Would a lawyer in 2017 advise a woman to report a rape?

Should a woman report a rape? I was ambivalent in 1980, when I answered this question for my column in Chatelaine magazine.

As a lawyer, I felt I had a responsibility to uphold respect for the law’s ability to provide justice. As a woman imagining myself in the position of victim and complainant, I worried that the experience would end up being more traumatic than the rape itself.

So when I wrote the column, I outlined all the factors for a victim to consider in making her own decision, but I did not directly answer the question.

The cases piling up over the years are challenging me to resolve my ambivalence:

In 2017 alone, courts found three Toronto police officers not guilty of sexual assault charges against a female parking enforcement officer.

Ajudge overturned Judge Marvin Zuker’s enlightened conviction of York University student Mustafa Uruyar in the Mandi Gray case.

ANewfoundland policeman and a Halifax cab driver had their charges dropped because in each case, an inebriated victim could not prove she did not consent.

Police dismiss one in five sexual assault claims as baseless before they even get to court. Statistics Canada reports that sexual assault is the only violent crime in Canada that is not declining — even though only five per cent of sexual assaults that were disclosed to StatsCan were also reported to police in 2014.

Even so, if the matter goes to trial, fewer than one per cent of sexual assaults lead to a conviction. And when there is no conviction, the victim risks being sued for defamation.

Since I wrote the Chatelaine column 37 years ago, there have been major improvements to the rape laws.

Rape, or the act of non-consensual sexual penetration, is no longer the definition of the crime; it is now called sexual assault.

A woman’s previous sexual experience is no longer able to be used against her — the courts no longer permit the decisionmakers to assume that once a woman consents to sex with any man, she can be assumed to have consented to sex with every man. Nor can counselling records, created by professionals as they try to help the victim, be used against her in court.

And a rape shield law was passed, in which the definition of consent became actual consent — which was abbreviated to “no means no.” And even now, the federal government once again promises to tweak the Criminal Code. So what’s the problem? Look at the cases that have come before the courts. Victims are still assumed to be “asking for it.” Why didn’t you hold your legs together? Why did you go drinking? Why didn’t you say ‘NO’? Why did you wear a short skirt? Why. Why. Why.

These questions are asked of the victim, as if it was her responsibility not to tempt the rapist, rather than his responsibility to stop himself — his responsibility to listen when she said “No,” or stop when he realized she was too drunk or “out of it” to give real consent. Individual police and judges may find it difficult to interpret what happened, and some let their own experiences and assumptions fill in the blanks.

All this adds up to the fact that the current law and court practice is not working, even though the sexual assault legislation itself is progressive.

So I have resolved my ambivalence. I would advise most women not to report sexual assault to police under current conditions, except in the rare circumstances that her own lawyer (and she needs her own lawyer) is confident of a conviction. The bottom line is: If it’s so difficult to get a conviction and so traumatic to undergo the process, don’t do it. What would change my advice? Specialized courts with specially educated judges would help. So would trained police with specific expertise in sexual assault law. The victim needs her own government-paid legal counsel, almost from the moment she calls the police.

Changing the law has not been the perfect solution we hoped for, but perhaps retired justice Marie Corbett’s proposal would work — stipulate that the victim does not have to prove that she did not consent — a negative — but instead require the accused to prove there was consent if he wants to use it as a defence.

Until then, and even so, women should be wary.

The current law and court practice is not working, even though the sexual assault legislation itself is progressive