LEGAL SYSTEM IS FAILING VICTIMS OF SEX ASSAULT
New studies, survivor stories reveal that it’s stacked against women
From Jian Ghomeshi to U.S. Supreme Court Justice Brett Kavanaugh, the #MeToo movement has put the maledominated legal system under scrutiny — and it’s not faring well.
In a new report by the West Coast Legal Education and Action Fund — “We Are Here: Women’s Experiences of the Barriers to Reporting Sexual Assault” — Alana Prochuk paints a bleak landscape.
And the same grim picture emerges in Elaine Craig ’s new book, Putting Trials on Trial: Sexual Assault and the Failure of the Legal Profession (McGill- Queens University Press: Kingston, 2018), which also casts a pall over the system.
The statistics are staggering — some 90 per cent of survivors of sexual assault are women yet a 2014 government study found only about five per cent reported it to police, and of those barely 11 per cent of the complaints led to a conviction, according to StatsCan.
With fewer than one per cent of sex assault perpetrators receiving punishment, was it any wonder at the fiery controversy ignited by Ghomeshi’s 2016 trial, which ended in his acquittal on five charges and the withdrawal of a final charge in return for making an apology and agreeing to a peace bond?
Kavanaugh’s incendiary Senate confirmation hearing only added fuel to that fire.
Other cases, too, have fed the blaze — the failings of Judge Greg Lenehan in the Halifax taxi driver case, the disciplinary proceedings against former justice Robin Camp …
There seems little doubt the legal system is stacked against women. Craig insists that when more than nine out of 10 sexual assaults receive no legal scrutiny, it is profoundly dysfunctional.
Done in partnership with the YWCA Metro Vancouver, the LEAF report was based on interviews with 30 sexual assault survivors — 18 women specifically, all but seven did not report being assaulted because they considered the risks and costs too great.
They identified several factors that compelled them to that conclusion: Sociocultural attitudes that minimize the seriousness of sexual assault and expose survivors to blame, shame, skepticism and stigma; their deep misgivings about the system’s prejudices, its treatment of perpetrators and the remedies it offers; the insensitive remarks and anachronistic attitudes displayed by some police, lawyers, judges and other legal system participants in the thrall of stereotypes and myths; the personal repercussions of reporting an assault — retaliation, the violation of privacy, the impact on their finances, security and employment; and concerns about the legal proceedings that are centred on the accused and his rights.
“We live in a culture that misplaces blame for sexual assault at the feet of those who have been assaulted,” explained Prochuk, West Coast LEAF’s manager of public legal education. “The potential for re-traumatization through the justice system is very real, particularly when discrimination and victim-blaming come into play.”
Kasari Govender, LEAF executive director, added:
“For some survivors, engaging with the legal system is not part of their path to healing and justice.
“For other survivors, seeking legal recourse is hugely important, yet they may find that overwhelming obstacles stand in the way.
“Our justice system can and must prioritize the rights of complainants alongside the rights of the accused so that reporting sexual assault to police becomes a real option for all those who want to pursue it.”
The report concluded the system can and must become more responsive to the needs of survivors.
Most importantly, it insisted the voices of survivors and their rights must be at the centre of reform.
Craig sings from the same hymnal after a much more exhaustive survey that included interviews with experienced lawyers, a review of case law and trial transcripts from the past six years.
In her extensive indictment, she refers to lawyers who humiliate victims in cross-examination, cites Crown attorneys who fail to meet their duty to complainants and points to judges who fail to intervene to prevent abuses or apply the substantivelaw.
One woman told her: “The bulk of my rape trauma is not the result of the sexual assault itself but of the brutality of the legal system.”
Another added: “When they say you get raped again on the stand, I initially didn’t believe it to be true, but it absolutely is.”
An Indigenous woman who refused to testify in the middle of a case was arrested under a witness warrant, held in a cell and forced to testify in a five-day ordeal that left her feeling “depressed” and “suicidal.”
“Yes, we have an adversarial system committed to the due process interests of the accused,” Craig wrote.
“The need to ensure a fair trial for any individual accused of a criminal offence is of paramount importance to the justness of our legal system. However, there are changes within the control of the legal profession that could reduce the re-victimization that is experienced by some of those who turn to, or are forced into, the criminal justice process following violations of their sexual integrity.”
Her material is more than persuasive: The system is more than just failing badly, it exacerbates the harms experienced by sexual assault complainants.
“Lack of reporting renders sexual violence invisible, relegating it to the personal and private sphere rather than constructing it as a public, social problem,” Craig maintained.
“Its invisibility, in turn, promotes self-blame and discourages survivors from disclosing.”
Like Prochuk, she concluded the system must change to become more understanding, more compassionate and more accessible.
The first step, Craig said, was recognition by the legal profession that the way sexual assault law continued to be practised unnecessarily contributed to the harms experienced by survivors.
We live in a culture that misplaces blame for sexual assault at the feet of those who have been assaulted.