Jian Ghomeshi case: How to stop sex assault trials from putting character on the stand

January 29, 2016 – Anna Mehler Paperny, Global News

People who say they were raped are called liars, drunks, druggies, sluts, flirts, teases — not by trolls on social media but by robe-clad lawyers in court.

To a degree, that’s the lawyers’ job: An adversarial court system and the right of every accused person to a fair trial means the vast majority of sex assault cases come down to what Dalhousie University law professor Elaine Craig calls “contests of credibility.”

But there’s a difference between credibility contests and character assassination, she says.

“Inevitably, there’s going to be a tension between protecting the rights of the accused and making the sexual assault trial process less brutal for complainants. But I do not think that aggressive, bullying, stereotype-invoking cross examinations are inevitable.”

In Canada right now, however, it is not unusual: Craig’s paper for the University of Toronto Law Journal outlines in often graphic detail the ways complainants in rape cases are derided, ridiculed and scrutinized in cross-examinations.

“There is some empirical evidence to suggest that we all continue to think on the basis of certain outdated social assumptions,” Craig said — that a women’s sex life, the amount of alcohol she drank or the way she was dressed indicate her likelihood of consenting to sex.

That tussle over credibility will likely be on full display during the trial of former CBC radio host Jian Ghomeshi, who is charged on four counts of sexual assault and one of overcome resistance – choking. He has pleaded not guilty to all charges.

In many sex assault cases, what’s at issue is not so much whether the activity took place but whether it was consensual. The case will then rest on whose story the judge believes.

READ MORE: Why don’t women report rape? Because most get no justice when they do

When is a judge’s intervention ‘inappropriate’?

The persistence of specious stereotypes in the way we perceive consent, coercion and sexual violence was on display in the commentary of Alberta Justice Robin Camp, who asked a sexual assault complainant why she hadn’t kept her knees together.

But while that’s a somewhat extreme case, skepticism toward rape accusations and scrutiny of accusers is hardly unique.

Last year an Alberta trial judge stopped a defence counsel from using a complainant’s alleged drug use and purportedly flirtatious behaviour to diminish her credibility — behaviour the judge called “unnecessarily confrontational” and “out of hand” — only to have the defendant’s conviction overturned by the Alberta Court of Appeal on the grounds that the judge’s interjections were unfair.

Interrupting the defence counsel’s questions about whether the woman had been flirting, drinking or high on marijuana was “inappropriate,” “amounted to advocacy on behalf of the Crown,” and “deprived the appellant of the possibility of using this point to test it the complainant’s credibility,” the ruling said.

Justice Russell Brown, one of the two judges behind that majority decision, was appointed to the Supreme Court in July.

(Full disclosure: One of the other judges in that case is related to this reporter. She gave a dissenting opinion in R v. Schmaltz. She does not discuss her work.)

Craig worries that judicial rebuke and overturned conviction will make judges think twice before intervening in an aggressive cross-examination.

“The Schmaltz case … has the potential to dis-incentivise trial judges from taking reasonable and appropriate measures to protect complainants from unnecessarily aggressive cross examination.”

JIAN GHOMESHI TRIAL: What you need to know as the trial begins

An effective defence

None of this is to say that lawyers for people accused of rape shouldn’t mount strenuous, principled defences.

“Certainly I’ve read transcripts where defence counsel engaged in an effective cross examination, where their client was acquitted, where credibility of the complainant was at issue and they managed to impugn or attack that credibility without engaging in bullying cross-examination.”

Margaret Bojanowska, a Toronto-based criminal defence lawyer who specializes in sexual assault cases, says she’ll zero in on inconsistencies in a complainant’s story, rather than her clothing or character.

“If you’re meticulous, you will find there’s inconsistencies.”

She’s also wary of having her line of questioning “shot down” by judges.

“I try to stay away from the stereotypes: If the Crown doesn’t object, stop me from asking those questions, then most judges will,” she said.

“I can’t ask questions like, ‘Were you wearing a short skirt?’ Because it doesn’t matter. I’ll get shot down immediately.”

Substance use is a legitimate line of questioning as it pertains to a story’s reliability, both Craig and Bojanowska said.

The alcohol you drank or the drugs you consumed could be relevant in determining how well you can remember a sequence of events — but not in questioning your ethics or promiscuity.

“A judge would want to know if a complainant was intoxicated,” Bojanowska said.

So how do you maintain robust defences without victimizing victims?

Shield laws were supposed to help: Put in place in 1992, they preclude lawyers from using a person’s sexual history to demean, humiliate or intimidate her. (You are allowed to use it for other purposes.)

Canada’s affirmative definition of consent, formally adopted in 1998, also means that not saying “No” doesn’t mean a person consented to sex.

And judges can deem certain evidence or lines of questioning irrelevant to the case.

But Craig also thinks defence lawyers have an ethical obligation not to “whack” complainants.

“Defendants in Canada don’t have a constitutional right to every defence possible. They don’t have a constitutional right to trade in stereotypes.”

READ MORE: ‘I needed to know it wasn’t my fault’

The cost of the status quo

Not changing the atmosphere has impacts beyond the individuals on the stand, Craig said: Fear of being pilloried, of not being believed, can make survivors of assault reluctant to come forward at all.

“We do have data that suggests one of the main reasons women don’t report sexual assault is fear of the criminal justice process. And that would include fear of being whacked on the stand,” Craig said.

“I think that’s a legitimate concern.”

And we know they don’t come forward: 23 per cent of sexual assault charges in 2011-12 adult criminal court resulted in a guilty verdict, according to Statistics Canada.

And that’s only the cases that go to trial. Many, many more never make it that far.

Women reported being victims of 472,000 sexual assaults in 2009, according to Statistics Canada’s General Social Survey; men, 204,000. Yet police-reported crime statistics for that year show barely 21,000 incidents of sexual assault, and 7,951 persons charged.

In its efforts to change that, Ontario has launched a pilot program that provides legal aid to prepare sexual assault complainants for trial. “Lots of complainants think the Crown is their lawyer,” Craig said. But it isn’t.

(Bojanowska, for her part, is “not sure a complainant actually needs his or her own lawyer.”)

Pursuing justice following a sexual assault can be arduous under the best circumstances: You’ll tell your story at least four times — to a sexual assault nurse, to police, to a preliminary inquiry, to court — before the defence’s cross-examination begins.

“By the time they’re cross-examined, they’ve already given four statements about what’s happened over the course of several years,” Craig said.

“Imagine trying to remember — was is three beers, or four? Were your panties pink, or were they yellow?”

Craig would also like to see better education for judges — on substantive sex laws as well as social mores.

“The bottom line is that we still operate in a context where the legacy of disbelief of those who allege sexual violation continues to inform our responses,” she said.

“So that’s a big challenge.”

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