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Every right-thinking person understands that the balance of equality between genders is still markedly tilted towards men. There have been and continue to be progressive steps, but there is a long way to go. And the more so in many parts of the developing world where women are still dramatically disadvantaged — to say nothing of places like Saudi Arabia and the Daesh-controlled areas of Iraq and Syria where abject medievalism prevails.
And all this is certainly apparent when it comes to the issue of sexual assault. There is compelling evidence that even in the developed world — for instance in Canada — that sexual assault is under-reported and under-prosecuted. That even when it is, the trauma, stigma, and emotional turmoil often associated with the legal process makes it a minefield for complainants to navigate.
This needs to change.
And it bears pointing out that there has been consequential change.
In 1983, in Bill C-127, rape was moved from the area of property law where it had originated, and which reflected deep-seated sexism, into the realm of crime against person, hence the change in terminology from rape to sexual assault.
In 1992 Canada enacted so-called “rape shield” legislation (Bill C-49), which greatly limited, and in most cases eliminated, the admissibility of any questions related to a witness’s previous sexual history, which were also perniciously sexist.
These changes were made at the behest of feminists and with the involvement of frontline rape and transition-house workers and national women’s organizations that together participated in the drafting of Canadian legislation.
Still, sexual assault persists and there are significant obstacles to a just and egalitarian society for women and men. We must continue the movement initiated by Christine de Pizan in the 15th century, continued by Modesta de Pozzo di Forzi in the sixteenth century, Marie Le Jars de Gournay, Anne Bradstreet, and Françoise Poullain de la Barre in the 17th century, Mary Wollstonecraft in the 18th century, and millions of women and men who have followed in their footsteps in the 19th, 20th and the 21st centuries. That of building just and egalitarian societies in which there is no impediment to women occupying an equal standing on every personal, political, and social stage.
However, the way forward is not by abandoning core legal concepts: the presumption of innocence, reasonable doubt in determining guilt, the role of cross-examination in due process, the right of accused to remain silent. These are fundamental values of jurisprudence critical to the determination and administration of justice.
Can the legal process be difficult and gruelling? Certainly. Considerable rigour may be required to establish (as near as is possible) the facts of a case. The court needs to be dispassionate, which is not, however, incompatible with compassion. No one can simply expect to be believed, unquestioned. All sides of a story must be heard. Credibility is a factor that must and will be considered. Where courts have the power to make weighty decisions that affect lives, they have the responsibility to adhere to laws and principles of justice as they have been tested and articulated.
However noble our intentions we should not hitch them to a wagon incapable of being their vehicle. If something is not credible, we should not give it credence.
Striving for a just world involves observing principles of justice. To do otherwise is to lose faith with what propels us on this course in the first instant.
The Jian Ghomeshi trial
Those concerned with the trial of Jian Ghomeshi do not require anyone’s gloss or interpretation, mine included. Simply read Judge William Horkins’ decision yourself. It is only 25 pages long, contains next to no “legalese” and is a very clear encapsulation of the case, and how and why and on what basis the judge reached his decision. Read it and judge for yourself if the facts support his conclusions.
[Note: Since publication, Alice Woolley’s excellent article, What Ought Crown Counsel to do in Prosecuting Sexual Assault Charges? Some Post-Ghomeshi Reflections has come to my attention. While its focus is primarily on the role, responsibilities, duties, and obligations of Crown Prosecutors, it illuminates many other elements of the justice system. Highly recommended for anyone who wishes to understand the administration of justice in Canada, particularly as it relates to sexual assault.]
I will say this: I am pleased to live in a country that endeavors to adhere to the rule of law based on principles of justice. Although the legal system is clearly not perfect (What human endeavor is?) justice is far better than its opposite. Justice firmly grounded in evidence, reason, fact, plausibility, credibility, and due process. Justice Horkins wrote:
“My conclusion that the evidence in this case raises a reasonable doubt is not the same as deciding in any positive way that these events never happened. At the end of this trial, a reasonable doubt exists because it is impossible to determine, with any acceptable degree of certainty or comfort, what is true and what is false. The standard of proof in a criminal case requires sufficient clarity in the evidence to allow a confident acceptance of the essential facts.”
Where do we go from here?
Many frontline workers and others have identified elements that could be improved in the administration of justice as it pertains to sexual assault, for instance having better support staff and police personnel who are well-trained and sensitive to the particular shocks and traumas associated with sexual assault.
Courts could also appoint lawyers to represent complainants (as is already done in Germany and Denmark). The job of Crown Attorneys is to represent the Crown, in other words the law as it exists. This isn’t the same as representing complainants. Crown Attorneys are not advocates for victims per se; they are advocates for the law. Having a lawyer to specifically represent the rights and interests of victims, and prepare them for proceedings would help balance the playing field in a procedure where the accused inevitably have counsel to represent their interests. Two of the witnesses in the Jian Ghomeshi trial had their own lawyers, but this can be a costly undertaking. Court appointed representation for complainants would help redress this imbalance.
There has also been discussion about how appropriate the legal system is dealing with all of what currently is channeled into the sluiceway of “sexual assault.” The formal legal system with its very high standards of proof and its adversarial structure is not always the best place to resolve conflicts. It is lengthy, costly, highly charged, sometimes without nuance, and can escalate levels of conflict.
Other dispute-resolution mechanisms, for example restorative justice, that endeavor to balance needs of victims, offenders, and communities rather than simply focusing on punitive measures, can be less charged and with more scope for discussion, mediation, resolution, and apology. Criminologist John Braithwaite define restorative justice as:
“A process where all stakeholders affected by an injustice have an opportunity to discuss how they have been affected by the injustice and to decide what should be done to repair the harm. With crime, restorative justice is about the idea that because crime hurts, justice should heal. It follows that conversations with those who have been hurt and with those who have inflicted the harm must be central to the process.”
Approaches that understand crime as an offence against individuals and communities, rather than in the western legal tradition as an offence against the state, can sometimes be better at leading to satisfactory resolutions. Sentencing circles, as are used in some Aboriginal communities, can be effective mechanisms in contributing to such an approach.
Certainly cases of aggravated sexual assault at knifepoint need to be addressed through the criminal justice system. But less severe cases might be better directed through other resolution mechanisms.
Former Crown Prosecutor Sandy Garrasimo has suggested that some cases of sexual assault be steered through the civil law (as opposed to criminal law) channels. In civil law the threshold of proof is significantly lower, i.e., a balance of probabilities rather than beyond reasonable doubt, and the defendant must present a statement of defence. On conviction this doesn’t result in prison sentences but rather fines or perhaps other civil remedies. In some instances this might be the route to contemplate.
I discussed some of these issues with Green Party leader Elizabeth May, a Member of Parliament and former lawyer [See: Exclusive: Elizabeth May on climate change, electoral, political, and monetary reform, sexual assault and much more] who said (in part):
“I would want to see this issue discussed much more broadly with the feminist bar, with groups that actually work in the area of rape and sexual assault counseling, as to what is the best method for making sure that people feel safe to come forward.”
There are many vital issues that confront Canadian society: violence against women, our dreadful treatment of native people, economic inequality, the critical imperative to address climate change; the list goes on and on. Issues that we have for too long tried to sweep under the carpet. Ultimately, the solution is to demand more from our elected officials, and from ourselves. To work to address grievous wrongs like sexual assault while at the same time adhering to the core principles that propel our desire for justice. We all have an opportunity — and a responsibility — to contribute to this process.
I’d like to append a closing note from the internationally renowned jurist, Justice Louise Arbour — a former Supreme Court of Canada justice and former Chief Prosecutor of the International Criminal Tribunals for the former Yugoslavia and Rwanda — who has eloquently and insightfully captured the imperative of finding a pathway to justice without becoming lost in the chasm of vengeance.
“Harm, hurt, hate, guilt, punishment, shame, pardon, redemption and justice are all intertwined in a reality where the line between offender and victim is often blurred. The greatest harm inflicted on a victim is when, infected with hate, she morphs into the mirror image of her abuser. This is how the cycle of violence is perpetuated, often with increased cruelty and madness.
“Fifty years after Nuremberg, international criminal justice was resurrected in an effort to break this cycle of violence and, in the words of the chief Nuremberg prosecutor, to ‘stay the hand of vengeance’. Whether this civilizing project will succeed remains to be seen. In the meantime, we struggle with two larger questions: Where can victims find peace if justice is elusive? Can offenders find closure if punishment is not extended to them?
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