Canada: A Fighting Chance: The Importance Of Victim Advocacy In Sexual Assault Cases

The recent verdict in the Jian Ghomeshi trial has sparked a growing public debate around how Canada's justice system deals with sexual assault. On March 24, 2016, Ghomeshi was acquitted by the Ontario Court of Justice on four counts of sexual assault and one count of choking. In his ruling, Justice William Horkins found that there were serious issues of credibility in the evidence given by the 3 complainants, and he held that the prosecution had failed to prove beyond a reasonable doubt that any of the 3 women had in fact been sexually assaulted. While many in the legal community concede that the decision was legally sound, the verdict has nonetheless highlighted the need for legal reform to address a plethora of difficulties faced by victims of sexual assault, both at the initial complaints stage and at trial.

Recent research into sexual violence indicates that there are 460,000 sexual assaults each year in Canada alone. Yet, for every 1000 sexual assaults, only 33 are ever reported to the police, only 12 of those reported incidents result in criminal charges being laid and only 3 of those charges ever result in a conviction. These staggering statistics are due in part to the inherent difficulties in proving sexual assault in a criminal trial. Under the Criminal Code, "sexual assault" covers a very broad spectrum of activity that ranges from uninvited sexual touching to rape. However, despite the broad scope of offences under the penumbra of sexual assault, the key to substantiating sexual assault turns on the "uninvited" or "unwanted" nature of the sexual activity. In other words, a determination of consent, or lack thereof, is the paramount consideration in any sexual assault case, and it must be found beyond a reasonable doubt in order to convict the accused. The focus on consent separates sexual assault from any other assault case. There is no onus in a non-sexual assault case to prove, for example, that the victim did not consent to being stabbed or punched in the face; nor is there any consideration of consent in determining culpability of the accused. On its own, physical evidence of bodily injury may be used to prove that an assault has been committed and to support a conviction, as being stabbed or punched in the face is persuasive evidence that an assault has been committed. However, in sexual assault cases, physical evidence of sexual intercourse in and of itself will not support a finding of assault unless there is also evidence that the intercourse was "uninvited", or non-consensual. This is particularly challenging in those sexual assault cases in which there is no physical evidence to prove a lack of consent and the matter turns solely on the credibility of the complainant.

Further, and integral to the presumption of innocence in criminal cases, is the right of the accused not to take the stand or give evidence. In the Ghomeshi trial, Justice Horkins noted that Ghomeshi did not testify or call any evidence in defence of the allegations made against him. Justice Horkins confirmed that the right of the accused to remain silent, call no evidence and seek an acquittal on the basis that the Crown's case fails to establish his guilt beyond a reasonable doubt remains "one of the most important organizing principles in our criminal law."  Consequently, the complainant in a sexual assault case may be the only witness called to give evidence of the alleged assault. In such cases, the burden of proof rests predominantly on the evidence given by the complainant respecting the assault and lack of consent, as well as on his or her character, credibility and overall demeanor.  Assessing consent in conjunction with credibility can be extremely difficult, as consent in the sexual context is a complex, subjective and fluid concept which is often entrenched in stereotypes, myths and expectations about the victim. Research indicates that victims of sexual assault often fear not being believed and are hesitant to report sexual crimes out of shame, embarrassment or a belief that they somehow "asked for it". Moreover, not all police officers are equally aware of the nuances in the way complainants may respond to experiencing a sexual assault, and this may negatively impact the complainant's perceived credibility from the outset.

Taken all together, the criminal process creates an atmosphere that is daunting, isolating and overwhelming for survivors of sexual assault, whose experiences and perspective often become subsumed in the greater system. Many survivors of sexual assault who have gone through the criminal justice system have reported feeling ousted from the process and unprepared to give evidence at trial or face cross-examination by opposing counsel. This is partly because in a criminal trial, the police and the prosecution are both acting as agents of the state, and the focus is on whether the accused is guilty of committing an offence contrary to the Criminal Code. The role of the complainant is to give a statement to the police, which is the catalyst for an investigation into the alleged crime, and to act as a witness for the prosecution should the matter proceed to a trial. Yet the actual experiences of the complainant, the impact of the assault on his or her psyche and the damages that flow therefrom are only marginally relevant during the sentencing stage, assuming a conviction is obtained. While their evidence is essential in obtaining a conviction for the state, the experience of testifying and its overall effect on the complainant's well being is an afterthought, as opposed to the focal point, of the criminal trial. Consequently, survivors of sexual assault can sometimes feel dually victimized: first as a result of the financial, emotional and physical impacts of the sexual assault and second, by the criminal justice system itself.

Such was the experience of Linda Redgrave, the woman previously identified only as "L.R." or "Complainant No.1" in the Ghomeshi trial. Redgrave has since come forward to waive the publication ban and reveal her full name in the hope that sharing her experiences will help other sexual assault complainants and spawn changes in the system.  In an interview given to CBC, Redgrave noted that she was completely unprepared to give her first statement to the police, which would largely determine the narrative of her entire complaint. She was also not provided with any legal advice or counsel prior to the trial and had limited preparation for her cross-examination. Redgrave observed that while an accused is read their legal rights and provided with legal counsel upon being accused of a crime, the victims of those crimes often do not know or understand their rights and are not given an opportunity to speak with legal counsel. Redgrave stated that she would like to see sex crimes units provide victims with information respecting the legal process or, at minimum, encourage victims of sexual crimes to obtain legal advice before being interviewed.

These concerns have been acknowledged by the Ontario Government through a new initiative targeting sex crimes. In March 2015, the Ontario Government released It's Never Okay: An Action Plan to Stop Sexual Violence and Harassment. The Plan identifies various attitudes, stereotypes and confusion surrounding sexual assault and highlights the need to raise awareness about, and understanding of, consent and healthy relationships. This multi-pronged initiative seeks to challenge the "myths, attitudes and behaviors that perpetuate rape culture", and includes updating sexual education curriculum for grades 1-12, strengthening provisions related to sexual violence on campus and in the workplace, and reforming the complaints process to ensure that survivors of sexual assault feel comfortable coming forward to police. As part this procedural reform, the Plan also includes a pilot program, to be launched this summer, which will provide up to 4 hours of free legal advice to sexual assault survivors.

Sadly, the reality is that at present, victims of sexual assault who choose to seek the advice of a lawyer in advance of going to the police are often viewed with suspicion and hostility. This is particularly troubling when one considers that in any other criminal or personal injury situation, it is expected that the injured party will seek legal advice in order to explore options for redress, recovery and compensation. In the context of sexual assault, however, it is not yet accepted as "normal" behaviour for a victim to seek legal advice before proceeding to make a formal complaint, and some police view with suspicion complainants who come forward with the assistance of legal counsel. Yet the idea that there is something wrong or suspicious about a victim of a sexual crime wanting to understand their legal rights and options before proceeding in and of itself highlights some of the myths and stereotypes surrounding sexual assault, and what a "real victim" would, or should do. It is important that victims of sexual assault be free to seek legal advice in order to glean a better understanding of the system and obtain the support, resources and knowledge required to make an informed decision as to their next steps. Victims of sexual assault deserve to know the high burden of proof that the prosecution will have to meet in a criminal case and deserve to be well prepared for the often aggressive cross-examination they may face from defence counsel. It is important that victims of sexual assault understand how their initial statement to the police may be used in court and what types of questions the police will likely ask them during an interrogation. It is also imperative that victims of sexual assault are presented with the full panoply of legal options available to them, beyond simply serving as a witness for the prosecution should charges be laid against the accused.

For example, without the benefit of legal advice, many sexual assault victims are unaware of the possibility to pursue redress through the civil justice system. Specifically, the civil litigation process may provide a viable supplement to the criminal justice system and may address some of the issues identified by Redgrave and targeted for reform by the Ontario Government. In a civil action, sexual assault claims are based in the torts of battery and assault. Taken together, these torts cover a wide range of misconduct from minor sexual touching to a violent act of rape. Just as with any other personal injury claim, in a civil trial for sexual assault, the Plaintiff must prove, on a balance of probabilities, that the Defendant committed the tort at issue and ought to be held responsible for the damages suffered by the Plaintiff as a result. This is a lower standard than the criminal burden of proof and requires a 51% probability that the assault or battery occurred in order to impose liability on the Defendant. In addition, establishing a lack of consent is not a part of the Plaintiff's burden of proof and instead, the Defendant may raise consent as a defence to the allegations made in the claim. The lower burden of proof in the civil context therefore leaves more room to explore and analyze issues of liability, harm, consent and causation, which may increase the likelihood of obtaining a judgment in favour of the Plaintiff. Further, in the civil context, the Defendant must respond to the allegations made by the Plaintiff and cannot avoid testifying under oath at trial. A failure by the Defendant to respond to the allegations set out in the Plaintiff's Statement of Claim will be deemed an admission of the facts contained therein. As a result, the Defendant's credibility and version of events are also subject to cross-examination, scrutiny and the introduction of conflicting evidence.

A finding of liability in the civil context would not result in the conviction or imprisonment of the Defendant, but it could result in the Defendant being ordered to compensate the Plaintiff financially for the pain of experiencing the assault. There is also room in the civil context to compensate for the actual out-of-pocket expenses and special costs incurred as a consequence of the assault. Lost wages, out-of-pocket medical expenses, drug and STD treatments, victim counselling services, physical rehabilitation and extended time away from work or other lost opportunities may also be compensated as part of the civil process. Moreover, civil claims for sexual assault allow for broader grounds of liability and a Plaintiff may choose to commence their civil action against multiple Defendants, whom the courts may hold jointly and severally liable. For example, if a teacher or parent has breached their position of trust or failed to protect a victim of sexual assault, a Plaintiff may have a claim against that individual for breach of fiduciary duty. If an employer has failed to monitor a staff member or employee who committed a sexual assault, the civil system enables a Plaintiff to claim vicarious liability against the employer for the misconduct of its employee. The potential for liability in this context may provide a much-needed catalyst for reform in the areas of workplace safety and anti-harassment policies, and it may further open up discourse around the issues of consent, sexuality and human rights.

Admittedly, the civil system is imperfect. Civil litigation is, among other things, expensive, uncertain and time-consuming.  Further, an ongoing civil action may be stayed pending the outcome of any criminal charges or trials, so as not to interfere with the accused's right to a presumption of innocence. That said, the potential difficulties in pursuing a civil claim should not negate the right of sexual assault victims to explore that option, or any other option legally available to them. Regardless of what avenues a victim of sexual assault ultimately chooses, it is of paramount importance that the choice is informed by the support and advice of legal counsel. By obtaining independent legal advice before giving any statements to the police, victims of sexual crimes may be better equipped to handle the police interrogation, navigate the criminal process and give evidence should the matter proceed to trial. Further, obtaining confidential legal advice can assist in accessing counselling services and other resources, and it may give victims of sexual assault a better chance of recouping any out-of-pocket costs incurred to deal with the aftermath of the assault should they choose to initiate a civil claim.

Ultimately, victims of sexual crimes require resources. Whether proceeding through the criminal or civil system, or simply seeking to heal, victims of sexual assault deserve to know all of their rights and options, and they ought to be provided with care, treatment and support. Counselling; medical treatment; gynaecological and psychiatric services; time off work, particularly when the assault occurred in the workplace or at the hands of a superior; and knowledge of the legal system are all essential to the recovery process. Accessible legal advice from a competent lawyer with knowledge in the area can provide victims of sexual crimes with a much-needed advocate to assist them in navigating the complexities of the legal system and, perhaps most importantly, provides an additional resource to facilitate and support the transition from victim to survivor.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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