Editor's note: This story contains discussion of the treatment of sexual assault victims in court, but no specific details regarding the Jian Ghomeshi case.
It happens every so often: a court case that seems to captivate and divide a nation, with the potential to shape, break or reinforce conceptions of our legal system.
For Canada, this year鈥檚 frontrunner is the story of Jian Ghomeshi: musician, writer and former CBC radio broadcaster. Once considered an immigrant-Canadian 鈥済olden boy,鈥� Ghomeshi was fired from his CBC position in October 2014 when allegations swirled about his involvement in violent and non-consensual sexual encounters with numerous women. He was formally charged with sexual assault in November 2014 and over the past two weeks his ongoing trial has generated massive media attention across Canada and beyond.
As the latest in a rash of high-profile North American sex-crime cases, the trial is inviting questions and scrutiny about how sexual assault is handled in our courts. Despite the presence of progressive laws, the experiences of sexual assault victims on the stand raise doubt on whether these laws have served a meaningful purpose.
While she could not comment on the ongoing proceedings in R v Ghomeshi, Elaine Craig (left), assistant professor in H漫画鈥檚 Schulich School of Law and an expert on sexual assault law, has become a go-to source for many journalists looking to discuss the treatment of sexual assault complainants more generally.
鈥淭he reality is that lots of sexual assault claimants continue to experience that process as traumatic,鈥� she says. 鈥淲e continue to have a problem with some defence counsel using cross-examination strategies that trade on the same types of rape myths we鈥檝e been working for decades to try and eradicate from the criminal law process.鈥�
Treatment of victims
Prof. Craig is currently working on a book project on the treatment of sexual assault complainants in sexual assault trials. She鈥檚 done a set of different studies: one examining that lawyers engage in one their websites; a second looking at and the cross examination of complainants by defence council; and a third conducting with defence lawyers and crown attorneys in a variety of cities across Canada. She uses these different methodologies all in pursuit of two questions: what does the treatment of those who allege sexual assault look like in these trials, and in what ways can we improve upon that experience?
鈥淐ertainly, those rape shield laws have reduced the historical practice of trotting out evidence of every man a woman has slept with and securing an acquittal on the basis of some sort of problematic inference of credibility, so that sort of practice tends to not show up as much,鈥� says Prof. Craig. 鈥淏ut what we do still see sometimes, particularly in cases where there are ongoing sexual relations between the complainant and the accused, is that the rape shield provisions continue to be either ignored or subverted.鈥�
As Prof. Craig has found in her research, gender-based stereotypes prevail in some cases. The notion that consent can be inferred based on prior sexual history or that a woman鈥檚 credibility can be challenged on the basis of who she was hanging out with, what she was wearing or how many alcoholic beverages she鈥檇 consumed, are all examples of those same problematic social assumptions.
鈥淎nother one would be the notion that individuals who fail to physically fight back or run from the incident screaming 鈥榬ape!鈥� at the first possible chance are less credible,鈥� she says. 鈥淭he problem is that all of these outdated stereotypes are, in fact, based on discriminatory attitudes about women.鈥�
The impact of 鈥渄igital debris鈥�
Another challenge for the courts, as seen in the Ghomeshi trial, is how 鈥渄igital debris鈥� can play an increasing role in criminal and civil trials. Digital debris refers to anything from emails, posts or other technological interactions that leave a record of an individual鈥檚 online history with others. The difficulty in cases of sexual assault is that it is not uncommon for a victim to maintain contact with their abuser after the alleged assault.
The same stereotypes that attempt to erode our understanding of the legal definition of consent spill over into the topic of credibility, especially when digital debris is introduced as evidence. Prof. Craig says there are many social assumptions about how people should respond to sexual or gendered violence 鈥� such as telling someone right away if it actually happened or never talking to the abuser again 鈥斅燽ut there鈥檚 no empirical evidence to support these notions.
鈥淭here are all sorts of reasons why women might continue to maintain contact with someone who has physically or sexually assaulted them,鈥� she says. 鈥淚n part, we鈥檙e socialized in a context where women haven鈥檛 necessarily been empowered to understand their own victimization for what it is until a certain amount of time and experience has gone by.鈥�
Possibility for change?
Considering the outdated assumptions that are still present in proceedings, there is cause for concern over how sexual assaults are handled in the courts. Prof. Craig worries that the high profile nature of the cross-examination of the three women called to the stand in the Ghomeshi trial will serve as a further deterrent to others who have experienced sexual harm. She鈥檚 hopeful for revisions, but not yet convinced.
鈥淚鈥檓 heartened by the increased public attention to this issue,鈥� she says. 鈥淏ut whether what鈥檚 transpiring in the Ghomeshi proceeding will help promote change or not, it鈥檚 hard to predict.鈥�