Is it any wonder we don’t report?

A lot needs to change in the criminal justice system before more women come forward

Rick Eglinton Toronto Star

Rick Eglinton/Toronto Star

Since allegations against beleaguered CBC personality Jian Ghomeshi broke last weekend, conversations about sexual assault and consent have dominated the news cycle in Canada. It’s hard to write off—if you have a heart, that is—the nearly eight million statements made on social media around the world this week, via the Canadian-born Twitter hashtag #BeenRapedNeverReported, by women who say they were raped but never reported their assaults to police. The women’s reasons for not doing so, according to their Twitter feeds, range from fear of not being believed to simply having no time for, nor interest, in the lengthy criminal proceedings that might occur as a result.

So far, where Ghomeshi is concerned, nine women have come forward with abuse allegations, and three have made official statements about him to the Toronto Police Service (TPS), which is now investigating the matter.

However, despite overwhelming sympathy for victims of assault—those who choose to report and those who don’t—there are no easy answers to questions of sexual assault, as some in Canadian media have argued; and the presumption of innocence of the accused, no matter how seemingly unfair in a case as patently obvious as Ghomeshi’s, is fundamentally important.

“That bothersome business about standard of proof is not something cooked up to torture hapless victims of sexual assault or to help perpetrators escape justice,” Christie Blatchford argued in the National Post. “Proving that someone has committed a crime beyond a reasonable doubt is the same standard for every offence in the Criminal Code.” Overcoming that presumption of innocence, she writes, “is meant to be bloody difficult.”

A criminal trial will never be a picnic, as Blatchford, citing former Ontario Superior Court judge David Watt, put it. But it shouldn’t be a last supper. Which is to say, a criminal trial should not be as soul-crushing for the victim as the memory of the crime itself. And, rather than merely ask why women—and men—don’t report sexual assault, we should ask what the criminal justice system can do to make the process of sitting trial less strenuous and traumatic for victims. “The criminal process is geared toward giving the accused as fair of a trial as possible,” says Simona Jellinek, a lawyer in Toronto who sits on the sexual assault advisory committee of the TPS. “The problem with that is the victim is also put on trial without any of the protections given to the alleged perpetrator.”

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In the criminal justice system, the alleged victim is a witness to the Crown, which must prove its case, but also remain relatively neutral in tone. Defence counsel, on the other hand, may go to great, sometimes sensational, lengths to prove the innocence of the client, even using what one Ottawa defence lawyer dubbed the “whack-the-complainant” strategy. This strategy, loathed by University of Windsor law professor David Tanovich, involves the kind of sexist, retrograde clichés that many in academia call “rape myths.” “This would include,” writes Tanovich in his forthcoming paper, “Whack no more: Infusing equality into the ethics of defence lawyering in sexual assault cases” in the Ottawa Law Review, “cross-examination on what the complainant was wearing, whether she immediately reported the incident, whether she spoke to a psychiatrist, her socio-economic status, drug or alcohol use, lifestyle, or marital status.”

If, like me, you thought defence lawyers in the modern world refrained from asking the kind of gratuitous questions one sees on Law and Order: SVU, think again. Just last year, a defence lawyer at a sexual assault trial in Windsor, Ont., requested to use a picture of Italian Renaissance artist Sandro Botticelli’s painting Calumny of Apelles as demonstrative evidence in its closing statements to the jury. The painting, originally from 1494, depicts the wrongfully accused ancient Greek traitor Apelles on trial, surrounded by a series of menacing women, each one made to represent a different moral failing, all the way from ignorance and slander to suspicion and fraud. Thankfully, the judge in question denied the request—literally, the perfect picture of backward thought. But, Tanovich, argues, the fact the defence brought it forward demonstrates the culture of the courts on these issues. “These stereotypes are so prevalent in our culture,” he says.

Despite Canada’s rape-shield law (re-established in 1992 to prevent defence lawyers from overzealously interrogating alleged victims of sexual assault), it is virtually impossible to ban certain questions and practices from the courtroom. Tanovich and his peers, however, hope that a cultural shift will occur, through awareness and education (he suggests adding more law professors, as opposed to defence attorneys, to the teaching rosters of Canadian criminal law programs) that renders the “whack-the-complainant” strategy socially unacceptable when it’s being used to unfairly discredit a witness.

The hard truth is that there appear to be no structural changes that can prevent so-called rape myths from entering the justice system—only cultural ones. But culture matters, at every level of the process. “I think it’s really important that first responders adopt an attitude which is less blaming and more supportive of survivors,” says Cynamin Maxwell, a counsellor at the Toronto Rape Crisis Centre.

When Joshua (not his real name), a Toronto man in his 20s, was sexually assaulted as a minor—and when he was subpoenaed to testify again as an adult when his alleged assailant was accused again—he says the only person who treated him “with any level of compassion was the woman from Victims’ Services. The Crown attorney’s office was frosty, unreliable, often unreachable and callous. I felt as if I was bothering a distant friend to help me move a chesterfield up several flights of stairs; they never answered the phone, they kept changing dates, they made me feel the entire time as if they were doing me some huge favour.”

So far, the conversation about the reticence to report has centred on the stress of testifying and being believed by friends and family, but even the logistics of the process would discourage a complainant. Recently, Joshua was asked to pick up some court documents from a faraway office; he was told the documents could not be faxed to him. “These simple tasks piled up on top of already miserable times that are extremely emotionally draining,” he said.

“If we really cared about rape, we’d give women their own lawyers and we’d pay for it,” says Elizabeth Sheehy, a law professor at the University of Ottawa, referencing countries where victims of sexual assault may access a lawyer of their own choosing to prosecute cases of sexual assault. Were we to adopt this model, the cold disposition Joshua mentions above might become a thing of the past. And, more important, victims in the courtroom might feel less like sitting ducks.


Is it any wonder we don’t report?

  1. Nothing wrong with considering changes to the justice system.

    I was aggressed by an armed man, in 1973. He had me kneel, put a gun to my head… and at the end he hit my face with his gun, my body with his feet. He left, I ran, I don’t know how, to a nearby restaurant and asked that they call the police. I was walking, talking, but the cops insisted on taking me to the hospital. The next morning, I couldn’t walk or talk : I had multiples fractures, mandibles, ribs…

    So I have no merit in telling this story because I had no choice : I could not have hidden my injuries from my parents or the police. The police I am sure to this day saved me from spiralling into a dark place. They were so nice, so considerate, they treated me like a nice young lady, which I was. They were amongst the nicest, most considerate men I have ever met. I had been so sure that I was going to die an hour before, and then I was given so many the reasons to live. My parents, my boss, my colleagues, my friends, my neighbours, everyone knew. I looked like a wreck, ate with a straw for weeks, and needed help to walk for a few weeks too.

    We hear a lot about people who never did denounced the aggression before, who felt too ashamed, too guilty of something. I never felt shame or guilt. I just felt a lot of sympathy and love. Maybe we should hear more from people who did report to the police, who did go through the experience of the justice system. The culprit was never found, so I have no experience of the justice system in this regard. But there is absolutely no reasons why a person should feel shame or guilt after an aggression. There are people around you who love you and who will help you.

  2. I take no issue with gist of this article – Judges need to direct certain lines of questioning or tactics as either being irrelevant or out of order.[ such as the way a women was dressed, implying she was asking for it]. But Emma you need to tighten up your thesis[ or Barbara will be down on you like a ton of bricks] You seem to suggest that only the defence may go up to ridiculous lengths to get their client off – not so. The crown have been known to employ all kinds of tactics aimed at nailing the alleged villain – from getting all smarmy and cozy with the judge[essentially getting the judge on the prosecution team] with holding information from the defence ,to an old time favourite of the British justice system – calling you out for daring/presuming to question the word of the law. Admittedly some of the practices are now dated and may have disappeared along with horse drawn carriages and under paid hockey players, but they have and probably still do occur in some new form or other. The use of prejudiced stereo types and cut throat tactics is not the exclusive preserve of the defence lawyer. And let us never forget the reason the presumption of innocence is so sacrosanct is because the crown has the full and awful power of the state behind it. Just ask David Milgaard about that. That was both rape and murder.

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