Sexual Assault: Where Do We Go From Here? by Janet Nicol
The Jian Ghomeshi trial last year touched off a national debate about the legal rights of women who have experienced sexual violence. As a result, legal experts and activists are now calling for a host of legal reforms, changes to justice protocols and greater support for women’s crisis centres.
The former CBC radio host was acquitted on charges of assault and choking involving Lucy DeCoutere and two other women. In his ruling, Justice William Hoskins chastised the complainants for inconsistencies in their testimonies and for not including certain details. These factors led him to dispute their credibility as witnesses.
Lisa Rupert has worked in women’s shelters for more than 20 years and is the YWCA director of housing services and violence prevention in Vancouver. Rupert believes the legal systems in countries such as France and Denmark have the right approach because they provide women with their own legal counsel.
“Women are witnesses, so they don’t have a lot of power within the system,” Rupert says. “It would be important for them to have a lawyer who can bring their views forward from the beginning.”
While rape crisis centres offer emotional support, lawyers provide a different kind of support. “This will encourage women to come forward if they have somebody there to defend their interests, and they’ll feel more comfortable.”
Rupert observes that Crown lawyers don’t always vigorously object to questions asked of complainants during cross-examination. Crown lawyers represent the state—not the complainant. She also believes the “perfect victim” myth must be dispelled.
“There is no perfect victim,” she says. “We have to take into consideration there is no one right way to respond. There is no right way to recover from sexual assault and we have to set aside those myths.”
Following Ghomeshi’s acquittal, a YWCA-sponsored dialogue about sexual assault in Vancouver drew a large crowd in June. “People actually care about this issue and want a society where women are believed. This is important because I don’t believe we were always at that place.”
Lee Lakeman, a founder and long-time staff member at Rape Relief transition house in Vancouver, says the courage displayed by the complainants in the Ghomeshi case helped garner public support for women who experience assault.
“They had a kind of solidarity in the airwaves,” Lakeman says, “and that solidarity, I think, sent a message to other women that it was possible to talk about violence against women, and about what men have been getting away with, and about the lack of adequate response by the government—but, in particular, by the criminal justice system.”
Lakeman cites the federal inquiry into missing and murdered Indigenous women as part of a growing demand for greater justice in cases involving sexual violence.
“There is something quite wonderful about watching women’s insistence that they have a right to the rule of law,” she says, whether it’s “in the case of the Indigenous women or in the case of the women who were trying to hold Ghomeshi to account.”
Recalling that it has been a long, uphill battle to establish credibility for victims since the first rape crisis centre in Canada was established in 1973,Lakeman says that the enforcement of sexual assault laws still is not a high enough public priority.
“The state has a responsibility to prevent rape and has a responsibility to prosecute rape. They have a responsibility to see to it that violence against women is criminalized effectively.”
However, Lakeman says that in practice, most cases are dismissed at the outset by police who do not take sexual assault seriously.
“The first cop doesn’t take the incident seriously and does not collect the evidence, applies no imagination to how to get the evidence, often ruins the evidence, applies his own bigotry to the situation and is never corrected by his superiors—and his superiors are more callous than that,” she contends.
Canada is not unique in this respect, she adds. “It’s an issue in every industrialized country in the world. What we are up against is bigotry, the inequality of women and the refusal of the state to do anything about it.”
Ultimately, this belief system must change. “Men need to know: If you commit this act there is a greater likelihood that you are going to get caught,” she says.
“What we need is the rape crisis centres … to have enough independence to be able to make trouble within their own community when the police do not do adequate investigations, when the prosecutors do not pursue the cases and when the judges shoot off their mouths,” Lakeman says. “Why is this not a super-national discussion right now? Why are we not having proper consultations?”
Janine Benedet is a professor of law and co-director of the Centre for Feminist Legal Studies at the University of British Columbia. In addition to teaching, researching and writing about the law and sexual assault, she does pro bono work for women’s organizations in cases involving sexual violence. She also conducts workshops for judges and prosecutors.
“I try to both teach them about the current state of the law, but also to get them to understand why the law developed the way it did,” Benedet says, “and what kinds of biases and stereotypes can influence legal decision-making.”
“I don’t think we will ever be at a stage where 100 percent of sexual assaults are reported to authorities,” Benedet says.
However, “when you ask women why they don’t report, I would like to get to a point where one of the top reasons isn’t: 'I don’t have any confidence the system will treat this fairly or that the perpetrator will be punished accordingly.'”
Benedet notes many of the legal reforms won in the past have been due to feminist efforts.
“Women are no longer presumed to be consenting until they object or resist,” she says. “If a man wants to argue that he believes the woman was consenting, he’s got to point to something affirmative to show consent.”
She adds that provisions restricting women’s sexual history from being discussed in court, as well as their personal counselling and medical records, have helped protect victims.
Ultimately, Benedet believes that changes to rape culture—more so than changes to the law—will have the greatest impact on the reporting of rape and conviction rates.
On this point, she sees a positive shift: “I do think we are seeing more and more women using a variety of platforms— whether it’s the legal system, social media or conventional media—coming forward and naming their accusers and saying: I won’t be silenced and I won’t be shamed and this is what happened to me. I think some find support and encouragement from those stories, whatever the outcome might be.”
Changing stereotypes about women and myths “are problems that are harder to address through law reform … and in some ways, they require a reorientation of the thinking of the actors in the system,” she adds.
Responding to the bewilderment expressed at the outcome of the Ghomeshi case, Benedet says that the “core allegations” of the complainants were deemed less important in the end than the “collateral issues,” which ultimately hijacked the case.
“The question is whether there is a reasonable doubt, and if that reasonable doubt exists without ever having to decide those core allegations. And he [the accused] doesn’t have to take the stand—it’s enough for the judge simply to say: ‘Well, I’m not saying that you [the complainants] are lying, but on the core of that allegation, you’ve lied about enough things, that I simply can’t accept your testimony.’
“People were understandably surprised by that,” she says. “They wonder, what is the purpose of this system if all it’s going to do is decide these collateral issues and not actually decide whether the assault took place? If the focus is always going to be on those collateral issues, what does it mean for a woman who is sexually assaulted and whose credibility is in peril?
“It means she can be raped with impunity because she is not a believable witness. So it doesn’t matter whether it happened or not.”
Benedet would also like to see the greater use of experts in court.
“We say we don’t need an expert to tell us that it is normal for someone who’s been sexually assaulted to reach out and continue to try to maintain a positive relationship with the abuser, in an attempt to process and normalize something that’s happened to them,” Benedet says.
And yet, she says that a frame of reference is needed to understand the behaviour of sexual assault victims when their behaviour seems “inexplicable, or damning, or problematic.” As a society, she says we must be more “generous in our thinking, and to be careful of that tendency to search out the perfect victim.”
“Women [who report sexual assault] have historically been placed in that category of being unsavoury witnesses,” she continues. “I think what people are responding to, in the Ghomeshi case, is a deep frustration that no matter how much reform and no matter how much we claim to have progressed, we don’t really seem to have moved away from that.”
Another legal change could involve placing limits on defence lawyers’ cross-examination of complainants.
Judges in Australia and England are permitted to intervene when defence lawyers become too aggressive toward the complainant. Some would argue that the rights embedded in Canada’s Constitution have prevented this type of intervention. Benedet does not agree.
“The right to a fair trial and the right to cross-examine are not unlimited, and they certainly don’t extend to a right to rely on irrelevant, biased or stereotypical reasoning in order to defend one’s client.”
She wants judges to have a greater scope to intervene when cross examination is irrelevant or based on discriminatory reasoning, and for courts of appeal to back them up.
“Even better would be some kind of legislative direction as to what circumstances warrant intervention,” Benedet adds. “It’s more than simply changing laws. It’s about changing the culture of the legal system and the way that trials operate.”
Ontario women who have been sexually assaulted can receive a limited number of hours of legal aid. “I would love to see that extended across the country,” Benedet says. “You need someone who can … prepare women for what they are going to experience in the system and to answer their questions because no one should be surprised by what happens when they go to court.”
Benedet also makes a compelling argument to re-examine the interpretation of the constitutional requirements that judges apply in regards to the reasonable-doubt standard and the presumption-of-innocence standard.
“Judges have developed—for sexual assault cases in particular—a kind of formula for how they apply that [constitutional requirements] when you have the evidence of the accused and the evidence of the complainant.”
She would like to see a shift, so more judges would say: ‘Alright, I’m going to measure those stories against all of the external factors that I know. I’m going to look at whether the complainant’s story remained relatively consistent under cross-examination. And I’m going to do the hard work of saying, I don’t believe him, and I do believe her, and I’m convicting.’
“Unfortunately, we have too many cases on those kinds of facts where judges say: Well, you know, he took the stand and he said it was consensual, and he didn’t change his story, and that could be true, and so I’m acquitting.
“That creates a problem, because in most sexual assault cases, there aren’t witnesses and there isn’t anything— other than the complainant’s evidence—which can be measured against some extraneous factors.”
Benedet says, “When women are telling coherent stories that stand up under cross-examination, they are giving everything they possibly can and it still is not enough. And so I’d like to see us take a hard look at that reality because it makes it very difficult where there’s no forensic evidence, or a witness, or something to counter a claim by the accused [that she was consenting]. And if [the accused is] prepared to get on the stand and say that, we’ve created a pathway to acquittal—an expressway to acquittal, that can be hard to get off of.”
Dismantling rape culture requires a concerted effort, but activists and legal experts are determined to make it happen. As Lee Lakeman says, “Now is the hour.”
This article first appeared in Herizons Fall 2016 issue. Support feminist articles like this by subscribing now to Canada's foremost feminist magazine.