If you are unfamiliar with #MeToo and the litany of sexual assault stories coming from women, non-binary and trans folks, then you have been living under a rock. Since October, countless individuals across the spectrum of professions have bravely told their stories of being sexually assaulted, harassed and raped by men. During that week in October, when my client cried testifying about her depression caused by years of living with an abusive husband, and when I cried giving closing submissions to the tribunal in her case and when her case was later denied, I knew I would write this article. Although my client’s case was not a sexual assault case, it reignited the fire within me to take a closer look at why women who take their stories of sexual assault as far as trial are unsuccessful in their claims.
As a woman, I have never had the privilege of going through the world thinking that law was what it claims to be: objective, fair, applicable to everyone equally, the only process by which truth can be discovered or justice served. Girls learn early where in their communities not to go and when not to go there, who not to go there with and what not to wear when going anywhere at all. Boys do not learn about consent or to not (sexually) assault girls, trans folks and non-binary folks. But the sexual assault cases that have come through the Ontario courts recently have considerably magnified the law’s inability to deal with sexual assault complaints from a woman/non-binary/trans person’s perspective. Which, it bears mention, are not the perspectives preferred in law.
Of course, the two cases with which most Ontarians are familiar are the cases of the three women who accused Jian Ghomeshi of some disgusting violent acts, and the case of the unnamed Toronto parking enforcement officer who stated that she was raped by three Toronto police officers in a hotel room. In both cases, the accused men were found not guilty.
But who really believes that they are innocent? Really?
We know that sexual assault and harassment are omnipresent. These incidents happen at a rate far exceeding what we previously thought was the case. Official numbers be damned, nearly every single woman, trans and non-binary person I know typed those six characters (#MeToo) into their Facebook status at some point that week. And the people I know are, for the most part, white, able-bodied and educated. Black, Indigenous and other women as well as trans folks of colour, disabled women and trans folks, and poor women and trans folks experience violence at higher rates.
We know that incidents of sexual assault are under-reported to the police. We know that of the incidents reported to the police, between 20 and 30 per cent are dismissed by authorities as unfounded (ie – investigations do not lead to charges against the accused). We know that only a small percentage of reported and investigated incidents of sexual assault are brought to trial. And of those brought to trial, we know that only half end in convictions.
In reading the judgments in the Ghomeshi and Toronto police officer cases, it is crystal clear that the reason for the not-guilty verdicts is because the judges did not believe the women. In sexual assault cases, there is rarely corroborating evidence to support the survivor’s story, so trials become situations of “he said/she said.” And when what “she said” isn’t a perfect retelling of the events in a way that makes perfect sense within a judge’s view of what is possible in the world, the accused gets away with it and walks free. Other survivors are less likely to report their cases to the police.
In a world where what women say is not believed at the best of times, and is rarely believed in cases of sexual assault, it seems clear to me that there ought to be different standards of proof when courts are asked to rule on sexual assault cases. The traditional standard of proof in criminal law cases is proof beyond a reasonable doubt. If the judge or jury is left with a reasonable doubt, the Crown has not done its job and the accused is found not-guilty.
So, if we are starting from a point in our society where survivors are generally not believed but we know that men commit sexual assault at staggering rates, should the legal system not do something to re-weigh the balance? Some steps have been taken to this end. The Criminal Code contains rape shield provisions to prevent an accused person from leading evidence to support an inference that the survivor was more likely to have consented to the sexual activity at issue, or that the survivor is less worthy of belief (ie – the twin myths). Amendments have been proposed to clarify that an unconscious person is incapable of consenting (the fact that this point needs to be clarified in legislation is both horrifying and telling of where we are at). But these steps are not enough to ensure fair trials.
Courts are not prepared to just believe survivors. Justice Anne Molloy wrote in her judgment in the Toronto Police officer case, “Although the slogan ‘Believe the victim’ has become popularized of late, it has no place in a criminal trial.” I’m not advocating for blind adherence to a survivor’s story. But we do have to find a way to believe survivors more often, and for their stories to carry more weight in Court. Frankly, if someone has gone to the police with their story, the police have investigated, an accused has been arrested and charged, and the case has made its way into Court, the case has already made it farther than 80 per cent of its counterparts. Can the court not draw positive inferences from its progression through the legal system, knowing that only 21 per cent of reported cases of sexual assault make it to the trial phase?
Fortunately, experienced and respected organizations are looking at ways to improve the legal system as it pertains to sexual assault cases. Around the same time Justice Molloy’s decision was issued in August, the Women’s Legal Education and Action Fund (LEAF) confirmed that they, along with other groups, are looking at models outside of the criminal law to deal with sexual assault complaints.
Others are working within the legal system but in innovative ways to advance their sexual assault claims. A group on women from London, ON, recently retained the highly respected constitutional lawyer Joe Arvay, Q.C. to represent them in a class action case against the London Police Service for failing to investigate their sexual assault claims in a manner consistent with the Charter.
We are at a point as a society where we cannot continue to allow women, trans folks and non-binary folks to experience sexual assault and harassment while perpetrators face little to no consequence. It flies in the face of the Charter values we all hold dear. We need to take this seriously. We need to believe survivors and we need a legal system that will believe survivors. Otherwise, we continue to teach boys and men that their actions are acceptable, and we continue to tell women, trans and non-binary folks that they cannot expect the legal system to protect them.
Rachael Lake is a staff lawyer with Waterloo Region Community Legal Services, practising in the areas of Disability and Employment Insurance Law. Reasonable Doubt appears on Mondays.
A word of caution: You should not act or rely on the information provided in this column. It is not legal advice. To ensure your interests are protected, retain or formally seek advice from a lawyer. The views expressed in this article do not necessarily reflect those of Waterloo Region Community Legal Services.
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