Trials and Error: Canadian Law and Sexual Assault Trials

Photo courtesy of Creative Commons

Content warning: sexual assault, gendered violence

On November 7, McGill’s Faculty of Law held its annual Patricia Allen Memorial Lecture. This year’s talk featured Elaine Craig, a professor from Dalhousie’s Schulich School of Law, and highlighted key points from her newly published book, Putting Trials on Trial: Sexual Assault and the Failure of the Legal Profession.

Craig opened the talk by pointing out the “superhuman feat” that Canada’s legal system expects sexual assault survivors to achieve. In most cases, the system requires that complainants recall every specific detail of the ordeal without a single discrepancy, all while making themselves completely vulnerable in the presence of people they do not know. Legal professionals in these cases tend to view any miniscule mistake in the complainant’s narrative as a lack of truth, putting immense pressure on survivors to recount their traumatic experiences without skipping a beat. Craig emphasized that the burden of this unrealistic expectation falls disproportionately on Indigenous women, women of color, and poor and disabled women.

Craig used the majority of her lecture to outline “three unnecessary harms” often imposed on complainants throughout their sexual assault trials: the failure to protect them, the failure to prepare them, and the failure to accommodate them. Her book contains countless examples of these failures from recent trials, as well as possible solutions for improving this process for complainants while maintaining the rights of the accused.

In discussing the failure of the legal system to protect survivors in trial, Craig cited a case from 2013 in Alberta, in which the complainant repeatedly refused aggressive sexual advances, and after fifteen minutes of trying to fight off the accused, the woman simply gave up. The subsequent line of questioning that the trial’s defense attorney followed implied that the accuser “let [the assault] happen”, served to undermine the accuser’s testimony, and eventually led to the acquittal of the accused. These actions are echoed in numerous sexual assault cases, most notably the infamous 2014 trial in Calgary, Alberta, during which former-Federal Judge, Robin Camp, pressed the complainant about several actions she could have supposedly taken to prevent her assault.

This discriminatory line of questioning, according to Craig, perpetuates the incorrect notion that women who do not want to be raped can simply “fight off” or deflect their attacker. She insists that defence lawyers are “ethically obligated” not to pursue such questioning, and if they do, the judge is responsible for stopping them. Craig proposed that requiring defence attorneys to adhere to fair and non-discriminatory methods of questioning is one way to help protect survivors during trials.

Craig pointed to another negative stereotype often used to belittle complainants in sexual assault cases: the “promiscuous party-girl” stereotype. In a 2017 trial in Halifax, Nova Scotia, a driver was accused of raping a woman he picked up in his cab. Despite abundant physical evidence that the rape occurred and that the woman had been far too intoxicated to consent, the accused was acquitted. This is due to the defence’s tactical portrayal of the complainant’s drunk persona as “Drunk Jane”: a woman whose use of alcohol turns her into a completely different, uninhibited individual with questionable judgement. The defence cited her “inappropriate” dancing with a man at a bar earlier that night as evidence against her, reinforcing the false stereotype that women who are sexually active or expressive are more likely to have agreed to sex, less credible, and therefore unworthy of protection under the law.

Craig used this case to transition into her discussion of Canada’s rape-shield laws, which are supposed to protect sexual assault complainants from invasive and irrelevant analysis of their sex lives. She stated that in many cases, these protective regulations are ignored by lawyers or not enforced by judges, leaving survivors vulnerable to having their past sexual behavior or communications used as evidence against them in trial.

She used a case from Newfoundland in 2014 as an example; the judge in this trial allowed sexually explicit text messages that the complainant had sent to the accused, as well as the transcript of an explicit video they had made, to be submitted to the jury as evidence. Here, the defence put the complainant’s prior sexual behavior on display in an attempt to undermine her credibility. This violation of the rape-shield laws and the judge’s inaction in upholding them, according to Craig, shows a blatant failure to protect survivors during these processes.

In many cases, these protective regulations are ignored by lawyers or not enforced by judges, leaving survivors vulnerable to having their past sexual behavior or communications used as evidence against them in trial.

Next, Craig proceeded to examine the system’s failure to properly prepare survivors for what they will face in court. She maintained that complainants suffer severe consequences in trials when they are not given the preparation they need. Specifically, an unprepared complainant essentially becomes a “sitting duck”; a lack of knowledge about the trial process or inadequate preparation for tricky lines of inquiry can easily shake the complainant’s confidence when they have to testify. Craig maintains that, in order to assure a fair trial, complainants should be familiarized with the legal process, the complex language that legal professionals use, and the courtroom itself.

Finally, Craig addressed the system’s failure to accommodate survivors as they go through the ordeal of a trial, and proposed various ways to improve the legal system by creating a less threatening court setting. She noted problems with the organization of Canadian courtrooms; for example, witnesses in sexual assault trials sometimes have to stay standing for hours over the course of a few days as they testify.

With this in mind, she added that courtrooms are currently set up to reflect a hierarchy, and “reinforce gender-based power dynamics that leave some survivors feeling shame and blame for the sexual assault that they have experienced.” Craig has noticed that courthouses in Canada are often covered with intimidating portraits of old, white men. This judicial portraiture conveys a colonialist, hyper-masculine message that does not reflect the diversity of the community. Overall, Craig believes that Canadian courtrooms should be modernized aesthetically to make them less daunting.

Craig does think that the recommendations in her book are realistic and achievable, and that making the trial experience less traumatic for the complainant “poses no threat to the presumption of innocence” of the accused. However, she affirmed that protecting complainants in trial is not synonymous with lessening the pain they have endured. Craig explained that sexual assault trials are not meant to heal complainants, only to prove whether the accused committed the crime, stating: “I am not trying to marry healing with justice in this work”.

She made clear that some judges and lawyers who handle sexual assault trials do try to treat complainants with dignity, fairness, and humanity. But taking into account the three “unnecessary harms” addressed in the lecture, she ultimately resolved: “I see a failure to empathize, a failure to see the humanity [of complainants]… And I think what drives that failure is a lack of humility among legal professionals.” She feels that “lawyers and judges are just a reflection of their social context,” and that improving the cultural perception of sexual assault complainants will help change the mindset that exists within the field of law.

When asked if Section 276 of the Canadian Criminal Code, which encompasses Canada’s rape shield laws, needs to be altered, Craig asserted that the necessary changes to these provisions would be modest. She acknowledged that Canada’s sexual assault laws are generally progressive, therefore legislative solutions are not the first step to be considered in improving the legal system for complainants. Ultimately, there is a “cultural shift that needs to happen” in order to facilitate meaningful change.


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