Let me tell you a story about sexual assault – one that has a sort-of happy ending.
Once upon a time, there was a revered public broadcaster who was exposed by the media as a violent sex offender. The news story, which rocked the country to its core, exposed the years-long sexual misconduct of this “national treasure” and painted a portrait of a man who had abused his fame and charisma in order to exploit many of the young and vulnerable people who admired him.
A national conversation began that would change the culture around sexual violence forever.
Police launched a widespread investigation and called for victims to come forward. And forward they came, first in the dozens and later in their hundreds. Allegations of abuse were made, not just against the famous broadcaster but against other men like him, some famous and powerful, others not. In the end, 13 men were arrested and six were convicted and sent to prison.
The story culminated in a national upheaval and reform of the criminal justice system and the way the Crown Prosecution Service handles sexual-assault cases. The number of complaints shot up and a wave of convictions followed suit. Critics declared the whole thing a witch hunt, while proponents saw it as a great cultural catharsis. Previously unreported incidences of sexual exploitation and violence against women and children were exposed and successfully prosecuted from coast to coast to coast. The country did not live happily ever after, but it would never be the same again.
Oh Canada. As you may have guessed, this is not our story.
It’s the story of Jimmy Savile, the notorious BBC TV host and children’s hospital patron who sexually exploited women and children throughout his venerated career. The ensuing Operation Yewtree was a full-scale criminal investigation into sexual abuse, predominantly of women and children, that has been led by London’s Metropolitan Police Service since October, 2012.
The continuing reverberations of Yewtree are unprecedented in Britain and utterly profound. Yewtree has resulted in several high-profile government inquiries and the media’s subsequent unearthing of the Rotherham sex-abuse scandal, in which rings of adult men – mostly of Pakistani origin – are believed to have trafficked and systematically abused more than 1,400 girls over a period of 16 years. That investigation, in which roughly 300 suspects have been identified, will go on for many years to come.
We in Canada can learn much at this particular impasse.
Over the past two weeks, it’s become very clear that the trial of Jian Ghomeshi is not going to be Canada’s Yewtree moment. The great cultural catharsis that many had hoped for will have to wait.
Ghomeshi, unlike Savile, is alive, affluent and, as such, receiving the best criminal defence that money can buy. His alleged victims, unlike Savile’s, are being made to run the gauntlet of our criminal court system. The spectacle of the complainants’ treatment in court, whatever you make of it, will only dissuade others from coming forward in future.
There is a great deal wrong with the way we try sex crimes in this country. The results can be seen in our low conviction rate, which according to Statscan figures stands at below 45 per cent. In Britain, by contrast, the conviction rate of sexual-assault cases prosecuted is close to 60 per cent. According to a friend who is a busy criminal barrister in Manchester, in the aftermath of Yewtree and Rotherham, “Rape has become the bread and butter of the Crown Prosecution Service. Basically if someone complains, we prosecute,” she said.
The British court has significantly changed the way it deals with sexual-abuse trials. Most complainants are now interviewed and videotaped by police at home and not required to retell their story live in court. Complainants are then cross-examined via video link in a separate room from the defendant to avoid potential intimidation.
Defence counsel are required to make a special motion in advance if they want to bring up the complainant’s sexual history or conduct unconnected to the alleged incident. They must also, in most cases, submit their questions for cross-examination in advance, to be approved by a judge before trial. Neither are defendants given a choice to be tried by judge or jury. Virtually all serious crimes are tried by jury in Britain.
In the aftermath of the Jimmy Savile scandal and Operation Yewtree, it simply isn’t possible for defence lawyers in Britain to ambush and “whack” complainants in sexual-assault cases the way they once did (and the way, as some say, they are still perfectly entitled to in Canada). In Canada, by contrast, we still have a system that continues to fail the very victims of sexual assault it was designed to protect.
Jian Ghomeshi is not our Jimmy Savile, but that doesn’t mean our system can’t be improved. As we have seen in Britain, social progress on sexual assault is possible if there is a public and political will behind it. Canada desperately needs its own watershed moment, but, sadly, this trial isn’t it.Report Typo/Error