Interview with Robyn Doolittle

The Globe and Mail reporter will be the keynote at the upcoming CBA Leadership Conference for Professional Women in Halifax on October 19. Her latest book, "Had it Coming: What's Fair in the Age of #MeToo?" is an account of the laws governing sexual violence and evolving views of sexual politics, #MeToo, and rape culture. It also follows Doolittle’s “Unfounded” series into how police forces across Canada have mishandled sexual-assault complaints. Here’s an edited transcript of our interview with her.

CBA National: You write in your book about how laws in Canada governing sexual violence are, in fact, quite progressive and have been for some time. So what seems to be the problem with our justice system?

Robyn Doolittle: Yes, as I started researching this, I was surprised to find out that this is not a legislative problem. But as I learned, actually our laws are pretty darn good. You know, we have an affirmative consent standard. We have really strong language from the Supreme Court denouncing rape myths and stereotypes. It’s very clear that a sexual assault complainant doesn’t need to report right away to be believed. There’s no requirement for corroboration. There’s a rape shield provision. There are all these tools that police and Crown prosecutors have at their disposal. So the question is, why aren’t they working? And I think the only logical answer is that you can have all the laws you want, but if people don’t want to apply them, they’re no good. And why would someone not want to apply the law? In instances of sexual assault, the only logical explanation is that people still harbour rape myths and stereotypes. We still have these pervasive ideas, in our society, about how real victims are supposed to act. We still have these ideas about, you know, maybe sex isn’t really so bad ... or rape really isn’t so bad, if you’re someone that’s already had sex before. We have all these outdated ideas, and they’re impacting people’s ability to enforce the laws, maybe without them even really noticing it.

N: But what should we think about a legal system where police and prosecutors and judges are struggling with the very basics of sexual violence laws?

RD: I’m not a lawyer, so it’s always tricky for me to talk about the law. But I think most people are not bad people. If you ask them, “Is rape bad?” they would say “Yes, absolutely, of course!” It’s just that because of their various life experiences, [they] have a different opinion on what constitutes a sexual assault. And so I think that this is just a training issue. Of course, you can train Crowns and police officers, but ultimately, if you don’t have the trier of facts  up to speed, it’s all for naught. And the only tool that we have right now to get judges to go through this training is public pressure.

N: In one chapter you talk about Robin Camp, the Alberta Judge who resigned after the outcry he caused for asking a rape complainant why she couldn’t keep her knees together. He’s now practising in Alberta again, and you spoke with him about his journey through sensitivity training. What did you take away from that?

RD: I was nervous about meeting him, to be honest, because I had formed this very negative opinion in my mind of him. […] But he comes across as a very kind, thoughtful man. I genuinely believe that he is an evolved person now. What I wanted to know was, how do you get a 60-something white guy from South Africa to change his mind? Not to give him a pass, but he is who he is. He was who he was. He was selected to be a judge, and thrown into this with no training. If anything, when reading the transcript, to me it was obvious he’s not speaking with malice, because if he were, he would’ve been smarter about how he phrased everything. He was just coming at it from a place of ignorance. And I do think it’s worth asking the question: Is it really a good thing for the legal system that Robin Camp is no longer hearing cases, but other judges still are without having specialized training?

N: How do you respond to the argument against mandatory training for judges because it interferes with judicial independence?

RD: As an outsider to the legal community and also as someone who is not a constitutional scholar, it all just seems completely nuts to me that you can hear a trial and not have legal training in that discipline. And I think it seems insane to most Canadians.

N: The science had been clear for some time that trauma can alter a person’s behaviour. How should the justice system be relying on that science?

RD: As I write in the book, I think the real value of the trauma-informed approach is for the police. I’m parroting the language here, of [clinical psychologist] Laurie Haskell, who I interviewed for the book. But so many cases don’t make it by that first police interview because the complainant isn’t presenting well. I think a lot of police officers don’t know what to make of it when a victim can’t tell a coherent story, or they’re struggling to remember certain details, or they’re talking about being frozen, that they didn’t call out, or they didn’t report right away. And maybe they don’t think the person’s lying, but there’s just such a resource crunch with police officers also, and there are such huge caseloads. And if it’s messy and they don’t think it’s going to get a conviction anyway, they just move on from those cases and they’re not thoroughly investigated. And so if they had a better understanding of trauma and the way that trauma can impact certain behaviour, and the victim’s ability to recount an event, after the fact, they might do a better job of the investigation, which would then give the Crown more to work with at trial.

N: Why is it so difficult for people to understand the rules of consent?

RD: I spent a lot of time, in the book, dealing with consent because it’s just too central to everything here. And part of it is we are so fixated on consent as a legal issue, rather than an ethical one, and it’s setting us up for failure. I wrote about how I went to this consent training with university students that focused on pleasure. When framing consent, it’s not like the bar should be be, “don’t get arrested.” It should be, you know, “be a good sexual partner, and give pleasure to your partner.” The outcome will be the same: you’ll have consent. You’re just thinking of it in a different way.

N: And you conclude by saying that “The fix we’re seeking won’t come from the criminal justice system.”

RD: People, unfortunately, look to the criminal justice system to fix all of these issues. Well, most of the behaviour that I’m seeing is not criminal in nature. Maybe it’s got civil ramifications, but it’s not a criminal act. We need to just pull away from thinking that the courts are going to fix everything. And so how do you do that? We obviously need better sex ed training. I think that that’s pretty obvious. We need to be more realistic in the messaging that we’re having. I have attended university consent training put on by students, where they say consent has to be sober and enthusiastic. And, of course, neither of those things are true or realistic. Tell a bunch of 18-year-olds at university frosh that they can never have sex when they’ve been drinking and you might as well be preaching abstinence to them. The bottom line is that we’re talking about consent all wrong. And we need to overhaul about how we talk and think about so many of these issues associated with #MeToo. It’s going to be a slow process to recalibrate all of our brains, but if we don’t start that process, we’re never going to evolve.

N: Now I understand we can’t overly rely on the criminal justice system, but what’s your overall assessment of how it is responding to reports from your "Unfounded" series on the handling of sexual assault cases?

RD: My sense is that there’s been progress on the law enforcement side, but it’s not great. In terms of what’s happening in the courtroom, Ontario’s doing some really great things with Crown training, but I do encounter a lot of Crowns who also aren’t exhibiting the best behaviour or understanding of either the law or how they might mount a case. I also think a lot of cases get dismissed because people are trying to anticipate what the next level in the system is going to do. So the police are thinking the Crown’s never going to get this to court, or a Crown is thinking a judge is never going to convict. For me, with the “Unfounded” series, and with my book, I’ve been trying to make the case this is not about necessarily sending more people to jail. It’s about how everybody needs to do their job.