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Aiming for Justice: The Legal System Has Failed Sexual Assault Survivors. It's Time for Change.

The #MeToo movement marks a thrillingly transformative moment in history. In just two years, the words of harassed and assaulted women have gained the force to bring down powerful men in media, entertainment, politics and sport. But in the one institution meant to deal with sexual violence--the justice system--women's voices are still choked and enfeebled, rendering assault victims all but powerless.

The need for change is urgent.

Law professor Elaine Craig recently wrote Putting Trials on Trial: Sexual Assault and the Failure of the Legal Profession (McGill-Queen's University Press), a book that challenges a legal system that, in spite of the #MeToo movement, still puts rape victims on trial. Craig presents a rigorous feminist analysis based on a close reading of 20 recent sexual assault trial transcripts, exposing the ways that Canada's judges, criminal lawyers, prosecutors and police often fail spectacularly to deliver justice.

Craig, an associate professor at the Schulich School of Law at Dalhousie University, names names and quotes transcripts to make her case. After all, as she states up front, fewer than one percent of sexual assaults result in any form of legal sanction. Statistics Canada, for its part, cautiously estimates that only five percent of sexual assaults in Canada are reported to the police. Of the reported sexual assaults that go to trial, about one in 10 lead to a conviction. A mere seven percent result in a jail sentence. No other type of physical assault is as likely to go unpunished.

A failure on this scale is not only profoundly sexist, since a majority of victims are female, it is also self-perpetuating. The more the system shrugs off sexual violence, the more the judicial process is seen as unjust to the already victimized complainant, and the more sexual assault victims decide not to report.

"Trials can be a brutal, intimidating process for the victim," Craig says, "but courts are still the most significant resource we have in combatting sexual violence. We can't let them off the hook."

Janine Benedet agrees. She's a professor of law at the University of British Columbia. "Women are reluctant to report and then they also feel guilty for not reporting," Benedet says. Yet the lack of reporting is the responsibility of the state, not of individual women.

"Currently, the system fails on the most basic level: rape victims are in court only as witnesses." This means that they are required to take the stand, unlike the accused. And unlike the defendant, a witness is not automatically provided legal representation, even though they can expect to be subjected to aggressive questioning in a bid to undermine their credibility. Most advocates believe sexual assault victims who testify should be provided with some form of legal support.

For decades, criminal lawyers who used aggressive tactics to destroy complainants' testimonies were admired and lionized by their colleagues. Criminal lawyers routinely "whacked" complainants hard in preliminary hearings in order to get them to abandon their complaints.

After the Supreme Court of Canada overturned an Alberta appeal court's 1999 acquittal of a man accused of rape, critiquing the judge's sexism and "mythic assumptions," Edward Greenspan, one of the country's most vociferous criminal lawyers, howled in outrage. Greenspan, who died in 2014, said that "feminist influence has amounted to intimidation... a potential danger to judicial independence."

Further, the practice of whacking was singled out in a 1999 Supreme Court ruling, which stated that the accused is not "permitted to 'whack the complainant' through the use of stereotypes regarding victims of sexual assault."

While the views of some lawyers may be shifting, Craig shows that sexist bullying and rape shaming are not things of the past. Here--brace yourself--is just one example, from a 2014 Alberta case.

She was a 19-year-old Indigenous woman and the assault was as brutal as it could be: the accused, Mohamed Khaery, slapped her repeatedly, forced her to crawl, bit her hard enough to break the skin, threatened to cut her into pieces if she didn't stop screaming (he was a butcher) and forced his penis into her mouth and then into her vagina. A roommate called 911 and yet, even when four police officers rushed in and shouted at him to stop, Khaery had to be pulled forcibly off the naked, screaming victim.

It's hard to imagine a more open-and-shut criminal case. Unlike the vast majority of sexual assaults, there was no possibility of the victim failing to report to the police; four police officers, after all, were witnesses.

And yet, the cross-examination of the complainant stretched out over five exhausting days. Naeem Rauf, the defendant's lawyer, repeatedly suggested the victim was lying and forced her to describe the sexual acts. The young woman, compelled against her will to testify, was so distraught by the grilling she endured on the stand that she refused to return to court. She was then arrested and compelled to return. Halfway through the week-long cross-questioning, she tried to admit herself to hospital, fearful that she was being driven to suicide. The next day, Rauf questioned the witness about whether she had gone to hospital because she had overdosed on drugs. Over and over, she expressed agony at having to re-live the assault.

In the end, Khaery was convicted of sexual assault causing bodily harm, assault, unlawful confinement and uttering a death threat. The week after the trial, Naeem Rauf was honoured as Edmonton's 2014 Criminal Lawyer of the Year, praised as someone who fought to "make the justice system fairer for all."

Craig takes pains to express respect for the work that criminal lawyers do in defending people from marginalized communities and protecting those accused of crimes by the over-riding powers of the state. The defence lawyers she interviewed affirmed deeply felt obligations as "officers of the court" and rejected stereotypes about victims of sexual assault. Almost all insisted that no self-respecting criminal lawyer would resort to humiliating a complainant to undermine her credibility or try to "scare off" the prosecution by demeaning a witness at a preliminary hearing.

And yet, Craig cites multiple scenarios from recent sexual assault trials involving pit bull tactics. Judges hesitate to stop such questioning, Craig believes, because they may be uneducated about the law or may hold sexist beliefs themselves. Judges may also hesitate out of fear a judgement will be overturned on the basis that the judge interfered with the right of the defence to question a witness.

Crown prosecutors too frequently seem inert when criminal lawyers cross the line, even though it is their job to prosecute the person on trial, uphold the law and prevent discriminatory practices.

Our legal system is still profoundly patriarchal. Most of the powerful figures in court are male; their elaborate courtesies to each other, their robes and solemn formalities and tones of collegial respect, stand in harsh contrast to the contempt, the aggressive grilling, the sly innuendo and the demeaning accusations to which victims of sexual assault are often subjected.

Craig argues that courts should abandon their colonialist pomp and royal emblems, archaic formal language and hallways lined with portraits of solemn men in robes.

Sexual assault laws have seen some reforms over the last two decades. For example, it's been made clearer, under the law, that affirmative consent to sex--a clear "yes," not merely passive silence--is required. However, the powerless position of the victim/witness of sexual assault in court has not changed.

Section 276(1) of the Criminal Code is the "rape shield" law introduced by former Justice Minister Kim Campbell in 1992. It was an attempt to banish the kinds of sexist rape myths that poison rape trials: the belief that a sexually experienced woman is less trustworthy and more likely to have agreed to sex, and that enticing clothing or seductive behaviour can excuse a violent assault. Rape shield law also restricts the use of a victim's prior sexual history in court and limits the use of a victim's personal therapy records to discredit their testimony.

Rape shield law, however, is also riddled with holes. When the case involves two people who were once in a relationship, prior sexual behaviour is still frequently dragged into defence arguments. Defence lawyers, Craig points out, still argue that a victim flirted with or enticed the accused. And three times in the past year, the Supreme Court overturned lower court rulings that involved the use of prior sexual history as evidence in sexual assault trials. Craig believes that law societies, which are charged with regulating lawyers in the interest of the public, should sanction members who engage in unethical and discriminatory practices.

Many of the most basic mechanisms of our court system work against a greater public understanding of the scope of the crisis. Most of us have little idea about the crude travesties perpetuated by lawyers and judges unless an alert journalist happens to be present in court. Sometimes there are no recorded judgements for rulings. When transcripts do exist, they are often late or impossibly expensive. When it comes to sexual assault, the justice system is the opposite of transparent. Increased public awareness about what goes on in sexual assault trials could pressure courts to change. Craig wants the federal government to pay for transcripts and make them publicly accessible.

Knowing what goes on at these trials can lead to change. In September, a Nova Scotia court ruled for a second time that taxi driver Bassam Al-Rawi was not guilty of sexually assaulting a female passenger in 2015. The woman was found by police, unconscious, in the back seat of his taxi, "naked from the breasts down," while Al-Rawi, pants undone, hastily concealed her underwear. Al-Rawi had her DNA on his lips. There was a public uproar after Judge Gregory E. Lenehan acquitted Al-Rawi, opining that "Clearly, a drunk can consent." In 2017, in response to the case, then Justice Minister Jody Wilson-Raybould introduced a Criminal Code amendment stating that an unconscious person cannot consent to sexual activity.

Nevertheless, Appeal Court Judge Ann Marie Simmons upheld Al-Rawi's acquittal, this time on the grounds that the assault was not proven beyond a reasonable doubt. According to Judge Simmons, a person who intended to commit rape would not have stopped his car in clear view in a residential neighbourhood at 1 a.m.

Beliefs like this feed into "an enormous culture of denial [and] a deep resistance to believing how pervasive sexual assault is," according to Janine Benedet.

Craig, however, is far from despairing about the hurdles to law reform. Since her book was published last year, she has received a "surprising number" of appreciative responses from judges and criminal lawyers alike. Some confided that her findings have influenced the way they conduct themselves at trials, and Craig feels hopeful about "small, incremental improvements" in the legal system.

Two years ago, Bill C-337, the Judicial Accountability Through Sexual Assault Law Training Act, was introduced as a private member's bill by Conservative MP Rona Ambrose. The bill aimed to make training in sexual assault law and domestic assault law compulsory for all federally appointed judges. Passed unanimously by the House of Commons, Bill C-337 was effectively killed by Conservatives in the Senate. Many parliamentarians have vowed to introduce a similar bill in the future. Craig supports the move but believes mandatory training should apply to all judges, not only federal or newly appointed ones.

Training is critical. Consider Judge Robin Camp, who, in a 2014 Alberta rape trial, repeatedly called the Indigenous rape victim "the accused." The teen had been attacked in a bathroom and Camp asked her why she did not "just sink your bottom down into the basin so he couldn't penetrate you?"

After Camp acquitted the man, Elaine Craig and three other law professors lodged a complaint with the Canadian Judicial Council. Camp stepped down and, after a year's absence from court, was allowed to return to practice as a lawyer. Camp, who specialized in commercial litigation before being appointed to the federal bench by Conservative Prime Minister Stephen Harper, admitted he knew little about sexual assault law.

More diversity on the bench would also help. One distinguished observer, Elizabeth Sheehy, a law professor at the University of Ottawa, thinks feminists should lobby for the appointment of judges who are Indigenous and people of colour to the Supreme Court.

In Halifax, a new organization, the Canadian Centre for Legal Innovation in Sexual Assault Response, has been created to examine ways to improve the effectiveness of the legal system's handling of sexual violence cases. Craig, a co-founder, is the organization's research director. Kim Brooks, also a professor at the Schulich School of Law at Dalhousie University, and Jocelyn Downie, who teaches public policy and the law at Dalhousie, are board members, along with Michelle Y. Williams, director of the Indigenous Blacks and Mi'kmaq Initiative at the Schulich School of Law.

Williams said in an interview that the Centre hopes to generate conversations about the legal challenges facing Black and Indigenous women and girls who are sexual assault survivors. She says it aims "to reflect the direction set by the Missing and Murdered Indigenous Women and Girls Report's Calls to Justice."

The court system is not the only form of redress for assaulted women. Since the #MeToo movement began in 2017, many survivors have found affirmation and healing in the widespread support they received via social media. They were heard--some for the first time--and many felt vindicated.

It's not enough--there must be justice in the courts as well--but the impact of the #MeToo movement is rippling outward to change public thinking. In the recent British election, five sexual assault survivors ran as candidates against five sitting members of the British Parliament who had been accused of sexual offences.

The surge of awareness fuelled by emboldened survivors who speak out is a tide of clean water rolling onto a polluted shoreline. It will take time and ceaseless effort, but eventually the rape culture, built on the sand of lies and misogyny, will begin to crumble and wash away.

by MICHELE LANDSBERG
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Author:Landsberg, Michele
Publication:Herizons
Geographic Code:1CANA
Date:Jan 1, 2020
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