Elaine Craig is an associate professor at Schulich School of Law, Dalhousie. Her latest book is Putting Trials on Trial: Sexual Assault and the Failure of the Legal Profession.
The year just ended brought an unprecedented reckoning of sexual misconduct. Allegations of sexual assault and sexual harassment made by four actors against Soulpepper Theatre Company's artistic director, Albert Schultz, can now be added to the wave of revelations.
The allegations against Mr. Schultz, contained in civil lawsuits filed by four women who worked for Soulpepper, are odious: They include non-consensual kissing, fondling, slapping, exposure of his penis and pushing his penis into the buttocks of one of the women. If proved, most of the allegations could well amount not only to workplace sexual harassment, sexual battery and thus cause for civil damages, but also to sexual assault or other criminal offences under the Criminal Code. Yet, there has been no suggestion that any of these women reported their experiences to the police.
Why did these four women choose to pursue a civil lawsuit rather than rely on the criminal justice process? One plausible explanation is the reality that the criminal trial process, if the police even elect to pursue the reports they receive, is a brutal experience for many of those who serve it as sexual assault complainants.
Unfortunately, sexual assault trials continue to traumatize far too many complainants. Indeed, lack of confidence in the criminal justice system remains one of the main reasons women do not report experiences of sexual violation.
A common response to this reality is that the harm to complainants is an unavoidable function of the criminal trial process and its important protections for accused individuals. The argument is typically framed in the following terms: "Making the sexual assault trial process more humane for complainants would threaten the presumption of innocence, and the accused's right to a fair trial."
This is incorrect. It is no doubt true that testifying as a complainant in a sexual assault trial will always be difficult. However, far from unavoidable, some of the harms experienced by complainants are the direct consequence of the legal system's long history of dehumanizing treatment of women.
One example of an unnecessary (and unlawful) harm to sexual assault complainants involves attacking their credibility on the basis of legally rejected, gender-based stereotypes. Canadian law has rejected rape myths such as the notion that women who have been sexually active in the past – or who fail to physically resist sexual contact – or who delay reporting an incident of sexual assault are either lying or are more likely to have consented to the sex at issue. Yet, as research demonstrates, some defence lawyers continue to rely on stereotypes of this nature, some Crown attorneys fail to object when rape myths are raised by the defence and some trial judges are insufficiently educated about, and attuned to the ways in which, discriminatory, gender-based assumptions inform how so many of us think about sex.
While I am only speculating, perhaps incidents in which Mr. Schultz allegedly exposed his penis were not reported for fear that the police would dismiss the behaviour as a sophomoric prank, or silly joke. Perhaps these women have not engaged the criminal justice process, even now after multiple women have come forward with what are in some respects very similar allegations, because of a concern that they would be attacked and disbelieved for not disclosing their experiences earlier.
Regrettably, there is no reason to assume that the harm to complainants that occurs when they are attacked on the basis of rape mythology is unique to the criminal trial process. Reliance on stereotypes about women and sex to attack or decide the truth of a woman's allegation of sexual assault is not a reflection of the unique constitutional protections necessary in a criminal proceeding. It is a reflection of social attitudes about sex, gender and women. Indeed, these are the same discriminatory and sexist attitudes about women that perpetuate the sexually abusive and unlawful treatment of women in the first place.
Unfortunately, what this means for women who file civil lawsuits in response to experiences of sexual violation is that the same stereotypes – and the same failures on the part of the legal profession to eliminate rape mythology from legal processes – may similarly affect the process and outcome of a civil case.
There are important legal differences between criminal and civil trials and there are several reasons why women might choose to pursue a civil lawsuit rather than report allegations of sexual assault to the police. However, doing so in an effort to avoid the devastating effect of having one's credibility attacked on the basis of outdated attitudes about sex, gender and women should probably not be among them.