Not with a bang but a whimper

On December 13, 2017, the criminal law chapter of Mandi Gray’s rape story came to an end when the man charged with sexually assaulting her, Mustafa Ururyar, entered into a peace bond in which he agreed not to contact her for a year and the Crown withdrew the charge against him.

The legal story began in 2015, when Gray made a complaint of sexual assault to the police. Ururyar was charged and, at his trial in 2016, was found guilty by Justice Zuker, who sentenced him to 18 months in jail and ordered that he pay $8,000 restitution to Gray.

Ururyar’s conviction was overturned in July 2017 by Superior Court Justice Dambrot, at which point the Crown had to decide whether or not to proceed with a new trial.

Gray had this to say about the final resolution of the criminal case:

“I do not feel any disappointment. I can’t go through another four days of cross-examination.”

It’s not over yet

While this may mark the end of Gray’s odyssey through the murky channels of Canadian sexual assault criminal law, hers is but one in a long string of well-publicized sexual assault cases in this country in recent years. Virtually all of them illustrate the many ways in which criminal law fails survivors of sexual violence.

Whether we talk about the many cases of sexual assault in which survivors do not even report to the police because they are well aware of the shortcomings of the criminal system, the many cases where police do not lay charges, the all-too-many cases that end in inappropriate acquittals or the survivors who are jailed as a way to force them to testify, it is clear there are serious problems that remain unaddressed.

Linda Silver Dranoff, herself a lawyer, put it like this:

“Should a woman report a rape? I was ambivalent in 1980, when I answered this question for my column in Chatelaine magazine. As a lawyer, I felt I had a responsibility to uphold respect for the law’s ability to provide justice. As a woman imagining myself in the position of victim and complainant, I worried that the experience would end up being more traumatic than the rape itself. . . . So I have resolved my ambivalence. I would advise most women not to report sexual assault to police under current conditions, except in the rare circumstances that her own lawyer (and she needs her own lawyer) is confident of a conviction.”

What needs to be fixed?

Much has improved over the past 30+ years in terms of the criminal response to sexual assault. The definition of what is criminal conduct has been broadened; a woman’s sexual history cannot be used against her; there are greater protections for the privacy of women’s counselling and therapy records. And, the definition of legal consent has been refined to require affirmative, voluntary agreement to the sexual contact.

However, while these improvements exist on the books, they do not always appear to be reflected in what happens in police stations and courtrooms.

For sexual assault survivors to feel more confident in the criminal process, while also continuing to uphold important principles of criminal law such as the presumption of innocence and the beyond a reasonable doubt standard of proof, there are a number of fixes that are needed:

  • Belief in common rape myths must end
  • The role of trauma must be understood by all players in the criminal process, starting with police and ending with judges
  • Survivors must not feel revictimized and excluded from the process
  • New rules need to be developed so that cross-examination of complainants is not so focused on demonizing the woman

What are the fixes?

We can fix some of these problems:

  • Proper education for lawyers and judges; education that is developed and delivered not by other lawyers and judges but by sexual violence experts, many of whom have lived experience with sexual assault and the criminal law
  • Greater accountability for all professionals in the criminal process. The implementation in some Canadian jurisdictions of the Philadelphia model of external reviews of police sexual assault files is a good example of this kind of accountability
  • Regular use of expert witnesses to speak, in particular, to trauma-related issues
  • Free independent legal advice for survivors, as is being modeled in Ontario’s pilot project, but expanded to provide access for all survivors in Canada and to be delivered by community-based sexual violence experts
  • Tighter rules for cross-examination of survivors

All of these changes can happen without jeopardizing the important rights of the accused or principles of Canadian criminal law; it just requires the public and political will to commit to what may be at times challenging discussions.

Square peg in a round hole?

But, important as changes to the criminal system are, other questions need to be asked (and answered).

Is the structure of criminal law just wrong for some kinds of sexual assault? Do we need a different structure that can create a sense of empowerment rather than revictimization for survivors and create an opportunity for those who are being charged in the current system to reflect on their actions, take accountability for them, apologize, learn and not do it again, unencumbered by a criminal record and being placed on the sex offender registry?

In other words, is it time in Canada for a discussion about restorative justice for some sexual assault cases? My answer is an unreserved yes.

2 thoughts on “Not with a bang but a whimper

  1. I’m wondering what kinds of sexual assault charges you feel would best be dealt with by using restorative justice concepts…

    • The starting point for me when thinking about restorative justice is the survivor. Is this a situation where the survivor wants a process in which she can have an active voice? Is she interested in offering the person who has caused the harm the opportunity to hear about the impact his actions have had on her, to acknowledge his responsibility for having caused harm, to take responsibility to learn how to behave differently in the future?

      With this starting point, there are some situations that seem unlikely to be suited for restorative justice: cases involving a serial predator, for example. Others seem more likely: young people where the concept of consent may not be clearly understood and situations where there is not a huge power imbalance between the parties, for example.

      What I think is really needed at this point is a conversation that includes as many voices and perspectives as possible.

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