Playing field in sexual abuse cases must be levelled further

The cover story of this month’s Canadian Lawyer magazine underscores how little has really changed in the criminal justice system in terms of prevailing attitudes against women.

As a civil lawyer who has worked in the sexual abuse area for more than two decades, I can say the problems are not limited to the criminal justice system where the stakes are, admittedly, so high. They pervade the civil justice system as well.

Even where our laws have been changed for the better, stereotypes and preconceptions that put victims in the worst possible light abound and are used regularly to try and discredit their allegations of sexual misconduct and minimize or explain away the resulting harms.

In my experience, it is not only women (including those victimized as children) but also gay and aboriginal male participants in our legal systems who are routinely the targets of outdated — and dare I say, discriminatory — attitudes and assumptions.

So what, in the legal arena, can be done to mitigate these endemic problems without undermining principles we cherish and need to uphold, like the presumption of innocence and the defence’s right to know the case against it?

I have two proposals that I believe would help level the legal playing field in sexual abuse cases.

The first is that self-identified survivors of sexual abuse (male and female) contemplating entering into, or at the front end of, the criminal justice system be offered confidential and privileged, government-funded legal advice about their rights and obligations before they proceed or continue down the criminal road.

This would mean that before the police agree to take their detailed statements, the police would be required to:
(i)    caution would-be complainants that they have the option to receive confidential, free, and timely advice from a lawyer;
(ii)    give out the contact information needed to access this advice; and
(iii)    invite them to return after they have spoken with a lawyer for this purpose.

Of course, this measure would not preclude a person who has just been sexually assaulted from first making a brief report to the police and being taken to the hospital for medical attention and preservation of evidence by undergoing a rape kit.

If the police have already taken a statement without providing this caution, then the police (or victims’ services) should be mandated to proactively extend the offer of legal advice to sexual assault complainants because it is never too late to be informed of one’s legal rights and obligations.

The police and Crown attorneys must be trained to park their distrust of lawyers, and especially those acting for complainants or potential complainants (something I have direct experience with), at the door. While nobody can be forced to seek or take legal advice, doing so should be actively encouraged by our police forces, and the innuendo, paternalism, and body language that is so often used by police to discourage this from happening must end.

Too many times have I seen and had to work with the fallout from clients who were emotionally overwrought and completely unprepared when they gave their police statements.

They had never told their story before — certainly not in the detail required by the police; they had not thought through the sequence of events; the timing; what the perpetrator was wearing; or which hand he used to do what. Indeed, their very coping mechanism was to avoid thinking of such details.

The telling of their story to an authority figure like a police officer who listens, often sympathetically, and takes them seriously, can be hugely cathartic, but at what cost?

Had they understood how their every word or omission would be dissected and used against them in the future, and how the criminal process works, I wonder how many of the already few victims we know report sexual crimes would have participated willingly in the criminal process.

My second, and related proposal, is that legal alternatives to the criminal justice system be promoted and not ignored or given only passing lip service. These alternatives include administrative processes such as those before criminal injuries compensation boards, human rights tribunals, and various professional bodies, as well as civil lawsuits.

While by no means a panacea, and certainly not a feasible option in all situations, where it is available, the civil justice system offers to sexual abuse victims many tangible advantages over its criminal counterpart.

To start with, it is a process over which victims have direct control. They are parties, not mere witnesses as are complainants in criminal court proceedings. This means they are decision-makers. They also have their own lawyers representing their and only their interests.

As well, their perpetrators are compellable, meaning they cannot hide behind the right to remain silent and must answer to the allegations against them by producing relevant documents and submitting to pretrial and trial examinations. In other words, disclosure is a two-way process.

As we all know, the standard of proof is the lower one of a balance of probabilities, instead of proof beyond a reasonable doubt. As well, the application of the laws of evidence, such as for the admission of similar-fact evidence, tends to be less stringent in civil cases.

The civil courts’ reach is also much broader, extending to make accountable not only the direct perpetrators of sexual assault but also their enablers and others responsible at law for creating risky enterprises.

The Ontario government’s soon-to-be introduced pilot project to make available four hours of government-funded independent legal advice to victims of sexual assault is an essential first step in achieving what my experience tells me is needed and long overdue.

I hope it allows for those accessing the program to be triaged in a meaningful manner so they are able to receive the kind of advice they need, bearing in mind that some will be in crisis when they call, and most will need advice not just about the criminal justice system but about all their legal options.

Sexual assault, sexual harassment, sexual misconduct, and sexual abuse — whatever one calls it — is a fundamental and grievous wrong recognized as such in all areas of the law. Those who survive it deserve to know this and to be empowered to make informed choices about which, if any, legal recourse they will pursue.

Elizabeth Grace is a partner with Lerners LLP in Toronto.