“We live in a rape culture where we’re taught that sexual violence is accepted and expected. Our culture is one where survivors of sexual violence are blamed or ignored for coming forward with their stories.” – ‘Laura,’ complainant in Jian Ghomeshi case
In Alberta, Justice Robin Camp asked a sexual assault complainant why she “couldn’t keep her knees together.”
In Nova Scotia, Justice Lenehan acquitted a taxi driver of sexually assaulting a female passenger who was so intoxicated that she urinated on herself and passed out in the back of the cab, declaring that “clearly, a drunk can consent.”
In Ontario, Justice Horkins, wrote a 25 page decision for the Ghomeshi trial that berated the three female complainants. Justice Horkins said of one of the survivors that she “was prepared to tell half the truth for as long as she thought she might get away with it” because her memory was not perfectly accurate. He went on to belittle her by saying, “Navigating” this sort of proceeding is really quite simple: tell the truth…”
This list goes on, and on, and on. (And these are only the cases that survivors decide to come forward with, that police officers decide to believe, and that survivors are not intimidated into dropping.)
In an effort to reduce the prevalence of rape myths in the courtroom, the Canadian government enacted s. 276 of the Criminal Code – the ‘rape shield legislation’ – in the 1980s. This provision barred lawyers from attacking a complainant’s credibility in a sexual assault case by asking them questions about their sexual history. (This was redrafted, allowing for lawyers to question complainants about their sexual history in certain instances.)
Unfortunately, s. 276 is just one (inadequate) step towards fairness and still does not deal with the prejudices a judge may have when hearing a sexual assault case. Colour me cynical, but I don’t think any provision in the Criminal Code would have compelled Justice Camp to find the defendant guilty in that case. Rather, the only effort that could have (possibly) saved Justice Camp (and others like him) from tarnishing the reputation of our criminal justice system, would be the un-learning of rape myths, gender stereotypes and cultural norms. No law can change the mind of a person, but education can.
It is clear we need a change in our judicial system. A change that will make the criminal justice system fairer for sexual assault survivors. A change that will make the process of coming forward less horrific.
And a change has been suggested. Earlier this month, interim Conservative leader Rona Ambrose proposed Bill C-337. Bill C-377 would require anyone who wanted to be considered for an appointment to the bench to undergo a comprehensive training program in sexual assault law. It would require the Canadian Judicial Council to report on continuing education courses in matters related to sexual assault law. Lastly, the bill would require judges to produce written decisions, rather than oral verdicts, in sexual assault cases.
Last month, MPs voted unanimously on the hill to fast-track Bill C-377 and send it straight to committee. This year’s budget proposes rolling out $2.7 million over five years, plus $500,000 annually afterwards, for the Canadian Judicial Council to train federal judges on ethics and conduct, while also ensuring access to professional development that is both culturally and gender sensitive.
The current Liberal government has designed a new process by which judges are now appointed: a merit based process with independent judicial advisory committees trained in assessing diversity, unconscious bias and merit. While this is a step in the right direction, there is still a very good chance that a judge with prejudicial views steeped in rape culture could be appointed. It is impossible to know whether someone holds biased, detrimental views. As such, there must be training processes in place to educate judges on sexual assault.
When interviewed about the rape case involving the Nova Scotian woman, the executive director of the Colchester Sexual Assault Centre said the facts clearly suggest the woman was well beyond the point of being able to agree to sexual activity. “I find it deeply disturbing, absolutely outrageous…I am just shocked that [Justice Lenehan] doesn’t seem to understand that dynamic of consent.”
After Jian Ghomeshi was acquitted of sexually harassment, I was devastated, distraught, furious, and frustrated. But I was not surprised. I was not surprised that even though three women came forward with different lived experiences of Ghomeshi harming them, they were the ones put on trial and cast as the villains. I was not surprised that Justice Horkins believed messages exchanged between the complainants ‘sounded like they could be plotting to ruin the former broadcaster.’ I was not surprised that Justice Horkins found “disharmony” between the evidence the complainants’ presented in court, their behaviour, and their communication with Ghomeshi.
Our judges need to do better by us. Our judges need to protect us. We need to ensure our judges fully appreciate the pervasiveness of rape culture and learn to dispel rape myths.
Justice cannot be served if those serving it do not understand injustice.