Sexual assault trials are different from other trials. They are different because, like sexual assaults, they take place in a historical, social and cultural context in which women are considered morally weak and untrustworthy and not competent to exercise jurisdiction over their own sexuality. When the victim of an assault is racialized, Aboriginal, lesbian, gay, transgender, a sex worker, or has a disability — a person may live at more than one of these intersections — complexly interlocking biases and stereotypes come into play.

Sexual assault is an intimate attack on a person’s bodily and psychological integrity. Telling the story over and over, to everyone who has to hear it if a charge is to be laid and the court process is to start, is traumatic. Having one’s memory and perceptions challenged can feel like gaslighting, even though probing for details and testing the narrative for durability are necessary. It’s not surprising that sexual assault is a seriously under-reported crime.

The reforms of the 1980s and ‘90s and the Supreme Court decisions that followed have given Canada good laws defining sexual assault and consent and prohibiting the defence from using irrelevant evidence and discredited reasoning based on myths about sexual assault. Yet complainants hesitate to come forward and those who do find the process devastating. Scholars like Elaine Craig of the Schulich School of Law at Dalhousie and David Tanovich of the faculty of Law at University of Windsor find that most defence counsel avoid using improper questions and illegal reasoning. Some, however, find ways to bring in rape myths and stereotypes in defence of their clients.

A lower standard of proof would cast doubt on the validity of sexual assault convictions, encourage unwarranted belief in the prevalence of false reports and give credence to stereotypes about complainants.

It’s been suggested that to make the process less traumatic for complainants and to weaken the power of stereotypes, the standard of proof should be lowered in sexual assault cases to a balance of probabilities, or to some point between an ordinary balance of probabilities and proof beyond a reasonable doubt. That is a terrible idea. Far from helping complainants, a lower standard of proof would cast doubt on the validity of sexual assault convictions, encourage unwarranted belief in the prevalence of false reports and give credence to stereotypes about complainants.

What can be done, then, to make prosecuting sexual assault less hellish for complainants without impairing the accused’s right to a proper defence?

The suggestion of specialized sexual assault courts, with appropriately educated judges and Crown counsel and supports for complainants, has great merit. Legal representation or advice for complainants should be part of a specialized court program, given that Crown counsel is the state’s lawyer and the complainant is a witness, not a party.

Rules of professional conduct that specifically address the cross-examination of sexual assault complainants and the evidentiary rules would spell out more clearly what is and is not legal and ethical in the defence of sexual assault charges. As. Profs. Craig and Tanovich have argued, sexual assault trials in their current form are harmful to women, and it is “intolerable and shameful that our profession permits these unavoidable harms to be compounded by conduct that is neither ethically nor legally permissible.”

Outside the legal system, better triage procedures in hospital emergency rooms and improved deployment of specialized police officers to interview complainants would help to ensure that complainants are treated sensitively.

Ultimately, sexual assault trials are traumatic for complainants because of the social context of negative beliefs and stereotypes. The legal system, the health care system, the police and other institutions and agencies can mitigate the harm and reduce it to the minimum. The larger task is for society.

About the Author

Maryellen Symons is a sole practice research lawyer at Symons Law and an active member of the OBA Women Lawyers Forum.

Another side of the issue

Recently, criminal defence lawyers have come under fire for aggressively cross-examining complainants in sexual assault cases. Criminal defence lawyer Jody Berkes discusses the principle of 'unreasonable doubt' in a criminal trial. Read more