UPDATE TO SEX ASSAULT LAWS DOES NOTHING TO KEEP WOMEN SAFE, AND PLENTY TO TILT THE SCALES OF JUSTICE.
Refining assault laws could be ineffectual
As s o meone very much smarter than me s ai d r ecently, the federal government’s purported modernization of Canada’s sexual assault laws may make lucky white women feel better, but it appears to accomplish little else — and it certainly does nothing f or the unlucky among us.
This is Bill C- 51, which got second reading in Parliament earlier this month and is now headed to the Standing Committee on Justice and Human Rights.
It has had scant attention, probably because it touches upon the accepted and sacred wisdom that women just can’t get a break in the criminal courts.
Only a handful of defence lawyers have had anything to say about it, none of the criminal lawyers’ organizations to my knowledge and only one non- lawyer, the activist and vlogger Diana Davison.
In the name of all that is holy ( that is, complainants’ alleged harsh treatment in cross- examination), the bill proposes some unique changes.
First, it will require the defence to make disclosure to the Crown of at least some of its case — any electronic communications “of a sexual nature” or “for a sexual purpose,” such as texts and emails with the accused or anyone else.
This is a huge change, given that in this country, defence lawyers have no burden to disclose the evidence they may call or the strategies they’re planning.
It’s just the opposite: The burden is upon the state, that is the Crown prosecutor, to disclose all relevant evidence in the case. There is, or was, no comparable burden upon the defence.
And this is only for sexual assault.
As Toronto defence lawyer Joseph Neuberger told Postmedia in a telephone interview Monday, the effect of the bill will be “to curb or vet cross- examination. That’s essentially what they’re ( the government) is saying.”
Neuberger said the bill “is a catastrophic attack on our ability to make full answer and defence. It’s unprecedented, and it’s only in relation to the gender of the complainant and the nature of the offence.”
The cross- examination of a complainant in a robbery, a child victim of assault, the person who was the target of an attempted murder — these complainants in all other crimes in other words, those cross- examinations, still won’t be vetted by a judge.
And once the defence in a sexual assault case has made such a disclosure, to the Crown but in effect also to the complainant, a couple of other things happen.
The complainant, if she chooses to participate in the hearing that follows, has the right to her own lawyer — an unprecedented step, really, in that it turns a trial into a tri- party hearing, instead of the traditional state- versus-the- accused contest it is meant to be and traditionally has been.
In the hearing itself, the judge will determine if the evidence the defence wants to adduce is relevant, isn’t being sought to further the evil “twin myths” ( the already discredited idea that a woman with a sexual past is less worthy of belief and more l i kely to have consented) and is sufficiently probative that it outweighs the danger of prejudice to the proper administration of justice.
And t he heari ng , of course, will be private, with public and press excluded.
The addition of a new hearing may also, as Neu- berger said, create “a greater barrier to justice,” in that many complainants won’t be able to afford a lawyer.
The interesting thing is that the driving force behind the bill appears to be the 2016 trial of former CBC radio star Jian Ghomeshi, who was famously acquitted on several counts of sexual assault after his accusers were each discredited in cross- examination and revealed to be, well, liars to one degree or another.
But, as anyone who attended that trial ought to know, Ghomeshi’s lawyer Marie Henein wasn’t confronting the accusers with sexually explicit emails that would be caught, as it were, by this proposed legislation.
Rather, what she was confronting them with was their precarious relationship to the truth, and with a couple of exceptions ( an email and a handwritten l etter accuser Lucy DeCoutere sent Ghomeshi, which were so freaking relevant to the alleged assault upon her they would have passed any test), virtually all of the communications Henein used had nothing to do with sex or sexual activity.
Each accuser had said in effect, “Well, golly gee, after that attack I was so shaken/ scared that I never wanted to see Ghomeshi again, certainly not alone.”
And Henein was able to produce a sheath of correspondence showing that the women who professed to be frightened to bits were in fact inviting Ghomeshi to events, seeking a spot on his show or his influence, inviting him for a chat and, in DeCoutere’s case, actively courting him and seeking his attention for months afterwards.
But the public perception, fed by press reports which appear to wilfully misinterpret what had gone on in the trial, is that an underhanded defence lawyer had waged war upon the three women.
Nothing could be further from the truth.
As my smart friend said, this bill does nothing to make women safer, particularly those who are poor, or from minority and indigenous communities, or don’t speak English, or haven’t dough and wherewithal.
But hey, if it makes white women like Lucy DeCoutere feel better, it’s a job well done then.
ATTACK ON OUR ABILITY TO MAKE FULL ANSWER AND DEFENCE.