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opinion

David Butt is a Toronto-based criminal lawyer.

In 2014, a big win by the University of Ottawa men’s varsity hockey team was followed by a drunken debauch and charges of sexual assault. The case captured national attention. Last month, a court acquitted the two players charged.

Post-#MeToo, we might be tempted to decry this case as another unfortunate failure of the criminal-justice system. But that would be wrong in two ways. First, the case is actually a success for the criminal-justice system. It is a highly instructive lesson on our collective failure to imagine alternative responses to the nuanced realities of sexually oppressive behaviour.

Criminal prosecution is our bluntest instrument of social policy. It relies heavily on incarceration as a corrective. However, since it would be terrible to incarcerate people indiscriminately, we require proof beyond a reasonable doubt before anyone can be sent to jail. This standard of proof serves the essential purpose of preventing unnecessary incarceration. In the University of Ottawa case – in which two players were accused of sexually assaulting a woman – the evidence did not stack up to proof beyond a reasonable doubt, so within the confines of criminal law, the acquittals were sound. But an acquittal is often a far cry from validating what happened. While acquitting the two players, the judge harshly condemned their behaviour.

And that is where our collective failure of the imagination comes in. Why should bad behaviour be given a pass just because it does not warrant a criminal conviction? Criminal courts applying such a high standard of proof are wisely limiting incarceration, and have to stay that course. But staying that course means criminal courts are also structurally incapable of adequately plumbing the nuances of sexualized abuse of power in social settings. So acquittals are not necessarily, as the judge so insightfully observed, vindication of accused persons as totally blameless. Yet, through our over-reliance on criminal courts as the pre-eminent response to sexual victimization, we seem to have bought in to the fallacy that an acquittal means blamelessness. We have to move beyond that crude binary thinking and acknowledge that sexualized abuse of power occurs along a continuum, all of which deserves addressing, but only some of which lends itself to effective criminal prosecution.

Our justice-based responses to survivors of sexualized abuse of power rely extensively on a cumbersome, expensive and slow criminal-justice response whose default is incarceration, which many survivors do not even want for those who abuse them; that is often insensitive to the needs of survivors, and indeed inflicts further damage on them through the ordeal of cross-examination; and that routinely fails to deliver what most of them seek, which is simple validation.

These problems with our current response to sexualized violence can be readily addressed by adapting mechanisms that already have a track record for fairness. For example, civil litigation requires a lower standard of proof and involves less-serious consequences for perpetrators. But it is economically out of reach for most survivors, so public delivery would enable us to achieve justice in a much broader swath of cases. We could expand access to justice for survivors even further if we also offered an independently mediated option to explore the power dynamics present in the sexual encounter at issue, identify abuses and move forward from there. So the key question is not whether improved service options for survivors can be designed.

Fortunately, change is afoot. Due Justice for All is a three-year project funded by Status of Women Canada that aims to improve the experience of justice for survivors of gendered sexual violence. Three partner agencies are collaborating on this initiative: WomenatthecentrE, the Women’s Legal Education and Action Fund (LEAF) and The Metropolitan Action Committee on Violence Against Women and Children (METRAC). The aim is to design and pilot an alternative that will move our response to sexual violence beyond over-reliance on criminal courts. The project is using an evidence-based approach, informed by research, broad consultation and study of international best practices and existing domestic alternatives to criminal prosecution. Naturally, the architects of the pilot project will have to achieve the right balance between meeting survivors’ needs and building in due process for those reported to have committed acts of sexual violence. That work has yet to be done, but success is readily attainable: because due process imperatives naturally become more flexible as we shift away from a focus on incarceration. Fairness to those said to have done wrong could look very different from how it looks in a criminal court.

The University of Ottawa case teaches an important lesson about the sometimes vast gulf between being not guilty of a crime and behaving well. The Due Justice for All Project holds promise as the right step at the right time toward bridging that gulf.

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