July 21, 2016
Toronto -- I am tired of people talking to me like I won some sort of rape lottery because the legal system did what it is supposed to.
My experience is regarded as a demonstration of progress in sexual assault cases in Canada. I am expected to feel good because a few people within the system believe me. If we are told to be grateful for receiving the bare minimum, and that we should simply allow for social institutions to further oppress us and violate our rights, I am incredibly concerned.
Accepting things simply as they are because “it could be worse” is the antithesis of progress.
First, it is imperative to acknowledge the numerous privileges that allowed me to have my case get to trial. I am white, heterosexual woman in my late 20’s with a graduate level education and an in-depth knowledge of the legal system. Since I am acutely aware of sexual assault law, I was able to challenge the detective when he attempted to talk me out of withdrawing my police report by reiterating on numerous occasions that I implied consent by drinking and going to the apartment of the accused.
I immediately retained independent legal counsel and that is the best decision I have ever made. Victim/witnesses should not have to retain lawyers to ensure that their rights are not violated. At one point in the trial, my lawyer actually had to write the court and the accused lawyer a letter outlining the ways the defence counsel had violated my rights by disregarding the courts ruling prohibiting cross-examination of my sexual history and therapeutic records.
My numerous and intersecting privileges cannot be ignored and therefore my experience of sexual assault and the legal system is atypical. But what can be drawn from my experience is that if I am drowning in these systems, what does that mean for those who are not university educated white women who are sexually assaulted?
I have no desire to engage in whether the legal system believes me because I don’t doubt that I was sexually assaulted. My case is not a demonstration of achieving ‘justice’ or that the legal system is working to meet the needs of the sexually assaulted, or even prevent future sexual assaults.
I doubt that my case will encourage others to report for two major reasons: the police and a lack of accountability within the courtroom.
I demand that the role of the police in sexual assault be seriously re-considered and eventually abolished. I also call on the provincial and national law societies and associations to hold members accountable for their conduct within the courtroom with special attention to sexual assault and other forms of gendered based violence. Victim/witnesses are in immediate need of lawyers with standing within the courts to represent their best interest.
My experience has demonstrated that Toronto Police Services do not care about sexual assault. It has been thirty years since Jane Doe first challenged the TPS for their discriminatory treatment of sexual assault complainants. The TPS have had enough time to ‘reform’, ‘diversify’ and ‘train’ but it simply does not work. It is time to imagine alternatives outside of the institution of policing for sexual assault.
TPS make it clear that they do not care about sexual assault, so why continue the public façade that they take issues of sexualized and gender based violence seriously?
The detective assigned to ‘investigating’ my case refused to follow-up with key witnesses. There were witnesses willing to speak to the police who could have immediately discredited the perpetrators version of events. I attempted to provide evidence and the detective deemed it to be irrelevant.
This re-affirms my position that victim/witnesses need legal counsel with standing at trial.
Admittedly, I have been ‘lucky’ within the courtroom in some ways. The Crown attorney, Ms. Jennifer Lofft assigned to prosecuting the case has an excellent analysis and understanding of sexual assault, which is more than we can say about most Crown attorneys in this country. As a victim/witness Ms. Lofft is the ideal Crown attorney. The judge assigned, Justice Marvin Zuker, listened to the case attentively and has been nothing but respectful and kind to me as a victim/witness.
Both the Judge and Crown did their jobs well. But, this should not be out of the ordinary in sexual assault cases. Ms. Lofft and Justice Zuker both excelled at their respective jobs and did what they could to ease the trial process for me. However, I will not congratulate the legal system, or the various courtroom actors for doing what they are supposed to do. Furthermore, I am not going to pretend that this process did not infringe on my rights on numerous occasions or create substantial and unnecessary hardships for me.
I am extremely concerned about the tactics employed by the accused lawyer Ms. Lisa Bristow. If such behaviour remains unchecked by the courts or the law societies it is assumed to be condoned that lawyers can pick and choose when to abide by the law.
Ms. Lisa Bristow, defense lawyer for the accused:
• Unfairly criticized me and questioned my motives to attend the third-party records application that could dramatically impact my rights to privacy, equality and security of the person under the Charter.
• Made numerous juvenile accusations such as sticking my tongue out and winking at the accused.
• Directly asked me about my sexual history despite the court prohibiting this line of questioning. In fact, I had to directly ask the Judge if I even had to answer some of her graphic and nearly pornographic lines of questioning (I didn’t)
• Challenged me on numerous occasions for not verbalizing non-consent. This line of question presumes the notion that women who do not explicitly say ‘no’ are saying ‘yes’ to sexual activity. This demonstrates a substantial lack of understanding of sexual assault law in Canada.
• Asked me about discussions with my therapist despite the court ruling that this evidence is inadmissible.
• Read out my private phone number in open court.
• Referred to having sex with me as having sex with a dead fish (despite gasps from the gallery, there was no objection to this suggestion)
• Continued cross-examination over a period of four days over three months for what I assume to be an attempt to rack up as many billable hours as possible. The perpetrator spent two hours under cross-examination.
I am fully aware of the accused right to full answer and defence; however, it is my opinion that this can be achieved without berating the victim/witness and violating my right to privacy and security of the person.
Justice within a sexual assault case regardless of the verdict will always remain an illusion.
I did not want an 18-month endeavour when I reported. I quite literally only wanted to return to my campus without having to be confronted by this person. I never wanted to be in the media or become the public face of sexual assault on campus.
I felt I had no other option to return to university where I work and study.
My experience of ‘justice seeking’ has been de-humanizing and demonstrated that my rights and experiences of violence are irrelevant to every social institution involved including the university, the criminal justice system and the health care system.
David Butt (legal counsel): (416) 561-6997 email@example.com
Jane Doe: (647) 929-0580