Marcy Segal is a Toronto litigator/advocate with primary focus on victims rights.
The Globe and Mail has determined that 1 in 5 cases of sexual assault in Canada are unfounded, or dismissed by police forces. As someone who spent more than a quarter-century as a defence lawyer (and now helps victims of assault and sexual assault), it has been clear to me for some time that the entire system is failing victims and requires an overhaul. The process as it stands now most often breaks down at the very beginning, at the police station. Any damage done here inevitably leads to a bad experience in the courtroom for victims.
A successful prosecution of sexual assault and domestic violence charges requires precision. That means that the victim must be clear, concise and reliable in the telling of the assault. Victims are generally interviewed in the same tiny, cold and impersonal rooms which are designed to heighten the vulnerability of an accused person during questioning. So, a victim's first experience with the justice system is being drilled by a total stranger, even though she is a police officer. Instead of a fireside chat to flush out the incident(s), the victim is, essentially, interrogated. Some police forces have moved to provide a more friendly interview room, but not nearly enough.
Female victims should be questioned by a female officer. Victims often feel ashamed, as if it's their fault for allowing it to happen. Facing a male officer could create a patriarchal setting, which might prevent the victim from being completely accurate and exhaustive in a statement.
We can and must do better, but as it stands now, the system regularly strikes out.
Strike one: Imagine a young, Asian female sitting in a police station interview room with two male officers. Her first language is Mandarin (or Cantonese) and she struggles with English; neither officer ensures an interpreter is present during the interview.
Strike two: The officers are seated on the opposite side of the desk and the questions come in a matter of fact form, without a hint of empathy, understanding, patience or support. I'm not suggesting a group hug. I am suggesting the officers not treat this victim as just another sexual assault allegation, and instead of going through the motions, stop and realize that this is a real person in distress. The officers owe it to her, and all people, to handle the situation with empathy. To this complainant, the officers were blank faces.
The informational component of the interview may have been satisfactory, but only time will tell whether defence counsel will begin to carve her story into several pieces. You see, what you say to police can come back to haunt you. And here's an added bonus: It isn't just what you say, but how it is presented. It's all in the delivery, or how you spin it.
Imagine that defence lawyers are analogous to defensive tackles in football. They lie in wait, at the edge of their seat, ready to pounce or catch the complainant in an inconsistency, or a gap in their statement. Don't misinterpret my comparison as a suggestion that a defence counsel's purpose is shameful or unethical. It is necessary, and the right to cross-examination should rarely be curtailed, provided that the questions are relevant, professional and ethical.
Why should any victim subject herself to rigorous cross-examination when she was not properly prepared at the onset of the investigation? If the initial conversation with police is treated with respect, empathy, transparency and authenticity, then her journey through the criminal justice system would have a better chance of success.
It is not the end result that should fuel the energy of the parties. It is the integrity of the process and a fair trial, win or lose. Whether or not the police believe the story has the ring of truth is not their analysis to make. They are to investigate and charge. Masking their own biases and prejudices by rationalizing instead of charging due to their subjective lack of reasonable grounds is not only unethical but perpetuates the many inappropriate myths surrounding reporting of sexual assaults.
I purposely didn't add a strike three because I am hopeful that tomorrow will bring positive change.