Jian Ghomeshi’s acquittal of charges relating to sexual assault on March 24 reignited national debate over whether the legal system properly deals with sexual assault convictions.
Out of every 1,000 sexual assaults in Canada, only 33 will be reported to the police and of those, only three will eventually result in a conviction, according to 2012 data from the YWCA. The same report estimated about 460,000 sexual assaults occur in Canada every year.
Advocates for victims of sexual assault and legal experts say getting a conviction is often an uphill battle.
Getting to trial
Whether police will dismiss a complainant for sexual assault often depends on how credible they deem the claims to be, according to Julie Lalonde, a local women’s activist and educator on sexual assault.
“[It] oftentimes comes down to the credibility of the victim and whether or not the police feel like their story checks out,” Lalonde said. “And that of course is very, very subjective.”
Lalonde said a recent Metro News report on Ottawa Police deeming more than 2,500 cases of sexual assault over the past 15 years as unfounded speaks of the issue of credibility perceived by law enforcement.
Once a police report has been made, it’s up to the crown attorney’s discretion to press charges based on whether they believe there is sufficient legal evidence to obtain a conviction and whether they feel it’s in the public’s interest, said Alana Klein, a law professor at McGill University.
“There’s no strict checklist of when is evidence enough,” she said. “It’s the judgement of the prosecutor about whether the evidence is enough that they think they can obtain a conviction.”
Evidence and trial
In most sexual assault cases, there is little or no physical evidence of supposed incidents. Without such evidence, the crown’s case often relies almost entirely on eyewitness testimonies, according to Rebecca Bromwich, a law professor at Carleton University. This means the complainant is almost always the crown’s key witness.
Klein explained the presumption of innocence means the accused do not have to testify or face the same cross-examination the complainant does.
Having to testify as a witness and face a cross-examination is one reason why so few women report, as cross-examination can often be a vigorous process, according to Klein.
In the Ghomeshi trial, the defence team led by prominent defence attorney Marie Henein had intensively scrutinized the accounts of the alleged victims. Henein picked away at any inconsistencies, contradictions, and information not disclosed to police in an attempt to shred their credibility as witnesses.
“I know it felt like they were on trial,” Klein said. “But formally in law, they were witnesses.”
She said many women called to the stand receive little preparation, as it is up to the crown to decide how much time and money they want to devote to readying a witness for their case.
Credibility in the courts
Memory plays a large role in determining a witness’ credibility, according to Bromwich.
“What these complainants in the Ghomeshi case were being asked to recall from 10 years ago was not a realistic level of recall,” she said. “So the inference drawn from the by the judge—which is quite correct legally—is that if they can’t remember this, how can they remember other things?”
As a way to navigate around memory putting credibility into question, Bromwich said crown prosecutors can bring forward an expert witness to speak about the nature of memory.
Lalonde said she thinks this was a major failing of the crown prosecution in the Ghomeshi case.
“You’re talking about women who were physically and sexually assaulted over a decade ago,” she said. “There should have been someone there to refute the defence lawyers’ claims that they were making it up.”
According to Lalonde, a person’s memory could be impeded after a sexual assault. Even in cases where the assault happened more recently, she said the traumatic nature of the event can result in repressing or inconsistent memories.
“People [are] disassociated during an assault—people repress memories,” she said. “There’s a lot of things that happen to your ability to process what happened to you.”
She said calling an expert witness to explain memory could help the crown against challenges to witnesses’ credibility.
Lalonde said in some sexual assault cases, crown prosecutors will recognize the practice of continual partial disclosure, where alleged victims are able to continuously inform their lawyer of details they remembered about their assault, even after they’ve given their initial statement.
However, she said defence lawyers and judges tend to object to it on the basis it could leave room for false reports.
Reforming the system: more witness participation?
Bromwich said a way to reform the legal system without infringing on the presumption of innocence would involve allowing witnesses to have a higher level of participation, similar to a civil court case.
She said once the witness had been cross-examined by defence counsel, her lawyer could ask additional questions to clarify her point of view.
Bromwich said expecting witnesses to sit in the courtroom and submit to cross-examination re-victimizes them.
“There is this indecipherability of women’s stories,” Bromwich said. “The law just can’t hear them. It’s almost like they’re speaking different languages.”
Bromwich said she doesn’t support creating special courts for sexual assault cases, as concerns with determining the credibility of witnesses are important for any proceeding.
“I think the Ghomeshi case really speaks to broad problems with our criminal justice system, and I wouldn’t want to limit it to a particular charge,” she said. “There are issues with how credibility is determined and how memory is understood. These are really big problems in our criminal justice system.”
Klein said she is also reluctant to support special circumstances, such as lowering the standard of proof in sexual assault cases. She said this could affect those who cannot afford counsel and have been traditionally marginalized by the justice system.
Low conviction rates and underreporting
According to Klein, reform over the past 30 years had resulted in Canada having one of the most progressive sexual assault laws in the world.
For example, she said a complainant’s past sexual history with other people may no longer be used to undermine her credibility, nor can a delay in bringing a report of sexual assault forward to the police.
Despite this, Klein said myths around sexual assault—such as women lying in order to gain attention or money—continue today. Due to this, women tend to be perceived as less believable in a court case involving witness testimony, which possibly brings down the conviction rate for sexual assault, she said.
Lalonde said the knowledge of low conviction rates creates a cycle in which less women report sexual assaults. She said acquittals in high-profile cases such as Ghomeshi’s can also deter women from coming forward.
“The chill effect is pretty scary,” Lalonde said. “Women I know who are maybe thinking about reporting certainly aren’t going to now . . . When you see what those women went through, it makes no sense why anyone would willingly put themselves through that.”
