Owning our stories

About 15 years ago, I was sexually assaulted in a hospital emergency department by an orthopaedic resident, with another looking on, while having my broken arm examined. I was in incredible pain and, like anyone with a medical emergency, was frightened. The two young doctors had been flippant and disrespectful to me from the beginning of our encounter, but I had managed to hold my own until the sexual assault.

What did I, feminist lawyer and violence against women advocate, do?

Absolutely nothing.

There were a few reasons for my silence. Most important, I knew who had the power in that examining room, and it wasn’t me. I was worried that if I said anything it might affect my medical care. I was in a state of disbelief that something like this could have happened to me. Like many sexual assault survivors, I was embarrassed  by what I had been subjected to. Finally, I was in so much pain that I could hardly think.

During each of my many repeat trips to the hospital (my broken arm turned into a complicated mess), the offending resident was part of my treatment team, which reinforced the rightness of my decision to be silent. (I did write down the residents’ names and kept that scrap of paper tucked away. Many years later, I made an anonymous report to a commission investigating sexual abuse by medical professionals.)

Do I sometimes wonder whether I should have reported what that resident did to me? Definitely. Do I sometimes wonder about whether, if I had, I might have spared some other woman from a similar experience? Of course.

But, I made the best decision I could make for myself at the time, and that’s the point of sharing this story. Survivors of sexual violence need to own the stories of what has been done to us and be able to share them as we see fit.

Help or hindrance?

Publication bans in sexual assault cases prevent anyone from publishing information that could identify a victim or witness involved in a criminal process. They are an excellent example of legislation that was introduced for all the best reasons — to help victims, especially of sexual crimes, feel safe and know their privacy would be protected – but that has turned out to have unintended negative consequences.

Currently, publication bans are pretty much pro forma in sexual assault cases: the Crown asks for one and the judge imposes it. The survivor is seldom present when this happens and is rarely consulted about whether they want one. Many are completely unaware that one is in place, even though, if there is one, it applies to them.

In other words, even though the purpose of the ban is to protect the survivor, it prevents her from sharing her story just as it prohibits the media, the accused, and anyone else from providing information that would identify her.

When good intentions go bad

Over the past several years, a number of cases have arisen in which sexual assault survivors have sought to have publication bans lifted. In some of those cases, the survivor – many years after the criminal case against their assailant had ended – didn’t even know a ban existed. In others, the survivor had not been asked if they wanted the protection of a publication ban, but one had been put in place anyway. In still others, women have been unable to find out whether a publication ban even exists. Not exactly an approach that supports survivors who want to tell their story.

In one case, a woman was charged with breaching the publication ban herself, because she shared information about the criminal proceedings with family and friends via email. She was not in court when the Crown asked for the publication ban at the beginning of the criminal proceeding against her ex-husband, was not consulted about it and did not consent to it.

As her lawyer, Robin Parker, who successfully appealed her conviction, said:

“In this case, that shield was turned into a sword that [the survivor’s] convicted attacker took up to use against her and the system let him.”

When bad outcomes lead to good activism

Not surprisingly, survivors have come together to support one another as they tackle the issue of publication bans. One such group, My Voice, My Choice, has been actively involved in efforts to change section 486.4 of the Criminal Code, which is the publication ban provision, so “no person is ever forced into silence due to an unwanted publication ban.”

Feminist lawyers have also rallied to support survivors who want to see a new approach to publication bans and to represent – often pro bono – survivors seeking to terminate existing publication bans. In doing this work, we have come to learn just how many women have been silenced by the presence of a ban – often one they did not want – as well as how many women have unknowingly risked being charged by telling their story, unaware that they were legally prohibited from doing so.

We all know that the long-term answer to this problem is to change the law. In the meantime, survivors need tools now to help them navigate the publication ban maze that currently exists. To that end, in 2021, Consent Comes First at Toronto Metropolitan University worked with Megan Stephens, a former Crown Counsel and past Executive Director of LEAF, now in private practice, and me, as well as an editorial group of survivors, to develop a guide to understanding publication bans for sexual assault survivors involved in criminal proceedings. This accessible tool provides self-care tips alongside solid legal information for those who use it.

Law reform is upon us: in late April, the Senate introduced Bill C-12, which proposes changes to the Sex Offender Information Registration Act in response to a 2022 Supreme Court of Canada decision that found that some of its provisions contradicted the Charter of Rights and Freedoms, as well as changes to the Criminal Code publication ban provisions.

Next week, I’ll take a look at the proposed revisions and the work of feminists to make sure the law gets it right. Stay tuned!

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