The recent sexual assault trial of five former Team Canada hockey players should put this question to rest forever. Anyone who has followed this trial and still wonders why fewer than 10% of sexual assault survivors report their assaults to the police is just not paying attention.
If you are one of those people who has not been paying attention, read the media coverage of any of the FIVE cross-examinations (five accused, five legal teams, five cross-examinations) E.M., the complainant in this case, had to undergo over her nine days on the stand. You should be paying attention by the time you finish doing that.
It’s pretty simple, really. Survivors of all forms of gender-based violence, including sexual assault, seldom report what has been done to them to the police because the criminal system is unable to respond in a way that is helpful.
Many of the players in that system do a great job of supporting survivors through a process that is unbearably difficult, by bringing a trauma-informed approach to their responsibilities. Their work is hard and often thankless, so let me take a minute to thank them for their efforts. The lives of survivors and their families would be even more difficult if they weren’t there. I couldn’t do it, but I am glad there are those who can and do.
Others, however, do not bring such an educated and trauma-informed approach to their work. This further traumatizes survivors, perpetuates myths and stereotypes about misogynistic violence and those who are subjected to it and contributes to outrageously flawed outcomes.
Systemic failure
My comments here are not intended to be an indictment of any of the individuals in this (or other) sexual assault trials. They were, for the most part, playing the roles the system requires them to play. It’s the system itself that is fatally flawed.
“a complainant [is] subjected to an exhausting legal process under the glare of public scrutiny. Delays, mistrials and legal technicalities tak[e] centre stage, while care for the person at the heart of the case – someone reporting harm – gets pushed to the margins. . . . For many who have been subjected to sexual violence, [this trial] confirms what we already know: The criminal prosecution system was never designed to prioritize healing, safety or accountability. It is not a justice system, but a legal one.”
As Deepa Mattoo and Pam Hrick wrote recently:
“The criminal system is fundamentally flawed as a vehicle for justice for survivors to most forms of sexual violence. . . . However, for too long, we have relied on this system as the primary way to deal with sexual violence. Surely one of the things that the Hockey Canada trial and other high-profile prosecutions tells us is that it is not meeting muster.”
Justice over law
The criminal law was built to manage single-incident offences, most often in situations where the causer of harm and the person harmed don’t know one another. But in situations of intimate violence, this structure just doesn’t work. Too often, it silences the survivor. She has no control over the system once she reports what has been done to her. She is disbelieved. Her motives and integrity are challenged. In some cases, even as intimate details of her personal life – most of which are irrelevant – are examined with a fine tooth comb, she does not have the right to tell her own story.
She is, legally, little more than a bystander to a story in which she is, really, the central figure. The outcome – often years after her initial contact with the labyrinthian criminal legal system – is seldom what she may have hoped for when it all began.
The system is designed to discourage meaningful accountability on the part of the person who has been charged. With the possibility of a criminal conviction hanging over their head, few accused people are willing to offer up their responsibility and an apology. A guilty verdict leads to some kind of penalty that is not rehabilitative; a not guilty verdict empowers the individual to think there was nothing wrong with what they did.
In contrast, restorative justice offers more positive possibilities. It only works, of course, if everyone is participating voluntarily, which is the first big difference from the formal criminal system.
The person who has been harmed has the opportunity to tell their story about what happened and how it has affected them, rather than providing scripted responses to questions designed to determine whether what happened fits a specific criminal offence.
The person who has caused the harm can hear this story and, hopefully, take accountability for their actions and the impact they have had, free from concern about whether they will be found guilty. Others who may have been affected – family, friends, community – can share their parts of the story and – together – steps towards healing and prevention can be decided upon.
As its name says, it restores. To return to Farrah’s words:
“If we want sexual violence to end, we need more than legal reform. We need transformation. And that starts with creating spaces where people are invited not just to follow rules, but to care for each other out loud.”
Next week: A personal story about sexual assault and the role that restorative justice could have played.