Content warning: The following story contains mentions of sexual assault. Please proceed with caution and care. If you require support, there are resources available.
The number of decisions a survivor must make in the wake of a sexual assault is dizzying.
Whether to go to the hospital; whether to agree to a forensic examination; whether to report the assault to police and start a criminal investigation, or launch a civil action against the assailant.
Survivors must make these decisions within a limited amount of time. DNA evidence, for example, can generally only be collected within 72 hours of an assault. While the specialized medical and psychological support offered by a group like Calgary’s Sexual Assault Response Team is only available for a week.
And too often, survivors must make these decisions on their own. All while coming to terms with the violence they’ve endured.
That’s an injustice.
The criminal justice system isn’t built for survivors
It’s an injustice that the criminal justice system only magnifies.
Canadian society rewards the perpetrators of sexual assault by all-but indemnifying them. Fewer than 1% of the sexual assaults that occur each year result in legal consequences for their perpetrators.
Meanwhile, those survivors who choose to report their victimization face a criminal justice process that the Supreme Court itself has recognized “can be invasive, humiliating, and degrading for victims of sexual offences”. Complainants are too often subject to brutal cross-examinations that emphasize “whacking” the complainant; or encounter discriminatory myths and stereotypes about sexual assault survivors, like that a victim’s previous sexual activities make her less worthy of belief.
Is it any wonder that, in the words of Dalhousie law professor Elaine Craig, “numerous studies have concluded that, despite progressive law reforms aimed at protecting witnesses in sexual assault cases, for many the impact of testifying as a sexual assault complainant remains traumatizing and harmful.”
What’s more, survivors must navigate the criminal justice system without the benefit of legal counsel.
Crown prosecutors represent the public, not complainants. Any charges the Crown lays are the state’s; this means a survivor cannot choose to withdraw them if she has a change of heart.
Meanwhile, defense lawyers represent the accused, working in opposition to complainants and their evidence.
The bottom line: Those few, brave sexual assault survivors who report their victimization have to navigate an often-hostile process by themselves. And too often this leads to their revictimization at the hands of the criminal justice system.
All of this is reflected in the low participation rate of sexual assault survivors in the criminal justice system. Only 6% of all sexual assaults are reported to the police, making it the most underreported crime in Canada.
Indeed, it’s a wonder any survivors report their victimization at all.
The ways lawyers can help
One solution is to make legal aid lawyers available to sexual assault survivors, regardless of whether those survivors choose to report their victimization to law enforcement.
In my home province of Alberta, this would look like providing certificates that survivors can redeem at participating law offices for legal services and advice, irrespective of survivors’ income.
There are lots of ways such a program would make the criminal justice system fairer and more humane for survivors.
From the get-go, legal aid lawyers could provide survivors with expert information and advice about whether to report their victimization at all. Information about, among other things, what participation in the criminal justice system looks like; what the potential harms are, and whether those harms outweigh any possible benefit; even what the likelihood of conviction is in a given case.
If a survivor does decide to make a report, a legal aid lawyer could liaise between the survivor and the police or Crown prosecutor’s office; removing the burden from complainants to keep abreast of developments in their case, and explaining any developments that come their way.
If the matter goes to trial, a legal aid lawyer could prep the survivor for the process of giving evidence in court.
Now to be sure, Crown prosecutors have a professional obligation to prep their witnesses for trial, which includes prepping survivors for the sorts of questions they are likely to be asked in cross-examination. But remember, the Crown doesn’t represent survivors. A lawyer acting for the complainant could prep them for questioning by both the Crown and the defense in a way that is sensitive to the complainant’s fears and interests. For example, the lawyer could start prepping their client far in advance of the trial in order to desensitize them to the trauma of having to relive the violence they suffered, something the Crown prosecutor is unlikely to have the time to do.
Finally, if an abuser is convicted, a legal aid lawyer can provide the survivor with assistance in drafting a victim impact statement and a statement on restitution. There are rules about what can and cannot be included in both; as well, each document needs to be drafted in such a way that it helps the judge make an informed sentencing decision. A lawyer would have the expertise to ensure a complainant drafts these documents in valid and effective ways.
Removing the burden from survivor organizations
To be sure, some of these services are already provided by survivor support organizations. Calgary Communities Against Sexual Abuse, for example, provides survivors with information about their reporting options, assistance with writing a victim impact statement, and accompaniment to court.
But there are limits to what organizations primarily staffed by social workers can provide victims navigating the legal system.
For one thing, they can’t provide legal advice. They lack the expertise in the nuances of the law and the legal system that come from formal legal training and practice experience.
For another, they don’t owe clients the same duty of fearless and zealous advocacy that lawyers do at law.
Complainants deserve someone who will do more than simply support them. They deserve someone who will fight for them and their interests if it comes to it.
Making state-funded legal counsel available to survivors would remove the burden from survivor support organizations to provide quasi-legal services and allow them to specialize in what they do best: providing emotional and social support to victims of sexual abuse.
A modest proposal
Nothing about what I’m proposing is radical.
Canada already recognizes survivors’ right to legal counsel in a select few circumstances.
Take the records-screening regime, which applies to documents related to, among other things, medical treatments or counselling services a survivor has received.
Under section 278.3 of the Criminal Code, an accused in possession of such documents must seek permission from the judge trying their case before introducing those documents into evidence at trial. There are plenty of reasons why such documents might not be admissible, and complainants have a right under the Criminal Code to make submissions about the documents’ admissibility with the aid of legal counsel.
More broadly, some provinces have already established programs to provide free, independent legal advice to sexual assault survivors. In Ontario, for example, survivors are entitled to up to four hours of free legal advice by phone or video at any point after the assault has occurred; importantly, however, this program does not provide for legal representation. A similar initiative exists in Nova Scotia, which entitles survivors to up to two hours of legal advice.
These rights and programs are important, but insufficient.
Survivors in every province deserve legal advice and representation at all stages, including before a matter is reported to the police. And they deserve as much legal support as is necessary to help them navigate the criminal justice system, not an arbitrarily limited number of hours of advice.
A national program to provide free legal counsel to sexual assault survivors is necessary.
In the end, it’s a matter of justice in the face of extreme physical and psychological trauma.
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