I have been a criminal lawyer for 25 years. Unlike most criminal lawyers, I represent many victims of sexual assault. The Globe and Mail’s desolate picture of a system that fails miserably in responding to sexual assault is the everyday reality for me and my victim clients. Sadly, my most important service is gently setting them up for the disappointment the courts usually deliver. I say this with the greatest respect for the hard working yet dispirited police investigators and Crown Attorneys who prosecute sexual assaults knowing they are going through the motions with little chance of success.
Two key statistics in The Globe article frame the pathetic state of affairs I face every day at work: Ninety per cent of all sexual assaults go unreported; and for the 10 per cent reported, the conviction rate is just one in four. Overall, that is a 97.5 per cent failure rate. Compare that to the guilty plea and/or conviction rate for all other crimes – well above 90 per cent – and we see just how poorly we serve victims of sexual assault. A 2.5 per cent client satisfaction rate is disgraceful. The system is dysfunctional: Denial and rationalization only waste breath; and doing nothing is morally repugnant. So now what?
Timid tinkering with the system will not do. For decades, we’ve tried: Re-defining sex crimes; eliminating misogynistic procedural rules; and increased penalties – all to no avail. The problem is structural, like uneven foundations causing cracks in the walls above. Papering over the cracks is useless. We have to dig to the foundation and reset it, or move out. For many sexual assault cases, I say we move out.
The main causes of victims’ distrust and disillusionment are features of the criminal justice system we dare not change: Adversarialism; and proof beyond a reasonable doubt. By long and deeply ingrained tradition, a criminal trial is neither a tea party nor a group-hug. Aggressive adversarial cross-examination of victims by defence lawyers is a bedrock feature of criminal trials, especially with the stakes so high for accused persons. But for a victim, already terrified to talk about the most intimately degrading experience of her life in the cold sterility of a public courtroom, cross-examination is just painful re-victimization.
Proof beyond a reasonable doubt is likewise a hallowed concept, an essential safeguard against convicting innocent people. But it is such a high standard that a judge must acquit an accused person even if he probably committed the crime. Let’s examine a typical sexual assault measured against the standard of proof beyond a reasonable doubt: Two people known to each other, each otherwise respectable folks, one claiming assault, the other claiming consensual sex. No evidence of collateral violence. A classic he-said, she-said. The victim can be highly believable, but if the accused is even remotely so, the law says a conviction will never happen. So the credible victim, already feeling abused by her assaulter, feels abused again during cross-examination, then feels tossed aside by the judge who has a reasonable doubt. No wonder victims stay away in droves.
Our criminal justice system will never ban aggressive, adversarial cross-examination of victims, or jettison proof beyond a reasonable doubt. So for many sexual assault victims, the system is structurally unable to meet their needs. Where do we turn?
Years of experience teaches me that often what matters most to victims is not the label of a “criminal conviction” for perpetrators – and not a jail sentence. Victims are overwhelmingly insightful and realistic. They seek above all validation for their suffering. And beyond that they want modest redress, and some effort to show the perpetrator how hurtful their behaviour has been. These ends, that best serve victims’ real needs, can often be achieved with a civil law suit, not a criminal prosecution.
The immense advantage of a civil law suit is no proof beyond a reasonable doubt: only the lower standard of “balance of probabilities,” which means proving to just a 51 per cent likelihood the assault occurred. This means credible victims will get the validation they deserve. In a successful civil suit a perpetrator is not a convicted criminal and will never go to jail. But these outcomes typically matter far less to victims than validation and holding perpetrators responsible in court, both of which a civil suit can accomplish.
Sexual assault victims can already sue their perpetrators, so what needs to change? A lot. Victims must now sue privately, which means hiring lawyers themselves. That is a near-complete barrier to justice: For whom amongst the sexually victimized has bags of money and excess emotional energy to throw at a lawsuit? And why should victims be left to their own efforts? Every province has legions of police investigators and Crown Attorneys skilled in the dynamics of sexual assault, ready and eager to serve. The obvious solution is to let Crown Attorneys treat each sex assault case as either a civil suit or a criminal prosecution, or both, depending on circumstances including, most importantly, a victim's wishes. Other jurisdictions let their prosecutors choose a criminal prosecution or a civil suit. We owe it to our own grossly under-served victims to offer the option of a police investigated, Crown Attorney conducted civil suit, especially when the resources to do so are already in place.
For dangerous sexual predators, criminal prosecution and jail remain essential. But in many other cases, victims would be thrilled to see Crown Attorneys bring a civil suit. The reduced standard of proof would increase victim validation. Defence lawyers would quickly recognize this and negotiate civil resolution for their clients. Crown Attorneys and police investigators would no longer be dispirited about doing so much work for so little return. Victim satisfaction, victim participation and public confidence would all rise because the justice system would finally serve victims on their terms: something now so egregiously and shamefully lacking.
David Butt is a criminal lawyer based in Toronto.