What’s the point?

I almost didn’t write this blog. Not because the recent decision in the hockey player sexual assault trial isn’t important, because it is. Not because it isn’t worthy of comment, because it is. Not because I don’t care, because I do.

Why, then? Because, I feel, overwhelmingly, discouraged by how clearly this case – like so many before it  — illustrates the inability of the current criminal law to respond effectively to gender-based violence.

I thought I might just take a pass on writing something about the verdict. Lots of others with smart things to say had already produced op eds and the like, so maybe, I thought, I could just sit this one out.

But, over the past few days, I’ve heard from people – normal people, people who are not enmeshed in this work — expressing disappointment, anger and frustration and asking me to explain how this could happen.

So, here goes.

Only to be expected

This verdict happened because the criminal laws were written by men who were thinking about their own interests. It happened because misogyny still exists, and women are still not believed when we talk about the violence done to us by men. It happened because the criminal system worked exactly as it was designed to do.

That’s why, for many of us, the legal outcome of this case did not come as a surprise. The facts in this case, as in so many others, did not tell a story that led neatly to a guilty verdict.

For many who followed the trial closely, E.M.’s cross-examination – seven days of it – was agonizing. It’s easy to be critical of the defence lawyers or of the nature of cross-examination itself. It’s brutal. I wouldn’t want to be a lawyer conducting a cross-examination in a sexual  assault trial, and I certainly wouldn’t want to be a survivor undergoing such an examination.

But it happens that way for a reason, and here it is. Anyone charged with a criminal offence is presumed innocent until proven guilty. The accused person does not have to prove their innocence; the state, in the person of the Crown, has to prove their guilt beyond a reasonable doubt (BARD).

We should all want that protection in a world where people are incorrectly charged. Even with it, those who are marginalized because of their social location, challenges in their lives or personal vulnerabilities are not just incorrectly charged; they are — too frequently — found guilty when they are not.

The BARD standard of proof means — especially in sexual assault cases, where criminal responsibility often rests on the thorny issue of consent — that cross-examination of the survivor is going to be necessarily and particularly vigorous.

The criminal system, as Greg Gilhooly, a lawyer, former hockey player and sexual abuse survivor, noted on CBC News, a “grotesque process.”

What could have made it better?

Last year, Ontario’s Court of Appeal, in a sexual assault case, ruled that expert evidence was not necessary; that it is commonly understood that myths and stereotypes about sexual assault and how victims respond should be ignored.

That was, to say the least, an unfortunate ruling. Case after case show that, in fact, juries and many judges know woefully little about sexual assault and can easily fall prey to myths and stereotypes.

Without such a precedent, perhaps the Crown in this case would have called an expert witness to talk about those myths and stereotypes and the many ways in which trauma can play itself out in behaviours that – to an outsider – might not make sense. Perhaps such evidence would have led to a different outcome.

Perhaps it would have been helpful for the court to hear from an intoxication expert; someone who could have explained that people can walk in high heels and speak without slurring their words but still be too intoxicated to give consent.

There’s little doubt a faster process, in which seven years did not elapse between the events that led to the charges and the trial, would have been better for everyone, whether or not it would have changed the verdict.

Maybe these things would have helped. Perhaps they would have led to a different verdict. But maybe and perhaps not.

Now what?

It’s not hard to imagine the impact on survivors of the judge’s words:

“In this case, I have found actual consent, not vitiated by fear. I do not find the evidence of E.M. to be either credible or reliable.”

Decades ago, I was sexually assaulted in a hotel room by someone I knew. I was in my 30s, not 20; there was one other person in the room; not nine or 10, I had my clothes on, and I had not been drinking. The terror I felt about what that man might be able to do to me was overwhelming. As a result, I made decisions about how to handle the situation that may not have made sense to someone outside that room. I didn’t say no; I didn’t attempt to leave the room; I didn’t lock myself in the bathroom. I went along until it was safe for me to get away.

That was not consent then, and it’s not consent now.

As a colleague of mine said when reflecting on the verdict:

“Maybe now is the time to collectively say we will not use a system that refuses to see survivors. We will not point them to a system that erases their truths. . . We need to divest. We need to disrupt. We need to build something else.”

Further reading

Here are a few of the many pieces written about this case that reflect a variety of perspectives:

• Farrah Khan: “What we can all do now after the Hockey Canada verdict: Be BRAVE”
• Robyn Urback: “#MeToo changed our culture, but it couldn’t change our courts”
• Elizabeth Sheehy, Janine Benedet and Isabel Grant: “Canada’s sexual-assault law is not the problem – it’s the application of it”

And, if you want to read the full decision, you can find it here, in two parts.