Elaine Craig is an associate professor at the Schulich School of Law at Dalhousie University. Her latest book is Putting Trials on Trial: Sexual Assault and the Failure of the Legal Profession.
During a sexual assault trial last week, a courtroom of people, including a 22-year-old complainant and her alleged sexual assaulter, watched graphic videos of the alleged attack. The videos were taken, she says, without her knowledge, by the accused, 35-year-old Matthew Percy. Mr. Percy, who was the groundskeeper at St. Mary’s University where the complainant was a student, is accused of forcing the complainant to perform oral sex, choking her, forcing her to engage in sexual intercourse and videotaping these acts without her knowledge. In addition to these charges, he has been charged with sexually assaulting two other women.
Imagine being required to watch a graphic video of yourself engaged in sexual activity, any sexual activity, in front of legal professionals, reporters and strangers. Imagine that for this woman, that video may capture a brutal sexual assault against her. It is difficult to conceive of a more obvious and profound example of the traumatization that can occur as a result of testifying as a sexual assault complainant.
At points Matthew Percy reportedly stared directly at the complainant as she, sobbing and shaking, was required to repeatedly watch the videos of him allegedly raping her. Members of the public, including some of the accused’s family, were in the courtroom. The media watched and then reported on the details of what was depicted in these deeply personal, highly graphic videotapes, as well as on how the complainant reacted to viewing them. Parts of the videos were played three times.
In a criminal trial, the Crown has to introduce its best evidence. The Nova Scotia prosecutor in this case could not have avoided having the complainant view and be questioned on these videotapes.
But did the process unfold in the most compassionate way possible? Was every available step taken to make what was a brutal and traumatizing experience as humane as possible?
The answer may be no.
The Criminal Code of Canada includes some modest measures aimed at making the experience of testifying as a sexual assault complainant less harmful. Those measures include allowing complainants to testify in a separate room or with a support person beside them or from behind a screen. These testimonial aids are made available to sexual assault complainants if the Crown asks for them and the trial judge agrees to order them.
Was this young woman given the option to testify behind a screen so that the accused couldn’t watch her watching these videos?
Was she given the opportunity to testify using closed circuit television, so that she did not have to be in the same room with her alleged attacker and his family members as videos of the alleged sexual assault were played over and over again?
It may be that the complainant was offered these measures and declined them. I don’t know.
Another important question: Why were there reporters and other members of the public in the courtroom watching these videos and watching the complainant watch them? Why wasn’t the courtroom cleared before they were played?
Tellingly, before the videos were shown some of the complainant’s supporters exited the courtroom – presumably in an effort to help her preserve her sense of dignity. The complainant testified that watching the videos made her feel “violated,” “disgusted” and “embarrassed.”
Imagine compounding the humiliation and trauma of that experience with the knowledge that others were watching what may have been the most horrific moment of your life, and that they would be watching for your reaction.
To preserve the transparency of the legal system, we only exclude the public from a criminal trial in exceptional circumstances. These were exceptional circumstances. This is likely not the first case in Canada in which a sexual assault complainant has had to watch and be questioned on a video of the alleged assault in court, but such cases are rare.
In my research I have not encountered another case in which a complainant has been required to watch graphic, sexually explicit videos of herself being allegedly sexually assaulted.
An exclusion order should have been made. Even if the Crown failed to ask that media and members of the public be made to leave the courtroom while these videos were played, the trial judge should have made this order of his own accord. He had the authority to do so.
This 22-year-old-woman was asked to do something that no one should ever have to do but that, from a legal perspective, was necessary in this case. If she suffered this profound imposition on her dignity and humanity without being afforded the modest protections in place to minimize the harmfulness of such an experience, then this case represents yet another severe failure of our legal system.