Last week’s media storm over the Jian Ghomeshi trial may have left the impression that women’s equality advocates are unconcerned about fair trials for accused. Quite the opposite. We too believe in due process, the presumption of innocence and the right of full answer and defence. We especially worry about the overrepresentation of women and men from marginalized communities in the criminal system. We agree that their vulnerability to the power of the state requires rigorous defence.
But sex assault cases are different. Plain and simple.
In no other category of trial are discriminatory assumptions about how a witness ought to behave trotted out as regularly. The questioning and assessment of evidence of rape have been resistant to the progressive reform on the books. We work with women every day for whom this reality is a shattering truth.
But don’t take our word for it.
The work of researchers such as David Tanovich and Elaine Craig shows that despite reforms to sexual assault laws, there is a yawning chasm between the black letter law and what happens in the courtroom. Sexual assault witnesses continue to be held to a standard of behaviour that is out of step with how rape survivors respond in real life.
Their credibility continues to be attacked on the basis of legally rejected stereotypes about women and sex: “What were you wearing?” “Isn’t it true you were flirting with him all night?” “If you were raped, you wouldn’t have sent him an email the next day or week, correct?” “You said you had two drinks with him, but wasn’t it really three?” “Why didn’t you scream, punch, hit and kick?” “Why did you let him drive you home when it was over? Or see him the next day?” Judges don’t interfere in this line of questioning because these questions are permitted. In fact, they’re the core of the rape trial cross-examination script.
Do we ask the man whose house was robbed if he left his curtains open to invite the robber? If he already knew the robber and wanted this to happen?
Contrary to assurances about the effectiveness of the rape shield laws, evidence that goes to a woman’s sexual reputation or past sexual conduct with the accused or others is commonplace, not the exception. What else are the questions “Did you send him emails of you in a bikini?” or “What was your relationship with your boyfriend like at the time” really about?
Sex assault complainants are held to a standard of consistency and precision in the telling of their rapes that is inhuman. Almost two decades ago, the so-called Jane Doe Audit of Police Sexual Assault Practices confirmed that memory and recall operate differently in the crime of sexual assault. This doesn’t mean the crime didn’t happen. Our response to trauma is a primal reaction to threat. Our brains click into survival mode and are not creating an instantaneous catalogue of events.
Moreover, in a world of gender inequality where being raped stigmatizes the victim, we often minimize, deny and compartmentalize. There is a constellation of human responses to cope with trauma and shame. Yet the criminal trial has not adjusted. Inconsistencies on peripheral or extraneous matters routinely result in acquittals: why is her incorrect recollection of the colour of the bedspread an indicator of whether the rape truly happened or not?
The accused has a right to full answer and defence. He does not have a right to an outmoded and myth-bound approach to the survivors of his alleged crimes. Our criminal system allows this discrimination to persist.
Fewer than 10 per cent of sexual assault victims will report to authorities. Even fewer go to trial. Fewer still are convicted. This too makes sex assault unlike any other crime. We are dangerously close to creating the conditions for impunity.
We all have an interest in changing that.
Neither complainants nor accused should be subjected to discriminatory trials. Now is the time to have an honest conversation about how to protect full answer and defence without resorting to misogynist standards and practices. Such myths undermine the administration of justice. After all, these are not hypothetical fact scenarios; these are our friends, lovers, wives, sisters, mothers and daughters, just trying to live lives free from violence. Their — and our — fundamental liberty is at stake.
– Joanna Birenbaum is a lawyer at Ursel Phillips Fellows Hopkinson LLP and adjunct faculty at Osgoode Hall Law School. Pamela Cross is legal director of Luke’s Place Support and Resource Centre for women. Amanda Dale is executive director of the Barbra Schlifer Commemorative Clinic