Courts must take a survivor-centric approach to sexual assault

In 2016, Brock Turner was convicted of three charges of felony sexual assault against Chanel Miller at Stanford University. People following the case were appalled when Turner was sentenced to six months in prison, followed by three years of probation. In the aftermath, thousands of complaints were lodged that the sentencing judge displayed bias and failed to take sexual assault of women seriously. The event had an impact on me – at the time I was an undergraduate at Brescia University College, Canada's only women's university. It was clear to me we had to do a better job in supporting sexual assault survivors.

Sexual assault training became mandatory for newly appointed judges after Bill C-3 became law in May 2021. Training seeks to address the social context surrounding sexual assault including racism and discrimination while also requiring judges to record their reasoning for decisions in sexual assault cases. Some people questioned whether Bill C-3 compromised judicial independence while others found it unnecessary because current training, provided by federal judicial institutions, already existed. Others voiced concerns that Bill C-3 was merely performative.

Ultimately, Bill C-3 may ensure that judges are aware of the stereotypes or myths, but it fails to address the barbaric and harmful process that makes the judiciary inaccessible to many.

Our courts continue to fail the few victims of sexual assault that come forward. A trial picks apart a survivor's clothing, relationship status, alcohol consumption, and sexual history. Furthermore, judges continue to rely on stereotypes in determining whether a survivor's story is believable. In April 2021, the Ontario Court of Appeal (ONCA) agreed in R v Steele that the trial judge applied rape stereotypes to determine the survivor's credibility. He found the survivor's conversation with her father after the assault to be inconsistent with someone that had been sexually assaulted. He also noted that the survivor liked her assaulter because she offered to walk him home before the assault. Therefore, in his view, there was no assault.

Though acknowledging the trial judge's error was the right call, it also creates the impression that the court system solved the problem. Yet, the response is reactive to damage that cannot be undone. The court failed to address the systemic nature of sexual assault. If judges don't believe a survivor when their life has been publicly picked apart for years, it should come as no surprise that so many survivors choose to remain silent.

The courts need a survivor-centric approach that conceptualizes how judges persecute survivors based on systems of oppression such as racism, classism, colonialism, ableism, and sexism. It begins with educating judges regularly on the realities of sexual assault. Current judicial training does not include mandatory sexual assault education, except for newly appointed judges or candidates seeking a superior provincial court appointment.

Yet, judges at provincial levels without training will hear sexual assault cases. Why not extend it to all judges? Education should debunk myths, review past cases for improvements, and study the heightened vulnerability of minority groups, including immigrants, people with disabilities, BIPOC and LGBTQ members.

Further, education needs to include a diverse selection of testimonies from survivors. This would help judges understand that there are additional barriers for minority groups. For example, negative constructions of black women as "deviant," Indigenous women as "uncivilized," and Asian women as "submissive" illustrate the connection between sexuality and colonialism. The instability of interconnecting identities means that judges should treat each case as unique. Rather than obscuring survivors' experiences, judges must engage in a continuous and transformational education to eradicate assumptions of sexual assault in practice. 

At the same time, education must not be performative. We need competent judges to avoid dragging sexual assault trials out longer than necessary. In pursuing this goal, there needs to be judicial diversity, so that institutionally our courts will have a better understanding of the added challenges faced by marginalized survivors. The amount of training a judge receives may not be indicative of their ability to ensure that a survivor is heard, believed, or understood.

Finally, a survivor-centric approach considers what a survivor wishes to accomplish at trial. Assuming that all survivors want their assaulters behind bars is essentialist. As well, it is important to see that sexual assault carries both a physical and emotional toll. The impact goes beyond the survivor – it extends to family, friends, and even their community. The survivor also needs to be acknowledged and empowered by recognizing the assault and recognizing that the assault will always be part of their identity.

An identity-neutral approach to sexual assault cases is unacceptable and unsatisfying. Although courts and judges have an obligation to remain unbiased, the focus should be on equity, not equality. That requires judges to consider the intersecting identities of marginalized survivors and transition to a survivor-centric approach with a more complete understanding of sexual assault. More diversity on the bench will help by giving marginalized judges decisional power.

Educating judges should be inclusive, purposeful, and mandatory for all. To avoid creating further harm to survivors, courts must learn what it is to listen to sexual assault survivors.