Judges fail women again on sexual-assault cases
Let me tell you a tale of two judges.
In their wisdom and with the power of the court behind them, each presided over a sexual-assault trial.
In Quebec this May, Judge Jean-Paul Braun presided over the case of a taxi driver accused of sexually assaulting a passenger. Said Braun, “She’s a young girl, 17. Maybe she’s a little overweight but she has a pretty face, no?”
According to the Journal de Montreal, Braun continued to muse aloud: “She looks nice, she’s polite. A man is interested in her, he tries to kiss her. Surely the same consent isn’t required to try to kiss someone as for touching her bottom?”
Pair this with Ontario judge Robert Smith who adjudicated the case of a wife who said her husband had sexually and physically assaulted her over several years. In his decision, Smith wrote, “I find that the accused probably had sex with his wife on many occasions without her specific consent, as both he and she believed that he had the right to do so.” Yet Smith found the man not guilty.
There are a lot of reasons why women do not report their experiences of assault to police. The #MeToo conversation has — yet again, it feels — revealed the layers of coercion, power and access that keep women silent.
In the case of Harvey Weinstein, the film company’s lawyers used nondisclosure agreements while the not-so-subtle threat of Weinstein’s power isolated women who then had only the rumour mill to protect themselves and others.
In the one instance where Weinstein admitted assaulting a woman, the recording made by the model Ambra Battilana Gutierrez and the Manhattan police was not enough for the Manhattan District Attorney’s Office to file charges.
Companies and institutions will have to reckon with how they have created environments for predators to thrive. From restaurants to Just for Laughs to politics, the switch has been flipped; women are less afraid and men definitely should be.
I am left wondering if the criminal justice system is ready for this change.
In Canada, a bill that would amend how judges are trained on sexual-assault law appears stalled in the Senate. The bill was brought forth by Rona Ambrose (then-leader of the Conservative Party) as a private-member’s bill in response to a comment by former Federal Court Judge Robin Camp who asked a complainant why she couldn’t “just keep (her) knees together.” The Camp situation revealed the extent to which judges themselves were unaware of the laws around consent.
Ambrose has been tireless in advocating for this bill until the day she left Parliament. She could not, however, make inroads within the Senate.
“They wouldn’t even meet with me, which is unheard of,” she said to CBC’s The House, “They wouldn’t even give me the courtesy of meeting to talk about this. I even got (former prime minister) Kim Campbell involved.”
“I can’t for the life of me understand why people would think more training is a bad thing so I’m going to keep pushing for this.”
For the few women who are able to get their case heard before a judge, they should not have to contend with judges who do not know the most recent sexual-assault law. Ambrose’s work on this — and so much more on behalf of women and girls — is admirable.
However, this bill doesn’t exactly help with that because it applies only to federal judges. Sexual-assault cases are largely dealt with by provincial courts; judges who err on sexualassault law are disciplined by the provincial bodies that govern them.
Should the bill ever pass in the Senate, the resulting law would require training for federal judges on issues they rarely see. In one sense, it is a workaround that ensures lower-court judges who want to become federal judges seek out training. In another, it provides federal leadership for those places where sexual-assault law training isn’t present.
The stall in the Senate may yet be a case of the upper house doing its job. The law should improve the lives of those dealing with the criminal justice system and not complicate an already overburdened system.
Clearly, there are many provincial judges who cannot sit in judgment of sexual-assault cases. More training will not help them. Perhaps only retirement or resignation will.