Sexual assault and the law: how to pursue justice and what to expect

This week, former CBC radio host Jian Ghomeshi was charged with four counts of sexual assault and one count of overcome resistance, choking. His lawyers said he will plead not guilty, and he's been released on $100,000 bail. While charges have been laid in this highly-publicized case, the vast majority of sexual assault cases don't make it that far. Brent speaks with lawyer and sexual assault expert Pamela Cross to discuss what a woman seeking justice can do and what she can expect in the process.

Brent Bambury: Let's say someone has just been assaulted and she wants justice. What do the police need in order to charge someone with sexual assault?

Pamela Cross: The police need to have enough evidence. In a sexual assault case that evidence usually consists primarily, if not entirely, of the statement of the victim. So they need enough evidence so they believe there's a reasonable likelihood that, if the case is prosecuted, a conviction will follow. 

Should a woman consider taking pictures of herself if she thinks that might bolster her case?

It might be helpful. I'm a little leery to suggest that sort of do-it-yourself approach. Certainly any evidence like that could come under attack by the defence lawyer. If, let's say, she wants or requires medical attention and there's a hospital file, perhaps photos taken when she went to the hospital and so on, that would be helpful evidence to have. But, not all women sustain physical injuries and not all women want to go to the hospital to undergo an examination.

So this statement that she makes to the police is going to be very important to the case. What is it that gives that statement credence?

You have to remember that criminal court has the highest standard of proof of any legal proceeding in this country. The standard of proof is called "beyond a reasonable doubt". To make that statement credible in that context, she needs to tell a story that has enough detail that somebody who wasn't there can hear the story and believe that it happened. It certainly has to cover details such as where, when, the context in which the assault took place, the specific details of what happened to her, all of which is easy for me to rhyme off in a radio interview to you but is, in fact, a very difficult statement for a woman to give because of the extreme violation that most women feel after a sexual assault.

In the Jian Ghomeshi case we're talking about allegations that are over a decade old. How does that make it different when it comes to presenting this evidence to the police?

In Canada, there is no statute of limitations on reporting a sexual crime. So, from a legal perspective, it doesn't matter whether you call the police five minutes after it happens or 10 years after it happens. There is always the possibility that if the case proceeds to charges being laid and into the criminal court system that some of the evidence or memories of the people involved may not be as strong as they were at the time. But there is no reason why a case can't proceed through the court to an appropriate outcome even if there's been a delay of many years.

What kind of response should a woman expect from the police?

I think certainly the police response in this country is many, many times better now than it was, say, 20 years ago. In some communities there are specialized teams of police officers who have had training so they can understand the issue of sexual violence so they understand the need for the particular kind of sensitivity that these cases involve. It is certainly true that women do not always receive that kind of response from police.

How likely is it that opening an investigation will lead to charges being laid?

According to research done by Holly Johnson at the University of Ottawa, based in part on data collected by Statistics Canada, there are approximately 460,000 sexual assaults in Canada every year. Of those, just over 15,000 result in formal complaints to the police. Of those complaints, about 2,800 result in prosecution and about half of those prosecutions result in a guilty verdict. Which means, if you start at 460,000 and end at 1,400, the conviction rate in sexual assault cases in Canada is about 0.3 per cent. You see that there's a phenomenal number of women who are saying 'I'm just not going to even enter that process' and I think it's very understandable. Why would you want to put yourself through a highly invasive process where you have to undergo aggressive cross-examination by a defence lawyer and share a terribly intimate and horrible experience with any number of people if there's only a 0.3 per cent likelihood that there's going to be a conviction at the end of that?

Why do so few cases go to trial after police lay charges?

What happens is the Crown reviews charges that are presented by the police and the Crown may have concerns that the police didn't identify. There may be concerns about the victim's ability to testify in a way the Crown thinks could be effective; this could be anything from a victim whose first language isn't English to a victim who may have a criminal history of her own. There's all kinds of biases that affect those decisions. Essentially, the Crown is a second filter or screen looking at whether there's a likelihood of conviction.

Is the courtroom as hostile a place for a sexual assault victim as it once was?

No, it's not as hostile a place as it was, say, 30 years ago, but it is still a hostile place. We have certainly seen some significant progress made largely as a result of decisions made by the Supreme Court of Canada, but there's still a lot of room for aggressive cross-examination, in particular, that can leave the victim feeling as though she is the one on trial. It's well-established in law that exploring the prior sexual history of a victim is not relevant in a sexual assault trial and, in fact, is not supposed to be pursued. But it is not unheard of for a defence lawyer to throw a question like that out, fully expecting the Crown to object and the judge to overrule the question, but meanwhile the victim is in this terrible position of having to hear the question. Even if she doesn't have to answer it, it just further intimidates her and makes her wonder why she bothered.

If there's a guilty charge, what happens to the accused?

Any number of things. If the accused has never been charged before, if it is considered by the court to be a relatively minor sexual assault, the accused could walk out of court with what's called a "discharge," meaning they have no record, even though they've been found guilty. There could be a term of probation, house arrest, or a period of incarceration. The criminal process is very much about the accused, it is not something a victim should embark on thinking it's going to be healing for her.

You've said that if someone you knew were attacked you would advise them to think very hard before they called the police, why?

Not only would I advise another woman of that, if I were ever in that position, I would think long and hard. I think it asks an enormous amount of someone who has already experienced something really terrible to enter a system that can take a huge amount of time to move to completion, that is going to have her reliving what happened again and again and that, in many ways, is going to feel like re-victimization and further disempowerment.