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How can a criminal law system that fails victims of sexual assault be considered great?

Policy Options by Daphne Gilbert, Elizabeth Sheehy and Blair Crew 12 April 2016

In the aftermath of the acquittal of Jian Ghomeshi on four counts of sexual assault and one count of choking to overcome resistance, many commentators— particularly defence lawyers and Crown attorneys — have asserted that the case does not indicate that anything is “broken” in our criminal justice system. Instead, they say, it’s a great system — possibly the best in the world. It just doesn’t work that well for sexual assault, they acknowledge.

But isn’t that a serious indictment of our criminal justice system, when we know that 39 percent of Canadian women will experience at least once in their lifetimes the chaos that sexual assault brings? Sexual assault carries high rates of nonreporting by women, and the police often determine the cases that are reported “unfounded.” They also have high rates of case attrition (cases that are dropped as a result of police or Crown decisions) and of acquittal by judges and juries. What does it say to men in Canada when we know that 997 of 1,000 men who commit this crime can expect to be unsanctioned? Surely not “don’t rape.”

How can a system that fails half the population most of time be “great”? Who is the criminal law for? Are we honestly ready to concede the terrain and accept that women’s lives, safety and dignity are somehow outside the brief of the criminal law — “our” criminal law, to quote the Law Reform Commission of Canada?

Certainly this is one way to “read” the decision in the Ghomeshi case, which focuses exclusively on the quality of the women’s evidence in their dealings with Ghomeshi after the assaults they allege took place. Justice William Horkin’s reasons are heavy on an assessment of how the three complainants behaved after the fact, but light on the law. The judgment does not cite any case law on the meaning of consent or on how to assess credibility. Justice Horkin never sets out the legal elements of a sexual assault. A casual reader could not purport to define the crime after reading the decision, nor could she relay with confidence on what basis the Crown failed to prove the charges.

The elements of a sexual assault are (1) touching of a sexual nature (determined objectively and in the context of the touching, without specific reference to parts of the body); (2) without the subjective consent of the complainant; and (3) in circumstances where the accused knowingly engaged in the nonconsensual contact, or did so recklessly or being willfully blind to the complainant’s wishes. It is unclear from Justice Horkin’s reasons in which elements he concluded there was reasonable doubt. Does he think it possible no touching happened at all? Or that the complainants actually consented at the time, making their allegations after-the-fact lies? Or is it that he thinks Ghomeshi thought he had consent? If so, he would need evidence that Ghomeshi took reasonable steps to ensure that the complainants subjectively wanted to be punched in the face, throttled or bitten, as they alleged.

All of the complainants described sudden, “out-of-the-blue” assaults. If one took their accounts at face value, there would have been no time to discuss consent, much less space for Ghomeshi to argue he took steps to find out. The law is still a bit fuzzy on whether a person can consent to violence in the context of a sexual relationship, but currently the law says one cannot consent to the deliberate infliction of serious (or at least nontrivial) bodily harm. And even if one could, the reasonable-steps requirement would suggest the need for clear and unequivocal agreement before engaging in this kind of “touching.”

The evidence that the three complainants brought forward suggests they consented to some sexual contact, but not to any violence. It was the violent part of the alleged assault that left them confused, hurt and traumatized. They describe varying levels of alleged violence, but at least some of it amounted to more than trivial harm. Justice Horkin did not address any of this in his reasons. The closest he came was in his concern that the complainant SD could not remember how many seconds Ghomeshi’s hands were allegedly around her throat. Her lack of precision on that detail disturbed him, even though strangulation for any period of time poses grave risks to health and life.

The message of the decision is that we need not concern ourselves with what the law of sexual assault might have to say about the facts alleged, because the three complainants have shown themselves unworthy of the law’s protection — making them unrapeable women. In failing to set out and apply the relevant legal tests, Justice Horkin’s judgment is impoverished as a precedent to rely on in future. It is unfortunate that in such a high profile case, he felt no need to educate the public about the lines around what is or is not sexual assault: the only lesson conveyed is a very personal one to the complainants themselves and a dangerous one to Canadian women.

If we were to insist that criminal law matters and that women’s physical, psychic and economic safety matter, what would we do?

First, we need to introduce mechanisms to introduce transparency and accountability at all stages of the investigation and prosecution of cases involving sexual violence. We know that approximately 1 out of every 20 women who experience sexual violence in Canada comes forward to the police, and the very public experience of the Ghomeshi complainants will certainly do nothing to encourage more women to come forward.

However, once a complainant decides to engage the legal system by going to the police, it is still unlikely that she will ever have her day in court.Recent figures show that between 2009 and 2013 in Ottawa, a woman who reported to the police that she had been sexually assaulted had a 38 percent chance that her case would be deemed to be an “unfounded” complaint, and even if it was “founded,” only a 19 percent chance that the attacker would be charged (these figures are reported to have improved after some changes were implemented by the police in late 2013).

For this reason, women’s advocates and their allies have been pushing for the adoption of the “Philadelphia model” for review of the police treatment of sexual assault cases. Following a scandal in the 1990s that revealed that the Philadelphia police harboured a culture where rape victims were routinely belittled and their reports ignored by the officers and detectives assigned to investigate their cases, Philadelphia has now become a model for how to investigate crimes of sexual violence by allowing concluded investigations to be audited by independent victims’ and women’s advocates. One wonders why police forces in Canada would be resistant to independent oversight if they were truly interested in apprehending offenders and adopting best practices for the resolution of sexual assault cases.

Second, as the Ghomeshi trial highlights, women need to have their own independent legal advice at all stages of the process of reporting, investigating and prosecution of an offence. Although two of the Ghomeshi complainants had private counsel to advise them on media issues and aspects of the trial process, their lawyers were not afforded a role at the trial itself. Even if charges are laid, a survivor’s journey through the court system presents the risk that any forgotten event, misspoken word or other so-called “misstep” by the survivor could result in an acquittal.

In 2002, the Department of Justice recognized that access to independent legal counsel would well serve the needs of sexual assault complainants. A number of European jurisdictions, most notably Norway, grant complainants the right to have a lawyer represent their interests in criminal proceedings, including by preparing the victim for the court process and the right to protect the victim during questioning by police and in court. At the Ghomeshi trial, the judge relied on the complainants’ failure to disclose information that the complainants thought was irrelevant as a reason to discount each complainant’s credibility. One can only speculate whether the verdict might have been different if each woman had had a lawyer to advise her of this risk at the outset.

Many other criminal law reforms are possible. We could introduce an evidentiary presumption that post-offence conduct by the complainant is inadmissible. We could put hard limits on the form of cross-examination of complainants, as suggested by Elaine Craig and David Tanovich, and we could endorse another suggestion by Tanovich to reform the rules of evidence for sexual offences so as to presumptively allow the prosecution to rely on evidence of the accused’s past sexual misconduct against other victims in order show his propensity to commit the crime charged.

If we cannot or will not condemn these acts through the criminal law, then we must at the very least invest seriously in women’s recovery from the aftermath of sexual violence. The costs of counselling; the safety measures; and the educational, occupational and other economic losses women experience as the results of assault should be shared across Canadian society and not borne by the survivor alone. We know that the amounts provided through criminal injuries compensation schemes do not come even close to the true costs of sexual violence that women must shoulder, and that civil litigation is too expensive and time-consuming to be widely available to those who have been assaulted.

The Ghomeshi trial should inspire neither complacency about nor abandonment of the criminal law. Instead it points to the urgent need for the federal government to take on the critical task of developing a comprehensive national action plan on violence against women. Taking Australia’s lead, and in consultation with community-based women’s organizations and experts, we must engage in a careful review of all provincial and federal laws, policies and actual practices in order to identify inconsistencies, gaps and best practices. From there the federal government should commit to a concrete plan, with necessary reforms, expected outcomes and monitoring to assess our progress toward eliminating male violence against women. And in doing so, it is also clear that they must take leadership from the independent women’s movement, whose track record over 40 years across 70 countries has been demonstrated to be the most important factor in changing policy and practice on violence against women. Let’s get busy.