Ottawa Citizen by Elizabeth Sheehy, Sunny Marriner and Sabrina Heyde 16 August 2017
When will they ever learn?
Last month, the Citizen reported that Ottawa police had declared “unfounded” yet another woman’s sexual assault report. The police explanation for the decision reveals that they continue to operate under a mistaken interpretation of the law of sexual assault, as well as confusion about their role in the criminal process.
The story described a woman identified as “K,” who went to the apartment of a man she had met on Tinder. Once there, she said, this man embarked on rough sex, slapping and grabbing her, and ramming his penis down her throat. Then, his room-mate walked into the bedroom, and also forced himself on her. K fled the apartment when she was able, and reported the attack within hours at the police station.
In many ways, what happened to K when she reported the assault to police was just as much a violation as what happened to her in that apartment. We learned that the initial police response was, “Are you sure you didn’t want it?” Police later closed K’s case as “unfounded” because they decided that there was “no criminal element to the file,” claiming that K had not communicated to the men that she did not want to have sex. The Citizen also quoted Staff Sgt. Alison Cookson saying that for charges to proceed, “We have to look at the Crown’s standards. There has to be a prospect of conviction.”
In fact, K said that once in the apartment, she “insisted that she was not interested in a threesome.” She also struggled against the two men and tried to prevent their assault. Even if she had not resisted, the Supreme Court, in the case of Ewanchuk in 1999, made it clear that there is no such thing as “implied consent.” This means that just as with any other crime, unless you communicate that you want your person or property to be violated, it is to be understood that you don’t want that. What this suggests is that Ottawa police both refused to credit K’s resistance and misapplied a clear and well-established legal rule.
A second problem that the reporting on K’s case reveals is one that sexual assault centre advocates have known for a long time: Some police misunderstand their role in a sexual assault investigation. Instead of applying the standard that needs to be met to arrest and charge an individual, that of “reasonable and probable grounds” to believe a crime occurred, police may invoke the standard used by the Crown to assess whether to proceed to trial, that of a “reasonable prospect of conviction.” This is a higher standard and one that must be weighed by Crown attorneys, not police.
A third problem that the Citizen story highlights is the manner in which police “investigate” these reports. The first response of the officer receiving K’s complaint, according to the article, was to suggest to a weeping woman that she may have “wanted it.” This kind of aggressive response is not helpful for those who have experienced traumatic injury – in terms of either establishing their trust or drawing out their evidence.
While we do not know whether Ottawa police ever followed up on the many pieces of evidence K provided, or whether they actually tracked down and interviewed the men she identified, we do know that her takeaway from her “exit” interview was that police exhorted her to “take accountability for her actions.”
These are just some of the many reasons why sexual assault centre advocates have long pushed for the adoption of Advocate Case Review (“the Philadelphia Model”), an approach where sexual assault cases dismissed as “unfounded” are independently reviewed by sexual assault centre advocates to ensure that they are not closed prematurely or for erroneous reasons. Implementing this model also means that survivors such as K don’t have to fight for themselves or “come out” in the media as having been first victimized, then disbelieved. Recourse is systemic, not individual.
While the Ottawa Police Service has agreed to implement Advocate Case Review, a change we hope will be the first step in a very long road to improving women’s rights, it’s been almost two decades since the Supreme Court clarified the law of consent. And the problem of erroneous unfounding has continued to plague our city, despite the alarm being sounded as early as 1974 by the Ottawa Rape Crisis Centre.
Women in Ottawa are on notice that should they be willing to shoulder the heavy burden of reporting the crime of sexual assault, they may be shamed and sent packing. This latest betrayal of women’s trust in police surely tells us that the crisis of unfounding is both persistent and perilous for women in Ottawa.
Elizabeth Sheehy is a University of Ottawa law professor and also a member of the ORCC board. Sunny Marriner is Executive Director of the ORCC. Sabrina Heyde is a lawyer with the federal government and President of the Ottawa Rape Crisis Centre’s board.