Sexual assault trials: Experts call for alternatives to Canada's current court system

Jian Ghomeshi’s high-profile trial has very publicly laid bare the way the legal system handles sexual assault cases. Many experts agree the system is flawed at best, and suggest the need for separate courts for sex assaults, or restorative justice and better education.

Separate courts for sex assault trials, restorative justice and more education touted as options

Protesters wait for Jian Ghomeshi to arrive for the third day of his trial on Feb. 4. Some of the protesters were calling for the creation of separate courts to specifically handle sexual assault trials. (Frank Gunn/Canadian Press)

Jian Ghomeshi's high-profile trial has laid bare the way the legal system handles sexual assault trials. Several experts agree the system is flawed at best, for both the complainants and the accused.

Both sides have their reputations, memories and actions publicly scrutinized. Many who go through a sexual assault trial say the act of testifying is traumatizing.

The number of people who report a sexual assault is dismally low, and the conviction rate is about 45 per cent, the second-lowest of all indictable offences after attempted murder.

"That's always been true, and the witnesses who testify have always felt that it is they who were on trial rather than the person who they understood as having assaulted them," said Constance Backhouse, a lawyer at the faculty of law at the University of Ottawa. "It's just not working. Everybody's unhappy with the system."

Others argue the legal system is inherently unable to handle these cases.

"It's not even broken — broken implies it worked at some point," said Jane Doe.

Doe, who cannot be named because of a long-standing publication ban, successfully sued the Toronto police in 1998 for using her as bait to catch a serial rapist. She has since been working as a researcher, lecturer and author about sexual assault.

So if the court system doesn't work, what are the alternatives?

Some advocates say separate specialized courts are the answer, while others suggest restorative justice models and better education as the pathways toward positive change.

Separate courts

Several protesters outside the Toronto courthouse where the Ghomeshi trial was taking place advocated for the creation of a separate court to handle sexual assaults.

This is not a new idea — there are already separate courts in Ontario for mental health cases, drug-related cases and for domestic violence.

Constance Backhouse, a lawyer and professor of law at the University of Ottawa, says the creation of a separate court for sex assault wouldn't necessarily address the root of the problem. (CBC)

Pamela Cross is a lawyer, an expert on violence against women and the director of Luke's Place in Oshawa, Ont., a centre that works to help abused women. She said a separate court would likely increase the reporting rate.

"It is a signal that the court system understands that these cases have unique challenges that require specialized responses," said Cross.

She said a key element would be giving complainants in sexual assault cases access to free legal advice — currently, they have to pay for their own lawyers, and it's not a common practice. 

Cross said this system would require extensive training for all involved, including police, first-responders, victim services workers, lawyers and judges.

South Africa has experimented with separate courts without much success. New Zealand and the U.K. are proposing something similar. But not everyone agrees that separate courts could work.

Backhouse said it wouldn't address the heart of the problem.

"If 19 out of 20 [victims of sexual assault] don't even come forward, we are debating a tiny sliver of the problem," she said. "It's not how do we fix the criminal justice system, but how do we stop this problem."

Nnecka MacGregor is the executive director of Women at the Centre, a non-profit group working to end violence against women. She said the specialized courts that exist for domestic violence, for example, are great in principle, but they don't work better than a traditional criminal court.

She said a specialized sexual assault court could end up doing even more harm.

"You get into this environment where expectations have been built up, and it's the same crappy outcome, because nobody seems to understand what the issues are," she said.

Backhouse, Cross and MacGregor insist that if these courts are created, there must be extensive training and education for everyone involved.

Mandi Gray is a witness in a sexual assault trial that was happening at the same time as the Ghomeshi trial. She hired her own lawyer for her case. Some experts say complainants in sexual assault trials should have free access to legal advice. (Lyzaville Sale/CBC)

Another alternative could be civil court, where both parties are required to give evidence and be cross-examined. Anyone can launch a civil suit, but it is an expensive tool where all parties must pay their own legal fees.

Restorative justice

One of the people protesting outside the Ghomeshi trial was Marsha McLeod, a fellow at the Mars Discovery District's Studio Y program. She is researching what a supportive response to sexual assault could look like.

She also sat in on much of the Ghomeshi trial, as well as another highly publicized sexual assault trial that was taking place at the same time in the same courthouse. The complainant in that case, Mandi Gray, has spoken out publicly about the trauma of testifying.

McLeod said both trials affirmed what she already suspected — that it's not possible for the legal system to fulfil the goals of making communities safer and reducing the likelihood that perpetrators of sexual violence will reoffend.

She said it's critical for people to have options other than the court system.

She describes an alternative justice model as "a community-supported process whereby survivors are able to outline their needs and also perpetrators are pushed by communities to take accountability in alignment with survivors' needs, but also in alignment with working to change their beliefs."

McLeod said she thinks more people would report sexual assault if they knew they had more options.

But restorative justice only works, MacGregor said, when the individual who has done the wrong is genuinely contrite and willing to take responsibility for their actions.

"That very, very rarely happens," she said.

Dalhousie University's School of Dentistry used a restorative justice process after it was discovered that 13 fourth-year male students were members of a Facebook page that contained sexually violent content about female classmates. The process has had mixed reviews.

Backhouse said there is a need to fund research into experimental programs to see what might work.

"Because it can't possibly be any worse," she said.

A restorative justice process was put in place to handle the Dalhousie School of Dentistry scandal, but it has received mixed reviews — some have lauded it, while others say they were strongarmed into participating.

Better education

Most of those advocating for change say there is a lack of education and understanding about sexual assault.

"We're still fighting about whether there should be sex ed in schools, for Pete's sake," said Backhouse, referring to the debate about Ontario's new sexual education curriculum. "We're so far behind in this whole area."

Doe agrees.

"Sex education at a really young age, like two or three, that is as natural as learning how to tie your shoes or read a storybook would change things," she said.

CBC Forum: How should Canada's court system deal with sexual assault cases?

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