- Putting Trials on Trial: Sexual Assault and the Failure of the Legal Profession
- Elaine Craig
- McGill-Queen’s University Press
When Elaine Craig sent the final draft of her new book to her publisher, she didn't know that by the time it would appear in print, its subject would be gaining traction, not unlike a tsunami, becoming more germane and urgent on a near-hourly basis.
Putting Trials on Trial: Sexual Assault and the Failure of the Legal Profession – a rigorous and damning indictment of the justice and legal systems' handling of sexual-assault cases in Canada – was finished before the #MeToo and #TimesUp movements seized national headlines. But it is arguably now more relevant than ever.
The book spares no one as it seeks to answer the questions: Why, if this country's rape shield laws are held up as among the most robust in the world, are reporting and conviction rates so dismal? And why do complainants share the same devastating evaluation – that going through the legal system can be as traumatizing as the sexual assault itself?
It isn't difficult to grasp the answers after reading Craig's meticulously gathered study, featuring excerpts from trials and some of the country's most prominent legal minds. On the other side of the courtroom are some of the most vulnerable of victims. The read is, in a word, brutal.
The Globe and Mail's mammoth "Unfounded" investigation proves that women are unlikely to report cases of being raped or sexually assaulted, and more disturbingly, that among the statistically negligible few who do, there is a one in five chance of it being dismissed before the investigation even reaches a courtroom.
Craig, an associate professor at Dalhousie University's Schulich School of Law, sought to examine exactly how the (sometimes unlawful) behaviour of the Crown, defence and judge makes the process unnecessarily punitive and harmful for complainants.
Quoting transcripts from trials dating no further back than 2009 to ensure relevance, the most shocking insults to dignity, not surprisingly, take place during cross-examination.
For example, a defence lawyer asked a 19 year old, who was raped (at age 16) in a bathroom stall at a bar by a celebrated local hockey player, if her behaviour, caused by her alcohol intake, was to blame. Her friend discovered her vomiting in the stall, her pants bloodstained, and it was later shown in evidence that the teenager had suffered injuries to her vagina as a result of the attack.
But the heart of Craig's study is found in legal detail, demonstrated in her nuanced interpretation of what follows in this case:
During cross-examination, the defence lawyer begins to question the complainant about the "thinnest, smoothest, tightest of leggings" and the high heels she wore on the night of the attack, and goes on to describe the way in which she was dancing with another young man in the bar that night, even going so far as to suggest she could feel his "anatomy" as she danced with him, before the rape.
The defence is now in murky territory – because if he wishes to raise the complainant's previous sexual activity, he must apply to do so under section 276 of the Criminal Code, imposed by the Supreme Court of Canada to protect complainants from being unfairly judged based on previous sexual experiences, while simultaneously allowing potentially relevant information to be introduced.
Craig's writing allows us to observe – through transcript – as the judge warns the defence that if he continues in this line of questioning he'll be in violation of section 276. The defence lawyer goes on to explain that he is simply trying to establish the complainant's claims of intoxication. Would she be able to dance in the way previously described if she were that drunk? The judge allows him to proceed.
In cases such as these, Craig considers the responsibilities of all legal actors present: the defence for proceeding possibly unlawfully in this line of questioning, the Crown prosecutor for failing to object and the judge for allowing the questioning to continue.
As in all attempts to study systemic failure, the researcher must examine more than just data to understand what lies at the foundation of the problem. In this vein, Craig cleverly elected to offer anonymity to the lawyers she interviewed, to ensure that they would have no reason to hide their truthful opinions. One such belief, reflected among defence lawyers interviewed and articulated by one, is that "trial lawyers are frustrated with sex-assault cases" because of an "overcorrection" that "makes it very difficult to get someone acquitted … it's almost as if the burden of proof gets reversed and there's a presumption of guilt."
Craig shuts down these assertions with surgical precision, drawing her evidence from trials, appeals, legal research and even, gallingly, from the websites of defence lawyers who purport to promise favourable results, even bragging about "no convictions" in cases involving established sexual predators.
Perhaps the most heartbreaking story that emerges is this: The complainant is so traumatized by the end of her first day on the stand, she simply doesn't show up for the second day. The witness is then arrested and forced to return to testify, where she must endure demeaning repetitive questioning. The cases like these that Craig studied all involved Indigenous women.
Perhaps the most pressing question our society must now contend with in this post-Ghomeshi, post-Weinstein climate, is "what now?"
For actors in and outside the legal profession, there is no shortage of answers in Craig's excoriating study. This book will undoubtedly generate controversy as it delivers a verdict upon the Canadian legal system: guilty.
Maggie Rahr is a freelance journalist in Halifax.