The recent acquittals of two University of Ottawa hockey players – who faced sexual assault charges arising out of an incident in a Thunder Bay hotel room in February 2014 – is the most recent illustration of how poorly suited the criminal law is to respond to sexual violence.
The problematic issues that arose in this case are neither new nor unique and, once again, I find myself wondering whether the existing criminal law and process can work in sexual assault cases, particularly those that involve people known to one another.
Late is not always better than never
It is not uncommon for sexual assault cases to take more than a year to move through the criminal system. This case took more than four.
Some women cite these slow timelines as one of the reasons they are not interested in reporting sexual assault to the police: they just don’t want to put their lives on hold for that long. Even though very little happens for most of the time between the laying of the charge and the criminal trial, women report that it is on their minds in a manner that has a negative impact on all aspects of their lives. Healing and beginning to move on are almost impossible under these circumstances.
There are practical considerations too: moving, taking a vacation, telling or not telling people can all become big issues for a woman with a criminal sexual assault trial lurking in the wings.
Lack of agency for survivors
Survivors of sexual violence have almost no agency once they enter the criminal system. It appears that the survivor in this case did not report what happened to her to the police. No doubt with all good intentions, a friend took steps that seemed appropriate to her at the time, which included notifying Ottawa U about what had happened. Once informed by the friend, the university reported matters to the police. It is entirely possible the woman would never have chosen to involve herself in the criminal process.
In this case, as in many sexual assault cases, there were some inconsistencies among the story the woman told her friend on the night of the incident, the statement she gave to the police some time later and the testimony she gave in court more than four years after the fact. This is not surprising. Memory, for all of us, changes over time.
More importantly, the trauma that is experienced by many sexual assault survivors affects memory significantly. Unfortunately, because Crowns seldom use expert witnesses to explain trauma and memory, this is often not properly understood by judges or juries.
The issue of consent remains at the heart of most sexual assault cases, including this one. The criminal law sets out clearly that, without express and clear consent, any sexual contact is sexual assault. This imposes a much stronger standard than “No means no.” If there is any uncertainty, if the person does not actually say no but also does not say yes, it is incumbent on the other person to stop the sexual contact.
Lawyers, judges (and juries) need to have a comprehensive understanding of the meaning of consent if outcomes in sexual assault cases are to be viewed with confidence.
When I read about this case, as when I listen to my clients tell me about the sexual assaults to which they have been subjected, I am struck again and again by the fear they feel both during and after the assault. The woman in this case was involved in consensual activity with one man, when other men entered the hotel room, naked but for their boots, watched, commented and then indicated an interest in participating. Can you imagine the terror she must have felt at this point?
The line between consent and submission may be a fine one, but there is one, and I think terror would move any so-called consent over the line into submission.
But what else is there?
In this story, while the criminal system seems to have fumbled the ball, the University of Ottawa responded swiftly and strongly to the incident. The head coach was fired. U of O President Allan Rock suspended the men’s hockey program (a suspension that lasted for two years) and established a Task Force on Respect and Equality. Its mandate was to provide recommendations on fostering a campus culture that would encourage respectful behaviour, prevent sexual violence and ensure an environment free from harassment and sexual violence. The Final Report of the Task Force made a number of substantial recommendations, including two aimed directly at athletics: that a gender audit of sports services be maintained and that sexual violence training be required for student athletes and full time coaching staff.
Given the rape culture that is so pervasive in much of men’s sports, at colleges and universities as well as in professional leagues, perhaps it is this internal response that has the chance of effecting meaningful and long-term change for the better.