Sexual Assault and the Failure of the Legal Profession
– Book Review –
In her book, Putting Trials on Trial: Sexual Assault and the Failure of the Legal Profession, Elaine Craig, Associate Professor of Law at Dalhousie University, challenges the dominant narrative that since the law has changed, women are no longer subjected to humiliating and harmful treatment in the courts in sexual assault cases.
Craig accuses the courts of failure to uphold the law. The issue is not one of infringing on the presumption of innocence but one of not serving the cause of justice. Her interviews with crown attorneys and defence lawyers, study of court transcripts and other research expose an ignorance of the written provisions regarding sexual assault, and a failure to uphold those laws and properly prepare women victims (complainants) for the ordeal they face in court or provide them with the necessary resources.
The criminal code was said to have been amended to protect women from discriminatory stereotypes or unnecessary infringements on their privacy and human dignity. Craig found that frequently the crown prosecutor would not object and the judge would do nothing to stop the introduction of illegal evidence, which does not meet the test required by law not to offend the victim. They also permitted cross-examination that was clearly unnecessary and contributed nothing concerning the alleged crime.
Craig found that women were unfamiliar with the court process and the crown attorney did little if anything to prepare them. The results of this are not hard to imagine. The victims often face a person who held power or authority over them. A defendant with deep pockets can hire a lawyer who spends a lot of time preparing the accused for the trial. At trial the defence attorney is often allowed to pursue lines of questioning that have no purpose other than to humiliate the witness and confuse the jury about what is relevant. Sometimes the court experience is so bad the victim refuses to return. In Alberta in such cases, the response has been to arrest the victim. In one case where an Indigenous woman had suffered a terrible assault and did not want to appear in court and see her aggressor, the police not only arrested her and put her in jail but forced her to travel handcuffed and in leg shackles from prison to the courthouse in the same van as her assailant!
Craig also found cases where the reasoning of the judges reflected a shocking ignorance of how the law of sexual violence is supposed to work. She points out that in these cases a risk emerges that the judges will rely on ingrained stereotypes, which the law reforms were supposed to eradicate. A picture emerges of judges being appointed as a reward for a career serving the ruling elite in one way or another. This career could be specializing in matters like corporate mergers and tax avoidance, where they gain no experience or training in the laws governing sexual assault. They exhibit no empathy for the victims and their rulings reflect not a law and process serving justice but a racist and misogynist outlook, prejudice and stereotypes, she writes.
Likewise she charges, many crown attorneys do not give cases of sexual assault the attention they deserve, and the judicial system does not provide the needed resources. She reveals a picture of police whose investigations are so glaringly deficient that complete indifference seems to be the only explanation. All this is most prevalent and has given rise to outrageous violations of justice, which the Inquiry into Murdered and Missing Indigenous Women exposed.
The rule of law by any modern understanding must serve the cause of justice. When the judicial system acts in contempt of such a rule of law, fails to provide proper representation to women who report assault on their person, permits their humiliation and violates their human dignity, it cannot be called justice.
1. The word « complainant » is used in court instead of victim. The legal sense of complainant is meant to acknowledge that investigation, evidence, trial and verdict are required before an accused person, the defendant, can be considered guilty of perpetrating a crime.
2. A modern rule of law serving the cause of justice cannot be satisfied with sorting out right or wrong, or guilty or not-guilty in violations of the law. It must, importantly, reflect on and analyse the social conditions giving rise to such violations and propose changes.