by Esther Mendelsohn
One in every four women in North America will experience some form of sexual assault in her lifetime. Only six percent of assaults are reported to police, less than half of those result in criminal charges being laid, and only one quarter of those end in a conviction. And yet, the myths surrounding rape persist, and it is all too easy to forget that behind every statistic is a victim whose world has been shattered.
In Canada, the laws pertaining to rape have evolved over the years, becoming among the most progressive in the developed world. Canada is the only country to have a rape shield law which includes the complainant’s sexual history with the defendant (in other words, a victim’s sexual history with the accused does not exempt the latter from prosecution). In 1983, The Criminal Code of Canada (CCC) was amended to include marital rape. By that time, there were already limits vis-à-vis the cross examination of rape victims, particularly as it pertains to sexual history, and requirements for informal corroboration and recency were also abolished. In the 1991 Seaboyer case, then Supreme Court Justice Claire L’Heureux-Dubé noted in her reasons that evidence that a complainant was a prostitute is irrelevant and prejudicial. In 1992, Parliament clarified the definitions of “consent” and “mistake of fact”, and expanded the list of circumstances when consent does not exist as well as defences which do not apply, such as extreme intoxication.
To be sure, there have been criticisms of the new laws, especially against the renaming of “rape” as “sexual assault”. Some say that the new nomenclature is watered down, and therefore makes it easier to dole out lighter sentences, even though the purpose of the new terminology was to emphasize the violent nature of the crime. These criticisms, however, are misdirected. It’s not just about what we call it, it’s about how we’re dealing with it—or more to the point, not dealing with it. For some looking on from the sidelines, it would seem that our criminal justice system takes drug offences more seriously than it does sexual assault, despite what the law says.
The Root of the Problem
A successful Ottawa lawyer, speaking at a seminar said that “if you destroy the complainant in a prosecution…you destroy the head. You cut off the head of the Crown’s case and the case is dead. My own experience is the preliminary inquiry is the ideal place in a sexual assault trial to try and win it all… you’ve got to attack the complainant with all you’ve got so that he or she will say I’m not coming back in front of 12 good citizens to repeat this bullshit story that I’ve just told the judge.” It’s no coincidence that the violent imagery in his words mirrors the violent nature of sexual assault, and the scenario he describes traumatizes many survivors and deters other victims from seeking justice. When a complainant is questioned by police and cross-examined on the stand, he or she is forced to relive the trauma of the assault and the feelings of shame and guilt are compounded. It would seem that while we have enshrined the principle of an accused being innocent until proven guilty, we have also enshrined the opposite principle with regards to victims of sexual assault.
When Alberta Court of Appeal Judge John McClung acquitted Steve Ewanchuk of raping a 17 year-old girl, he noted that the defendant’s actions were “far less criminal than hormonal”, adding that the victim “did not present herself [to her attacker] in a bonnet and crinolines”. Ever the crusader for justice and equality for women, Justice L’Heureux-Dubé, found hers being the lone voice decrying McClung’s comments in her reasons for overturning the acquittal. She correctly noted that, by McClung’s logic, men would never be held responsible for sexual assault so long as they could prove they were under the influence of their hormones.
But Justice McClung did not accept the ruling or the Justice’s comments. In an unprecedented move, McClung wrote an open letter published in the National Post, where he accused Justice L’Heureux-Dubé of a “graceless slide into personal invective”—comments obviously predicated on the notion that women are overly emotional and unable to separate the personal from the professional. It seemed as though McClung himself was sliding gracelessly into personal invective, but he did not stop there. In what can only be called a cruel ad hominem attack, McClung said that the rise in male suicides in Quebec (the province from which Justice L’Heureux-Dubé hails) could be attributed to feminism and opinions such as those held by the former Justice. He claimed not to know that her husband had taken his own life only a few years prior. Our judicial system demands, and indeed, has institutionalized civility amongst lawyers and judges—opposing counsel even refer to one another as “my friend”; Justice McClung’s letter not only exposed his own misogyny and hostility towards women, it also fell short of the standard of civility to which lawyers and judges are held. (This is the same Justice McClung who analogized homosexuality and sexual assault in the Vriend case, and yes, he is related to the Canadian suffragette Nellie McClung, who is, no doubt, turning in her grave.)
These are sad examples of the problem in our country. The laws are clear, and they are progressive; the problem lies primarily with the bar and the bench. Women are discouraged from reporting sexual assault because they know they may not be believed or that their experience may be trivialized. They know they may be viciously cross-examined—and who could blame them given the fact that defence attorneys feel empowered to metaphorically send the victim to the guillotine on cross examination. They know that convictions are rare, which will only exacerbate the feelings of shame and guilt so common among victims of sexual assault. Female lawyers and judges brave enough to speak out against the underlying sexism amongst some of their colleagues know they will likely be labelled irrational or radical, and the outcry from male barristers and judges is simply not loud enough.
Preliminary General Solutions
Having more women on the bar and bench is an important step in creating just laws and just decisions. It is important to recognize, however, that this must happen in tandem with male lawyers and judges standing up and challenging the way in which sexual assault is trivialized in our judicial system.
Educating the Lawyers & Judges
Lawyers are required to complete a certain number of Continuing Professional Development hours each year. Programs which deal with ethics are eligible, but not mandatory. It is my humble submission that courses on ethical lawyering in sexual assault cases should be mandatory for the entire criminal bar. Defence attorneys must understand the legal and ethical limits of mounting a defence in a sexual assault case, and must be held accountable when they cross the line in court. Prosecutors must be able to recognize and effectively deal with inappropriate questioning by defence counsel. Judges must understand the unique nature of sexual assault and its effect on the victim, and the pain of reliving the assault on the witness stand. We must obliterate every rape myth from our judicial system, and work to apply our laws and procedural rules more effectively. Educating lawyers and judges is crucial, and cannot be left up to the goodwill of individual practitioners.
Giving Victims a Voice
Many think that the prosecutor, or the Crown, is the voice of the victim in a sexual assault trial. The Crown must prove the elements of the crime, while the defence, though not legally obligated, usually chooses to raise reasonable doubt as to the Crown’s position. The Crown is not the victim’s lawyer, and is not even officially tasked with securing a conviction, but must rather seek justice and represent the entire public. So who, then, gives the victim a voice in court? Professor Larry Wilson of Windsor Law has suggested that retaining independent legal counsel may encourage more sexual assault survivors to come forward and may mitigate or prevent some of the issues victims face when encountering the system. Legal Aid should be expanded to provide services to victims of sexual assault. Unfortunately, LAO’s (Legal Aid Ontario) coffers are already strapped, but the general notion of giving victims a voice in the proceedings should guide our approach to sexual assault prosecution.
Wilson also notes that victims have come to be seen as mere witnesses, and nothing more; they are no longer parties to the proceedings. Witnesses, although usually integral to each side’s case, simply provide pieces of the puzzle—they tell the police and the court what they saw or know. Parties to proceedings, on the other hand, play active roles and carry the case. While the rationale behind removing the victim as a party to the proceedings (namely that the complainant no longer has to bear the financial burden of prosecuting their attacker nor the burden of proving the elements of the crime, etc.) is understandable, the victim should not be allowed to languish in ignorance as the case proceeds, but rather be kept informed by the police and Crown every step of the way as a matter of policy and not discretion (as would be perfectly legal for police to do, as long as victims of sexual assault are not considered parties to the proceedings). Currently, because victims are not parties to the proceedings, there is no law or rule on informing the victim about developments in the case. Given the nature of sexual assault and that it is essentially an attempt by the attacker to take power away from the victim, victims should be empowered in court and given standing during the proceedings, beyond the passive role of simply testifying and giving a victim impact statement.
A Separate Court Circuit
Christine McGoey, one of the most accomplished and impressive women on the bar, and Toronto’s first female head Crown Attorney, pioneered the domestic violence courts—a court circuit dedicated to domestic violence, where a special team of experienced crown attorneys are assigned to only those cases. A similar model—sexual assault court, may also offer another possible solution. Seasoned and specially trained crowns would handle sexual assault cases and would appear before specially trained judges. Since the evidentiary rules in sexual assault cases are already quite progressive, the specially trained judges would know to apply them without fumbling and would be empowered to balance the rights of the accused with those of claimant. By focusing on the Crown and judges, this approach does not interfere with the ability of the defence to provide answer to the charges against the accused.
Public Legal Education & Access to Lawyers in Times of Crisis
The legal profession is slowly waking up to the fact that maintaining the knowledge and information in the hands of lawyers alone is an untenable situation. To that extent, public legal education initiatives in different areas have emerged, usually in partnership with community organizations, and are, generally, succeeding in democratizing the access to legal information and empowering people to know their rights. Having lawyers on staff at rape crisis centres and women’s shelters would go a long way in empowering survivors to come forward or at least in helping them to make informed decisions. Lawyers doing education programs in high schools might be a good way to nip rape myths in the bud and teach young people about consent and the consequences of sexually assaulting another person. I have outlined several different suggestions which together may provide a solution, because a problem so serious and so complex necessitates a multi-tiered approach.
Concluding Thoughts & Points for Further Reflection
The justice system should be thoughtful and analytical in its approach to remedying this problem, but thoughtfulness and analysis should not lull us into forgetting the urgency of this problem. It is indeed one of the most pressing issues in our judicial system today. That our society does not prioritize the bodily integrity of women has ramifications for both women and men. For women: we will not be able to fully realize our autonomy as individuals if we continue to live in a society which persists in its adherence to rape myths. We will never be respected as individuals until we are respected as a collective. We will never be able to feel completely safe until our safety and bodily integrity are as important to society as that of men or as that of victims of other crimes. So long as sexual assault victims are suspected of lying, and so long as those suspected liars are primarily women, both the men and women of our society will retain the notion that women have a lesser authenticity and that questioning their honesty is both natural and a prudent course of action. For men, the ramifications may not be as obvious, but they are certainly just as serious. Men cannot hope to be complete, compassionate, and rational individuals unless and until they accept the humanity in the other, in this case, women, and critically examine the fallacies that are rape myths as well as their implications. And neither women nor men can fully trust or respect a society and a judicial system which do not prioritize the bodily integrity of members of a certainsub[u1] group.
I encourage you all to find ways to break the myths surrounding sexual assault and to find the tools and perspectives unique to your profession or academic background which can bring us all towards a more just society. As a law student, I see things through the unique lens of the law, and both my perspective and approach to finding solutions are necessarily informed by legal reasoning. Lawyers enjoy a privileged position in society and have the power to effect change. We have helped create and perpetuate some of these problems, so it is only fitting that we do what we can to fix them. Indeed, lawyers can play a role in all of these solutions, and I call upon my classmates and future colleagues to do just that.
Special thanks to Professor David Tanovich and to Professor Donna Eansor. Prof. Tanovich inspired me to explore this topic, and taught me much of what I know about the law and perhaps even feminism. Professor Eansor lives feminism every day and leads by example.
 While I have no issue with either term, for the sake of consistency, I will use “sexual assault” almost exclusively from this point on, because it is the current legal term.
 Legal Aid does not currently provide services to victims of sexual assault, nor are victims required to retain the services of an attorney. In Ontario and Manitoba, legal assistance is provided for victims making a publication ban (medical and psychological records) application to the court.
 Ibid. As Wilson points out, there is a “Victim’s Bill of Rights”, but the “rights” are not enforceable and this is not an actual law, but rather a set of guiding principles. It falls on the individual officer or Crown to keep the victim informed, and unfortunately, these guidelines are not always adhered to, often as a result of heavy caseloads. There is a need for consistency.