forward."

Aside from these secret underground networks of survivors who have reason to trust one another, those wishing to handle the aftermath of sexual assault without going through the criminal system may also want to pursue counseling. Lukasik-Foss says many rape crisis centres currently have months-long waitlists for regular counseling sessions. Increased government funding and support, she says, is needed to make sure these services are available.

We Might Consider Restorative Justice

If we really want reform, Cross says, it's not outrageous to consider restorative justice, which is focused on the needs of all involved, rather than on punishing the defendant. In the past, she's hesitated to back this idea in cases involving violence against women. But now, she says, she realizes it might make sense.

"Very often, what a survivor is looking for is a process that makes [them] feel validated and in which they feel that the person who has caused them harm understands the impact of what they have done." She says restorative justice would also give the abuser a chance to apologize and to learn and change so they don't do it again.

What if Ghomeshi Gets Off?

Cross points out that survivors can still take the allegations through civil court even if their criminal trial doesn't work out. Cases in civil court are tried not on reasonable doubt, but on a balance of probabilities, meaning the judge hears both sides and decides which is most believable.

It's a cheap conclusion, but in the meantime, there's nothing to do but wait for the verdict.

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