David Tanovich is a professor at the Faculty of Law, University of Windsor. Elaine Craig is an assistant professor at the Schulich School of Law, Dalhousie University
Sexual assault trials, even when conducted ethically and within the bounds of law, harm complainants. This is the harsh reality of an adversarial and constitutionalized justice system that requires a rigorous testing of the evidence before depriving a person of their liberty.
Throughout the very public trial of Jian Ghomeshi, the term whacking – which refers to tactics that seek to exploit the stereotypes and vulnerabilities inherent in sexual assault cases to secure a favourable outcome – has been prevalent.
Whacking is neither legally nor ethically permitted. Indeed, in a 1999 decision, the Supreme Court specifically held that an accused is not "permitted to 'whack the complainant' through the use of stereotypes regarding victims of sexual assault."
Whacking makes a brutal process for complainants even more inhospitable. It also potentially distorts and impairs the ability of the judge to determine whether the Crown has proven its case.
A prevalent part of the whacking discourse is that it is an historical relic and not a current problem. We disagree.
In our research, we have explored recent reported decisions, trial transcripts, the marketing of sexual assault lawyers on their websites and have interviewed Crown and defence lawyers who handle sexual assault cases. This research reveals that whacking is not just a bad apples issue, as it is sometimes portrayed, but a much bigger problem.
So using recent examples, what do we characterize as whacking?
Whacking occurs when defence lawyers use the availability of a preliminary inquiry for the purpose of persuading a complainant to give up, as one defence lawyer so brazenly advertised on his website by describing a case involving the gang rape of a 14-year-old girl who quit after becoming "so frustrated" by his questions.
It occurs when defence counsel boldly tries to use a 15th-century painting depicting women as "symbolic representations of slander, ignorance, suspicion, fraud and conspiracy" in his closing address as a "memorable tool of persuasion."
It occurs when a young and fragile indigenous woman is cross-examined for days about consent and conspiring to lie in a case that had five eyewitnesses, including four police officers, two of whom had to pull the accused off the complainant.
It occurs when a lawyer "virtually scoffed" and challenged a young complainant, as part of a "vigorous and somewhat brutal" cross-examination, on the fact that she had failed on her repeated attempts to commit suicide, requiring the trial judge to observe that "that reasoning would suggest that if only she had succeeded at killing herself would she be credible."
Whacking includes repeatedly asserting to a complainant that her vaginal area was "moist" after being digitally penetrated because she was "stimulated and enjoying [her]self" or repeatedly questioning a complainant about how long it took for her body to recover enough to have a bowel movement after being anally raped.
It occurs when defence counsel argues that a complainant should not be believed, in part, because she had engaged in a "weekend…of promiscuous activity."
Whacking occurs when a complainant is repeatedly cross-examined on why she did not resist, call 911, immediately flee, or why she waited a few days before going to the hospital.
It occurs when defence counsel brings a prior sexual history application that involves the complainant's entire history of sexual activity with the accused along with videos, texts, and photos including a photo of "semen between her posterior."
These are only a few of the recent examples that we have uncovered, but their breadth and extreme nature are horrifying.
So how does our profession respond?
First, we need better data to study the issue. Some of this could be obtained by a requirement that Crowns fill out a form containing questions about the nature of the defence at the end of every sexual assault trial. Second, our ethics codes need to include an explicit no-whacking provision with a definition and a set of examples. Third, we need greater law-society oversight, including mandatory sexual assault education for criminal lawyers, advising complainants of their right to file a complaint and monitoring of website advertising.
Finally, we need to recognize a larger regulatory role for the trial judge to stop whacking in its tracks.
Some of the brutality of our adversarial process is inevitable. It is intolerable and shameful that our profession permits these unavoidable harms to be compounded by conduct that is neither ethically nor legally permissible.