A call for empathy and reform
For survivors of sexual assault, the courtroom can be a harrowing battleground
In the movies, the courtroom is often portrayed as a bastion of justice, a place where truth prevails and wrongs are righted.
However, in real life, the courtroom for survivors of sexual assault can be a harrowing battleground where their trauma is compounded, their credibility questioned, and their humanity stripped away.
I was shocked last month to hear that the Minister of Justice John Hogan said in the House of Assembly that “it’s impossible” for sexual assault survivors to be retraumatized in court.
DIMINISHING EXPERIENCE
While he has apologized and committed to learning about the justice system’s treatment of survivors, I was reminded of a similar incident back in the early 1980s when NDP MP Margaret Mitchell stood in the House of Commons to discuss wife abuse, now called intimate partner violence.
Several MPS broke into laughter as Mitchell was speaking and it led to calls for greater respect and understanding of the issue.
Now, Hogan didn’t laugh at MHA Lela Evans when she presented a petition to address inappropriate and abusive behaviour in courtrooms, but his comment had the same effect of diminishing and dismissing the experiences of survivors whose cases make it to trial.
Back in the early '80s, people weren’t aware of the issues the way they are today.
Nonetheless, the adversarial nature of the legal system, coupled with pervasive victim-blaming attitudes and systemic failures, is not an unknown issue. We only have to look are the multiple trials Jane Doe has endured in recent years to see her assailant convicted.
The process so often retraumatizes survivors, perpetuating cycles of pain and injustice, that it keeps complainants of sexual assault from moving forward.
MAKING IT TO TRIAL
According to the Vancouver Rape Relief and Women’s Shelter, less than a quarter of sexual assault complaints reach trial and less than 10 per cent result in a conviction.
Long before a trial begins, the victim of a sexual assault must recount their experience multiple times before health professionals, police officers, prosecutors and whoever else is deemed necessary.
When it comes to the trial itself, survivors are often required to recount their deeply traumatic experiences in detail, often in front of their assailants and others in the courtroom, and their testimony may be shared in media reports.
The very act of testifying can trigger intense emotional distress, reawakening memories of the assault and exacerbating feelings of shame, guilt, and powerlessness.
CROSS-EXAMINATION
Survivors are subjected to cross-examination by defence counsel, a process focused on discrediting the victim’s credibility, undermining their testimony, and exploiting societal prejudices about sexual violence.
Questions about attire, behaviour, prior sexual history, and delayed reporting are routinely used to cast doubt on the truth of survivors' accounts, perpetuating harmful myths, reinforcing victimblaming narratives and leaving survivors retraumatized and revictimized.
Seeking justice is a protracted and emotionally draining ordeal. The adversarial nature of trials intensifies feelings of vulnerability and powerlessness, at trial and after.
Jane Doe, for example, was subjected to three trials in six years. During the third trial in 2023, Jane Doe said the assault, the subsequent investigations, the trials and appeals had affected her mental health so deeply she considered suicide.
It is both distressing and enraging that Jane Doe is not alone. Many survivors report experiencing symptoms of post-traumatic stress disorder (PTSD), anxiety, depression, and other psychological disorders as a result of their ordeal. The stigma and shame associated with sexual violence can also compound survivors' trauma, leading to feelings of isolation, self-blame and diminished self-worth.
Lela Evans’s petition is another effort to acknowledge and centre survivors' experiences. We need to recognize the profound impact this trauma, not just the sexual assault itself, has on their wellbeing in the short and long term.
I am glad the minister of Justice is committed to learning more and changing his approach. We need more empathy, sensitivity and trauma-informed practices to guide our justice system’s response to sexual violence.
Legal education is only one step. Respecting and validating victim experiences is another.