Sexual assault trials: A failure of the legal profession?

By Ann Macaulay March 12, 201812 March 2018

Sexual assault trials: A failure of the legal profession?


The way sexual assault cases are practised and adjudicated by defence lawyers, prosecutors and judges regularly imposes unnecessary harms upon complainants, according to Dalhousie University law professor Elaine Craig. Players in each of these roles should play a part to prevent these harms and all have a duty to “uphold the law and those legal reforms that we have in place to protect complainants and the duty to intervene to prevent arguably unnecessarily aggressive, discriminatory or abusive cross-examinations,” she said.

Conclusions from Craig’s recent book, Putting Trials on Trial: Sexual Assault and the Failure of the Legal Profession, were central to the discussion of ethical challenges by a panel moderated by University of Calgary law professor Alice Woolley at a March CBA-FLSC Ethics Forum in Toronto.

Craig’s book examines ways the criminal trial process can be made less traumatic for sexual assault complainants without threatening or eroding the rights of the accused. She found that some criminal defenders ask improper questions, including prior sexual history. They “sometimes exploit rape myths that have been categorically rejected at law and sometimes unnecessarily harass and intimidate complainants in an effort to discourage them from continuing to willingly participate in the process.” These strategies are inconsistent with the law, she said, and judges have an ethical obligation “to make courtrooms as humane as possible under the circumstances,” including not forcing a complainant to testify while standing.

As speaker Teresa Donnelly pointed out, “statistics show that one in three women will be sexually violated in her lifetime and that 90 per cent don’t report their victimization to the police.” Donnelly, a West Region Sexual Violence Crown in the Ministry of the Attorney General in Toronto, said victims often don’t report an assault because of how they will be treated in the criminal justice system. Since women are disproportionately victims of sexual violence, “we have an issue where women are being sexually assaulted in large majority by men and these are not being reported.”

That brings up the issue of equality, said Donnelly, and “a violation of access to justice, which is seen as a fundamental right and an obligation that we as barristers in Ontario swear to uphold the law and access to justice.” The harm that comes from improper, unethical or illegal cross-examinations “perpetrates a harm directly on the victim in an individual case but it also perpetrates a harm much more broadly on the criminal justice system and on the rights of women to equality.”

Jonathan Dawe, criminal defence counsel at Dawe & Dineen in Toronto, pointed out that defence lawyers have an “obligation to make every effort within the constraints that the law imposes to try and raise a reasonable doubt for their client, to present their client’s position fully and fairly and to assert any other legal rule or right that might benefit the client.”

The unavoidable bottom line in many sexual assault cases is that the defence needs to assert directly or indirectly that the complainant is not being truthful, said Dawe, “and there’s really no way to sugar coat that. No doubt it must be extraordinarily difficult and psychologically harmful for someone who is being truthful to be confronted in a public forum and accused of lying.” But that is “an unavoidable harm, given what’s at stake for the defendant.”

Craig agreed that defence lawyers must challenge complainants’ credibility, but “the harder questions are is it ethical, is it their duty, let alone is it ethical to ask distasteful questions that are knowingly motivated by discriminatory assumptions about women and sex and gender? So is it ethical to ask questions such as you didn’t resist, you didn’t call anyone, you could have picked up the phone, you could have got out of the room, there was someone right next door, you didn’t scream, you didn’t tell someone as soon as you left, you waited until you got home?”

Woolley turned the discussion to the duties of prosecutors to prepare complainants for trial, an issue that was raised during the Ghomeshi trial. The Crown should prepare witnesses to testify, said Donnelly, who is a member of the sexual violence advisory group providing policy, direction and best practices to Crowns. Otherwise a victim could be talking about “the most traumatic, embarrassing and for her humiliating event of her life,” Donnelly said. “The first time we’re ever going to talk about that or acknowledge that that happened to her is going to be in a public courtroom with people that she doesn’t know? That’s not fair and it’s not right.”

Ann Macaulay is a frequent contributor based in Toronto.

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