Women testifying at Ghomeshi trial likely to face intense scrutiny, says complainant in another case

Mandi Gray, 27, has spent a year preparing for what she worries could be a blistering cross-examination in court when she testifies in a sex assault case. She's not involved in the Jian Ghomeshi trial, but her case will be going to court the same day

Survivors cite fear and mistrust of the courts as deterrents from reporting sex assaults, lawyers say

Mandi Gray says she feels like she will be the one on trial when she undergoes cross-examination, despite being the complainant in a sexual assault case. (Lyzaville Sale/CBC)

Mandi Gray has spent a year preparing for what she worries could be a blistering cross-examination in court.

The 27-year-old will be testifying in a Toronto sexual assault case that begins on Monday, the same day the Jian Ghomeshi trial begins in a different courtroom. Even though Gray is the complainant, she said she feels as though she'll be the one on trial.

"Every decision that I made that night will be under scrutiny," she says. "'Well, Mandi why didn't you just get in the cab? Why didn't you just go home by yourself? Why did you drink so much?'

"It's largely a questioning of the woman's decision-making [and] reliability. This whole process has been about me and whether I'm telling the truth, rather than questioning why he made the choices he made that night."

Her reaction is a common one.

Survivors cite fear and mistrust of the courts as one of the biggest deterrents from reporting sexual assaults, several lawyers who specialize in sex crimes told CBC News.

It is by far the most under-reported crime in Canada, with only about five per cent of victims saying they contacted police, Statistics Canada's Victimization survey suggested in 2014.

For perspective, people were 7.6 times more likely to report being the victim of a physical assault.

Jian Ghomeshi case

As Gray's case gets underway on Feb. 1 in provincial court in Toronto, so will Ghomeshi's. The former CBC Radio host is charged with four counts of sexual assault and one count of overcoming resistance by choking connected to three separate complainants.

"I really feel for the women in the Ghomeshi case, because there is going to be so much public scrutiny," Gray says. "Even if there is a publication ban, it is such intimate details of your life."

All three complainants in that case contacted police in 2014, after Ghomeshi was fired from CBC. At the same time, media reports emerged alleging the former Q host had violent sexual encounters with women.

Ghomeshi responded to his firing with a Facebook posting in October 2014 saying he engaged in "adventurous forms of sex" but that it was always consensual.

It's not unusual for one complaint to spark others to come forward even if the allegations date back many years, former Crown prosecutor Wendy van Tongeren says. If others have been taken seriously, people feel more confident themselves, she adds.

Former CBC radio host Jian Ghomeshi makes his way through a mob of media with his lawyer Marie Henein after a court apperance in Toronto. (Nathan Denette/Canadian Press)

Van Tongeren spent more than three decades as a prosecutor specializing in sexual assault cases.

As part of the cross-examination, a defence lawyer may browbeat witnesses, by suggesting they're lying and the sex was consensual, the former prosecutor says.

"It is just an impossible situation for people who are particularly vulnerable," she says. "Their narrative cannot survive — their stamina cannot survive — in an adversarial forum with the nature of cross-examination that's permitted."

And that narrative is critical.

45% found guilty

Securing a conviction often hinges on a complainant's testimony, largely because there may not be other witnesses or much physical evidence.

Sexual assault cases in Canada have a conviction rate of about 45 per cent, according to the latest figures from Statistics Canada. It's the lowest conviction rate for violent crime aside from attempted murder.

To secure a conviction, the Crown has to prove two things beyond a reasonable doubt — that sexual activity happened and that it happened without consent, the legal director of the Metropolitan Toronto Action Committee on Violence Against Women and Children (METRAC) says.

"And [the defence] trying to prove that either she's lying or that she consented can rely on all sorts of stereotypes that the system continues to try to guard against, but it's not perfect," Tamar Witelson says.

Witelson said METRAC would like to see a special court for sexual assault cases, like those used for domestic violence cases, where judges and prosecutors have special training.

Some of that training should include how the memory works, especially when it's affected by trauma, van Tongeren says.

Nature of memory

"When we recall an event, it's a reconstruction of memory fragments," she explains. "Therefore, it is to be expected that there would be some slight differences every time a narrative is given in connection to a sexual assault or, for that matter, any experience."

The defence can exploit these inconsistencies and use them to raise doubt with the judge or jury, van Tongeren says.

Gray, who waived her right to a publication ban on her identify, says she feels prepared to testify in court, saying that legal and mental health support has been critical.

"Had I been on my own ... I don't know if I would have been as confident in my decision-making process," she says. "I spent months and months just almost dreading the cross-exam and being on the stand, but now we're [getting closer] and I think I'm ready."