Don’t Blame the De­fence

Sex­ual-as­sault sur­vivors suf­fer when po­lice and pros­e­cu­tors don’t do their jobs

The Walrus - - CONTENTS - By Breese Davies

Sex­ual-as­sault sur­vivors suf­fer when po­lice and pros­e­cu­tors don’t do their jobs

As a vet­eran crim­i­nal de­fence ­lawyer, I have been in­volved in dozens of sex­ual as­sault pros­e­cu­tions. In some cases, I rep­re­sented men ac­cused of rape. In oth­ers, I rep­re­sented the ac­cusers. I have wit­nessed, up close, how dif­fi­cult it can be for peo­ple to tes­tify pub­licly about pro­foundly in­ti­mate events.

In re­cent months, a lot of ink has been spilled over the ques­tion of how sex­ual as­sault com­plainants are treated in the court­room. Many have sug­gested that the trauma of tes­ti­fy­ing ex­plains why such ­as­saults are un­der-re­ported and why con­vic­tion rates are low (­although it should be noted that the con­vic­tion rate in sex­ual ­as­sault cases is com­pa­ra­ble to the ­ag­gre­gate rate for all vi­o­lent crimes).

De­fence lawyers have come in for ­es­pe­cially in­tense crit­i­cism. It is said that we re­sort to stereo­types and “rape myths” in an at­tempt to dis­credit com­plainants and that we in­ten­tion­ally abuse or ­in­tim­i­date al­leged vic­tims dur­ing cross-­ex­am­i­na­tion. But my own ex­pe­ri­ence as a crim­i­nal ­lawyer sug­gests these ar­gu­ments are ­base­less. Cana­dian judges do not per­mit the ­im­proper treat­ment of wit­nesses in crim­i­nal tri­als. And in sex­ual as­sault pros­e­cu­tions, there are ­spe­cial rules that limit the kinds of ques­tions lawyers can ask — par­tic­u­larly in ­re­gard to an al­leged vic­tim’s sex­ual his­tory.

This habit of blam­ing de­fence coun­sel is wor­ri­some, be­cause it un­der­mines the very foun­da­tions of our crim­i­nal jus­tice sys­tem: the pre­sump­tion of in­no­cence and the re­quire­ment that guilt be proven ­be­yond a rea­son­able doubt. No ac­cused can have a fair trial unless his lawyer is free to chal­lenge the Crown’s case through vig­or­ous cross-ex­am­i­na­tion.

More­over, by the time a com­plainant has any in­ter­ac­tion with de­fence ­coun­sel, she has in­ter­acted al­ready with a num­ber of other play­ers in the sys­tem, most no­tably the po­lice and the Crown. If fear of the trial process is one of the fac­tors keep­ing women from re­port­ing sex­ual ­vi­o­lence, we need to change the ini­tial stages of the pro­ce­dure by which com­plaints are ­in­ves­ti­gated and com­plainants are ­read­ied to tes­tify — not the rules that govern the court­room fi­nale.

The #WeBelieveSur­vivors Twit­ter hash­tag has at­tracted much me­dia at­ten­tion, but ul­ti­mately it has no place in the crim­i­nal jus­tice sys­tem. ­Un­con­di­tional ac­cep­tance of a com­plainant’s story is an­ti­thet­i­cal to our com­mit­ment to fair tri­als and the pre­sump­tion of in­no­cence. More­over, such mes­sag­ing does ­noth­ing to pro­tect com­plainants from the dif­fi­cult ques­tion­ing they in­evitably will face at trial. Judges and ju­ries will not au­to­mat­i­cally “be­lieve” sur­vivors. Nor should they.

Po­lice should con­duct ­in­ves­ti­ga­tions with the trial process in mind. By this, I don’t mean they should be col­lect­ing ev­i­dence ­only with a view to se­cur­ing a con­vic­tion — a mind­set that has led to many wrong­ful con­vic­tions in the past. Rather, of­fi­cers should work on the as­sump­tion that both the cred­i­bil­ity and re­li­a­bil­ity of the com­plainant will be scru­ti­nized care­fully in the court­room. And so if the com­plainant is go­ing to tes­tify, she ben­e­fits from hav­ing dis­closed ev­ery­thing to po­lice dur­ing the in­ves­ti­ga­tion phase. She should be asked about is­sues that the po­lice know might be rel­e­vant at trial — in­clud­ing whether she had con­tact with the ac­cused af­ter the ­al­leged

Twit­ter hash­tags do noth­ing to pro­tect sex­ual-as­sault com­plainants from the dif­fi­cult ques­tion­ing they in­evitably will face at trial.

as­sault (in per­son or elec­tron­i­cally), com­mented about the in­ci­dent or the ac­cused on so­cial me­dia, or lied about the in­ci­dent to any­one.

The po­lice should col­lect rel­e­vant com­mu­ni­ca­tions be­tween the com­plainant and the ac­cused, and the com­plainant should be ques­tioned about any ap­par­ent in­con­sis­ten­cies or as­pects of the story that seem im­plau­si­ble. Po­lice should fol­low up on leads that might con­firm or con­tra­dict her state­ment — and ask about in­for­ma­tion they un­cover that seems in­con­sis­tent with her orig­i­nal ac­count.

You might think this all sounds ­ob­vi­ous, and it is. But in my ex­pe­ri­ence, most ­in­ves­ti­ga­tions in sex­ual as­sault cases ­in­volve noth­ing more than a sin­gle po­lice in­ter­view with the com­plainant, in which she is ex­pected to pro­vide a com­plete and ac­cu­rate ac­count of ev­ery­thing that hap­pened.

A more thor­ough in­ves­ti­ga­tion would pre­vent dif­fi­cult or un­com­fort­able ques­tions from aris­ing for the first time dur­ing cross- ex­am­i­na­tion. There may be easy ­ex­pla­na­tions for ap­par­ent in­con­sis­ten­cies or un­usual facts. There may be com­pelling rea­sons why a woman lied to some­one about what hap­pened. But as we saw time and again dur­ing Jian Ghome­shi’s trial in March, ex­pla­na­tions of­fered for the first time at trial tend to be un­con­vinc­ing.

Com­plainants should also be prop­erly pre­pared by the Crown to tes­tify at trial, which, for most peo­ple, is a ­com­pletely alien way of com­mu­ni­cat­ing. We do not ­or­di­nar­ily de­scribe im­por­tant events through a for­mal series of ques­tions and an­swers. Pre­ci­sion and at­ten­tion to ­de­tail are not im­por­tant when re­count­ing trau­matic events to our fam­ily and friends. But in a court­room set­ting, they are crit­i­cal.

There is a real skill to be­ing an ef­fec­tive wit­ness. And I have been in­volved in far too many tri­als at which the com­plainant ap­peared com­pletely un­pre­pared to tes­tify.

It goes with­out say­ing that com­plainants should not be coached or told what to say. They must tell the truth. But po­lice and the Crown should ex­plain to them how their tes­ti­mony might be chal­lenged on cros­sex­am­i­na­tion. When these state ac­tors fail in that duty, blame them, not the bedrock prin­ci­ples of our le­gal sys­tem.

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