What should happen?

This article describes a violent rape and may not be for all readers. That said, it’s a story that raises important issues for all of us to think about.

In 1991, a 28-year-old Calgary woman, at home with her toddler, was repeatedly raped by a man who broke into her home late one night. Following the rape, she went to the hospital for a sexual assault forensic exam, during which doctors collected a semen sample, which the police kept on file.

Thirty years later, the police identified Thomas Craig Brodie a likely suspect, using DNA technology and investigative genetic genealogy techniques that did not exist in 1991. They began surveilling him and collected a DNA sample when he spat on the ground. The saliva and semen matched and, in July 2021, when the police confronted him, he confessed.

Late last year, he entered a guilty plea on a charge of sexual assault. Earlier this month, the sentencing hearing was held. The survivor, now in her late 50s and whose privacy is protected under a publication ban, provided a victim impact statement, in which she said:

“On May 4, 1991, I was sentenced to life for a crime I did not commit.”

Brodie asked for her forgiveness for “the terrible things I did.”

The Crown has asked for a seven-year sentence, while the defence has suggested a shorter term would be more appropriate. Provincial Court Judge Fradsham has reserved his decision.

Jail or. . . ?

Who will benefit if Brodie is sent to jail? Are there other possibilities that could be considered?

What many survivors of sexual violence want is a meaningful acknowledgement by the assailant that what he did was wrong and a sincere apology. The entire criminal system works against this possibility most of the time: if the accused is hoping for an acquittal, he is hardly going to admit to any wrongdoing or apologize for it.

In this case, the perpetrator has done both of these things, but that doesn’t seem enough. The defence, not surprisingly, took the position that the sentence should take into account the fact that he is not the man now that he was in 1991. When he committed the rape, he was just a few months past his 18^th birthday and, by his admission, was drunk and high on drugs. Now, he is married and has children. His wife and kids are standing by him. He has been employed in the same job for more than 20 years.

Further, argues the defence, once police confronted him, he immediately confessed and entered a guilty plea, which meant the survivor did not have to testify.

He has said that he would “give almost anything to be able to take back that night,” and that

“Many times over the years, as I got older, I thought about going to police and confessing to them what I had done.”

I appreciate his regret, which is likely sincere as far as it goes, but the fact of the matter is that he has given almost nothing to take back that night and, even if he thought about going to the police, he did not do so.

Meanwhile, the survivor has lived with the horror of what he did to her, no doubt daily, for all those years, as he built his comfortable life. We don’t know the details of her life, but I think it is safe to assume that it has been a smaller and less happy life than she would have had had the perpetrator not decided to break into her home and rape her 30 years ago.

The facts of the case are, as the perpetrator has said, “horrifying:” he spotted the woman through a window while he was walking home from a strip club and broke into her house. He covered his face with his t-shirt and, when she locked herself in the kitchen to call 911, he broke through that door and physically assaulted her, then raped her twice and forced her to perform a sexual act on him twice. The woman screamed for help and tried to escape throughout his brutal attacks on her. Before leaving, he wiped down any door handles he had touched and warned her not to tell anyone or “I’ll be back,” which sounds a lot like a threat to me.

Time to try something new?

Even though I don’t really believe incarceration is the right approach in most criminal cases, there is a part of me that wants to see this guy locked up. His actions in 1991 were deliberate and extremely violent. He persisted in his assaults on the survivor even when she locked herself in a room, called 911 and screamed and screamed. He committed multiple rapes, and took steps to make it difficult for her or police to identify him. He threatened her as he left. He may have been intoxicated, but that didn’t seem to stop him from being able to take steps to protect himself. Surely, then, he should have been capable of not committing the rapes in the first place. He only ‘fessed up when he was cornered.

But, as Maryland U law prof and anti-carceral feminist Leigh Goodmark has said, how does causing harm to a perpetrator undo the harm done to the survivor? (Valerie Warmerdam, the daughter of Nathalie Warmerdam, one of three women murdered in Renfrew County on September 22, 2015, said something very similar about the man who killed her mother at the inquest in June of this year.) Two negatives don’t, in fact, make a positive.

At the risk of raising the ire of some of my colleagues, I want to suggest that, despite its horrific nature, this might be a case for a transformative justice resolution.

Give the perpetrator a sentence of five to seven years. Suspend that sentence and, instead of having him spend those years in jail, require him to write a talk – to be approved by feminist anti-violence advocates – that he will present across Canada at post-secondary educational institutions during orientation activities. His sentence will set out how many talks he is required to give and where he is to give them. If he deviates from the script or fails to deliver, he goes to jail.

Of course, there are a lot of gaps in my proposal. The first and most important is what the survivor would think – one of the basic tenets of transformative and restorative justice is that the person to whom the harm has been done must have a voice in the process. There are practical gaps, too, but let’s set those aside for now.

Does this concept put us on the right track to finding better ways for the criminal system to respond to crimes of sexual violence? Does it provide an adequate consequence to the person who caused the harm? Could it offer the survivor some measure of comfort that the horrors inflicted on her might not be visited upon others in the future because they have the opportunity to learn from this perpetrator? Does it send the message that rape is never okay?

I want to know what you think.