Critics of the criminal justice system believe that it cannot do the heavy lifting required in nuanced sexual assault cases, many of which involve victims and offenders who know each other, “he said, she said” narratives with no other eyewitnesses around, as well as victims’ memories punctured by alcohol-induced blackouts and the deep trauma of their attacks.
They argue that this area of criminal justice needs a drastic overhaul, and that judges, lawyers and police officers need retraining to rid the system of its combative stand toward victims of these violent crimes, not to mention the rape myths that linger in court rooms (Exhibit A: Justice Robin “keep your knees together” Camp).
Increasingly, survivors’ advocates have been pushing for alternatives to criminal justice that might get more victims to come forward and might hold more offenders responsible.
While Canada has seen some heartening legal reforms, including rape-shield laws and the expansion of the definition of sexual assault beyond rape, conviction rates in this country are paltry: It’s estimated that less than 1 per cent of sexual assaults experienced by women lead to a conviction, according to a 2012 analysis of self-reported sexual assault data and court statistics.
Part of the trouble may stem from what happens when sexual assault victims report attacks to police, something they are universally urged to do.
It’s not just a lack of legal advice that’s stopped women from coming forward: It’s that violence can impact all areas of her life.Keetha Mercer, manager of violence-prevention programs at the Canadian Women’s Foundation
A Globe and Mail investigation has found that each year, Canadian law-enforcement officials dismissed more than 5,000 sexual assault allegations as “unfounded,” meaning police decided a crime was not attempted and did not occur.
Police in Canada deemed one of every five rape allegations as baseless, The Globe’s Robyn Doolittle found in a 20-month-long probe. It is a number that is alarmingly higher than the rate at which it is thought sexual assaults are falsely reported – a figure that hovers between just 2 per cent and 8 per cent, according to a raft of international studies.
“Reporting [to police] and the legal route are difficult in terms of outcomes and it’s also very retraumatizing. There’s a definite need for alternatives,” said Keetha Mercer, manager of violence-prevention programs at the Canadian Women’s Foundation. “People don’t disclose very often. If they’re disclosing, it’s important and they trust you. Supporting them, finding whatever resources they want to take back power and control in their life is important.”
Mercer and other advocates believe a fundamental rethink starts with asking people who have been sexually victimized what they actually want. Many want different outcomes under a banner of validation: societal recognition that what happened to them was wrong and shouldn’t happen to anyone else. The Globe spoke with experts about alternative routes for survivors seeking justice outside the criminal justice system.
Free legal advice
Sexual assault victims in Canada are assigned Crown attorneys who represent the state, not them. Many can’t afford legal advice that lays out all the options available to them. The Ontario government attempted to change that last June with a $2.8-million pilot project that offers female, male and transgender victims of sexual assault and harassment up to four hours of free independent legal advice, in Toronto, Ottawa and Thunder Bay. A first in Canada, the services are available in person or by phone at any point after an attack has occurred. While the lawyers won’t represent victims in court, the hope is that the legal advice will help them understand the scrutiny they will face in court and let them make informed decisions about what route is best for them.
“When we’re giving advice, it’s really important to see where the client wants to go with it: What’s her goal?” said Deepa Mattoo, legal director at Toronto’s Barbra Schlifer Commemorative Clinic, an organization that helps women experiencing violence. The clinic is participating in the project and training private-bar lawyers in this sensitive work.
Mattoo gives victims a number of different options other than the criminal justice system. She helps those who have been assaulted on campus file complaints with investigative bodies at educational institutions and assists others with complaints directed at regulated health professional systems, such as physicians’ colleges.
The harm that can be done by the criminal justice system can sometimes deepen the wounds caused by the sexual assault rather than help heal them.Emily Hill, interim legal advocacy director of Aboriginal Legal Services in Toronto
As of Dec. 31, 2016, 120 people (94 female and 26 male) have accessed the pilot program, which will run until March, 2018, and, if successful, may be expanded to other provinces. “One of the things that this program is highlighting is a need for way more than just legal advice,” Mercer said. “Women often spend as much of that time asking about housing and employment needs, childcare and immigration. It’s not just a lack of legal advice that’s stopped women from coming forward: It’s that violence can impact all areas of her life.”
Criminal injuries compensation boardsMattoo is a big advocate of fighting back through criminal injuries compensation boards. Provincially funded, these boards compensate victims of crime financially, not just for what they experienced during their assaults, but also for long-term counselling. “This can help you heal in practical ways, which the criminal justice system unfortunately often doesn’t,” Mattoo said.
She organizes victims’ board hearings, a time-consuming process that involves paperwork and obliges women to tell their stories before a panel. Police officers are occasionally summoned if the victim has filed a complaint with them, but the process is not set up as adversarial. “A formal process of sitting in front of a panel, talking about what happened and then being compensated – how much or how little it is – definitely gives women reprieve. Someone acknowledges what happened was wrong,” Mattoo said, adding, “Narration can be very therapeutic for women who have gone through sexual assault.”
Applications to a compensation board do not preclude sexual assault victims from also launching criminal or civil action, though if a victim is successful in a civil suit, he or she may have to return the compensation received from a board.
Civil justice system
Civil action is another avenue for some victims. Here, courts assess financial damages based on the pain and suffering inflicted by a sexual assault, as well as specific damages, for example, for wages lost when a victim struggling with post-traumatic stress disorder couldn’t work.
Complainants in civil cases don’t necessarily need to file police complaints or have a rape kit done. Unlike in criminal court, the accused cannot remain silent: Both the victim and the accused must take the stand and be cross-examined. The other key difference is that the standard of proof in civil cases is not proof beyond a reasonable doubt, as it is in criminal cases, but proof on the balance of probabilities: What is the most likely scenario? That’s important since many rape cases with no witnesses and big memory lapses do not meet the standard of proof beyond a reasonable doubt – hence the torrent of not-guilty verdicts.
There are downsides to civil justice. Perpetrators don’t get a criminal record, conviction or jail time, though some victims will run a criminal case in tandem with a civil one. The biggest hurdle is the cost: Most survivors can’t afford civil justice. Complainants should be prepared for legal fees tipping the six-figure mark, and expect to see an award in the low-to-mid five-figure range.
An informal resolution method that originated in some indigenous communities, restorative justice brings together the victim, the accused or anyone else who was affected, often alongside a facilitator. Victims may choose to speak about how they felt during the sexual assault, what impact the attack had long term and what outcome they would like to see. Some victims might want an apology and others might gear their questions toward a perpetrator’s motivations. Others still seek assurance that it won’t happen again to someone else.
Perpetrators get to hear first-hand what damage their crimes did to their victims – not just in the moment, but in the days, months and years following. Offenders may have a chance to apologize or take steps to change their behaviour, sometimes through counselling.
What else can you do? My voice was taken away and the only thing that gave me power back was taking control of my situation and letting him go.Tara Muldoon, founder of the Forgiveness Project
“A restorative approach can allow a survivor to express what healing, acknowledgment and recognition might look like for them,” said Emily Hill, interim legal advocacy director of Aboriginal Legal Services in Toronto.
Hill said restorative justice is most often deployed in communities where everyone knows both the victim and the offender, and where the two know each other as well. “The lines between victim and offender that are black and white in the criminal justice system, in the lived reality, people’s lives are often not like that,” Hill said. “Many victims have an ongoing relationship with the offender because of family or community connection. This relationship will continue. The harm that can be done by the criminal justice system can sometimes deepen the wounds caused by the sexual assault rather than help heal them,” she said.
Restorative justice requires that offenders have done some self-reflection. When done right, the payoff can include more meaningful accountability. “Facing a judge who doesn’t know you, who you may never see again, can be less difficult than facing members of your own community who you have harmed and then taking responsibility,” Hill said. “If we think about how we all learn hard lessons in life, being asked to account to those who we have harmed – and to those who we will see every day – is sometimes a place where more learning, rehabilitation and growth happens.”
Solo therapeutic approaches
Six years ago, Tara Muldoon launched a speakers series called the Forgiveness Project so she could deal with the fallout of authorities failing to take her own rape seriously. Muldoon was raped by a friend when she was 18. After filing a police report and doing a rape kit, Muldoon recalls authorities second-guessing whether the rape hadn’t been consensual “rough sex.” Not surprisingly, she didn’t press charges.
Her life quickly spiralled: She quit university and started, in her words, “self-destructing.” A PTSD diagnosis was the turning point. Muldoon launched the Forgiveness Project for people who need absolution for themselves, or for those who have wronged others, or for both. As part of the programming, which has drawn thousands of participants, Muldoon organizes regular peer support meet-ups for sexual assault victims who have experienced similar trauma – women who are tired of blaming themselves.
“I started the project as a survivor of rape knowing that forgiveness was probably the only justice that I would ever have,” Muldoon, now 32, said. Controversially, she has forgiven her rapist in an attempt to move on. “I know that’s such a heated answer, but what else can you do? My voice was taken away and the only thing that gave me power back was taking control of my situation and letting him go.”
Forgiveness, she allows, is not the road for everyone. “I’m not the voice that all survivors want out there but this has allowed me to create some distance,” Muldoon said. “I had no justice in my world.”
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