WOMEN FACE TRIAL BY ORDEAL
Her name is known to few, but her case made headlines for years in Montreal.
In late 2011, an 18-year-old Concordia University student accused three McGill University football players of sexually assaulting her after she and a friend were invited to their apartment.
The allegations shook McGill’s administration — which was accused of trying to cover up things — and eventually led to the young men being charged in April 2012, and kicked off the football team when the case went public.
Then, in mid-November, new evidence — allegedly in the form of a witness statement that affirmed the sex was consensual — came to light and Crown prosecutors dropped the charges.
The victim had begged them to press on. “(The lawyers) didn’t listen to what I wanted at all,” she told Postmedia News. Now 21 and attending school in Ontario, the woman spoke on condition that her name — which was subject to a publication ban during the court proceedings — remain unpublished. “It’s very frustrating. It’s hard.”
She is one of countless women in Canada and around the world whose side of the story was not considered to be enough. When women recently came forward with sex assault allegations against former CBC broadcaster Jian Ghomeshi, there was swift backlash demanding why they hadn’t come forward sooner. It was in this context of vilifying the accusers that Montreal Gazette reporter Sue Montgomery initiated the Twitter hashtag #BeenRapedNeverReported, which went viral after tapping into simmering anger among women who had long stayed silent.
In the former Concordia student’s case, the dismissal of the charges was only the final blow in a long legal fight that seemed stacked against her from the start.
In the days following the encounter she visited a local clinic, where a rape kit was completed. But she says police forgot to have her sign the paperwork attached to the kit, making it inadmissible as evidence. She was also told the items she was wearing the night of the alleged assault weren’t needed, so she threw them out, only to have investigators inform her a week later they wanted the clothing.
She was never allowed to hear the version of events provided by the three men involved.
“It feels like you don’t have any rights at all, like you’re just floating through it,” she says. “I didn’t actually feel a part of anything that was going on. It is the accused against the state and I just become a witness.”
But even getting “there” — to the point where your case is before a judge — can be a gruelling uphill battle. There are any number of obstacles, both cultural and legal, to overcome, leading many to decide it’s not worth the effort. Of every 1,000 Canadian sexual assault victims, only 12 will ever see the inside of a courtroom.
The first encounter with police is what knocks most complainants out of the judicial arena, if they decide to report the crime at all (nearly 90 per cent do not, according to Statistics Canada).
“In some jurisdictions, it’s up to one-third of women who report rape who are told, ‘We’re not prosecuting, we’re going no further’,” said Elizabeth Sheehy, a professor at the University of Ottawa Faculty of Law who has written extensively on sexual assault. “Some women are even threatened with charges if they persist — for mischief or “obstructing police.”
A police officer — even those with training in the handling of sexual assault cases — will sometimes meet with a woman and conclude she was “mistaken” about the encounter or too drunk to recall what really happened, Sheehy explained. Police might also make the hasty assumption that a criminal conviction is unlikely based on evidence, and the victim is swiftly informed that she has no legal ground to stand on.
But in many cases, nothing could be farther from the truth, says David Tanovich, who teaches law at the University of Windsor and specializes in legal ethics. Since the early 1990s, Canadian law has stipulated that partners must take “reasonable” steps to confirm sexual consent. Situations that invalidate consent include those where consent is withdrawn, or where a complainant is simply incapable of consenting.
“There are lots of cases where the police say, ‘We’re not going to charge because you don’t remember what happened,’ not realizing that you can’t consent when you’re incapacitated,” he says. “But that in itself is enough. If you have no memory, you’re not in a position to consent.”
A police officer’s judgment also comes into play when deciding which of the three levels of sexual assault enshrined in the law is applicable to a given case. The first level involves minimal physical injury to the victim, while the second covers offences where there are multiple perpetrators, bodily harm is caused or threatened, or a weapon is used. The third and most serious level covers attacks that maim or disfigure a victim, or endanger the victim’s life.
Sexual assault remains the only type of offence where the prosecution doesn’t “start high and bargain their way down,” Sheehy contends. In fact, it’s almost always the reverse. “The studies that have been done have indicated that even when there’s evidence of bodily harm, evidence of a weapon, of multiple assailants, police tend to charge at the very first level of sexual assault,” she says.
The frustrations only grow once a case reaches the courts.
“There’s a lot that I was not allowed to know,” summarized the complainant in the McGill case, recalling that the Crown lawyer assigned to her case called to ask her if she wanted to move forward once the new evidence came to light in November.
She said yes, reasoning that the witness who claimed the sex was consensual could be crossexamined. But an hour later, the Crown decided to drop the charges anyway.
If the Crown decides there is enough evidence to move forward, then the complainant is relegated to the role of witness. Cross-examination can be brutal, and laced with a kind of retrograde sexism more suited to a courtroom of the 1950s.
If the defence succeeds in convincing a judge that previous sexual history or medical records should be entered into evidence (Canada’s rape shield laws mean this cannot be done automatically), it only gets uglier.
“It’s a cultural thing, in terms of the way the criminal justice and the legal system treated sexual assault cases,” Tanovich says. “Up until the early ’80s, it wasn’t a crime in Canada to rape your wife ... and it was open season on the credibility of complainants.”
Those cultural norms remain embedded in the profession, he adds, and by extension within judges and lawyers.
“Whacking the witness” remains a stubbornly reliable strategy in 2014, and one almost completely unique to sexual assault. No one asks what someone was wearing when their house was broken into.
Numerous experts, including those interviewed by Postmedia News, argue that the law itself is not necessarily the problem.
“On the books, Canada has some of the most progressive sexual as- sault laws in the world,” says Tanovich. “Our rape shield provisions are the only ones in the world that don’t allow prior sexual history with the accused to come in automatically.”
So what can be done? What it comes down to is oversight.
“You need a system of reward from on high (for police officers who apply their training and understand the law). And you need measures of public accountability for police, which we really lack in all jurisdictions in Canada. You would have to have very strong mechanism of independent civilian oversight ... that’s genuinely independent, that genuinely has teeth, that has powers of subpoena to force police to talk. And you have to back it up politically as a government, and finance it as well.”
Once charges are laid, activists and experts have argued that the legal space must be created for victims to be represented by their own lawyers, not the Crown. In tandem with this, financial support would be needed to pay for those lawyers under existing legal-aid programs.
Such sweeping reforms at all stages will cost money, Sheehy acknowledges, but the cost of allowing sexual assault to continue laying waste to tens of thousands of lives in Canada each year will be much higher.
For Tanovich, the public conversation sparked by high-profile cases in recent weeks is an important first step toward reform.