Both students and community groups seem to be reaching a consensus that the systems that deal with sexual assault need to change. Dissatisfaction with the system has been ongoing for decades, recently fuelled by events such as the reports of sexual assault by former Redmen players and well-publicized assaults by taxi drivers, among others.
McGill Law students and other community members discussed with The Daily how rape culture affects the way sexual assault cases are handled by the judicial system, and spoke to a growing need for alternative, pro-survivor approaches for responding to sexual assault.
“Right now we don’t even have a system designed to catch most sexual assault cases,” Annie O’Dell, a member of the Feminist Collective of McGill Law who has experienced sexual assault, told The Daily. “Most of it is ignored, forgotten about, or dealt with on a personal level.”
Forms of support for sexual assault survivors – namely sexual assault centres – are often inaccessible. According to Nathalie Duhamel, coordinator at the Regroupement Québécois des CALACS, a non-profit that supports a network of sexual assault centres, the Quebec network has gaping holes that make transportation difficult or impossible for some.
“There is not a single sexual assault centre in Northern Quebec,” she said.
Deciding to report
Sexual assault survivors face difficult choices before deciding to report the assault – many choose to remain silent. Campaigns such as #BeenRapedNeverReported have created awareness of the overwhelming proportion – roughly 94 per cent according to SexAssault.ca, a resource for survivors – of sexual assault cases that aren’t reported.
Duhamel said that not enough acknowledgement is given to the social implications of a survivor deciding to come forward.
“What’s intimidating, firstly, is the step forward, and acknowledging that you’ve been a victim of a sexual assault,” Duhamel told The Daily. “Women feel that there’s an impact with their family, with their friends, in their jobs.”
O’Dell said that, based on a paper by University of Ottawa criminology professor Holly Johnson, the primary form of dealing with sexual assault in Canada is criminal law, which only addresses 3 per cent or less of all sexual assaults.
Justice through the courts?
According to SexAssault.ca, prosecutors have “the power to force [a survivor’s] testimony and will do so if they feel it is in the public interest.”
“The legal system will break into your life, challenge your credibility to prove that you consented even though you did not,” said O’Dell.
Part of the problem is in how rape culture infiltrates the courtroom, Karen Trane*, member of McGill Women and the Criminal Law, told The Daily in an email.
“People still believe a drunk or scantily dressed woman ‘was asking for it’ [or …] that if a woman consents to sex with a man once, he has free reign over her body forever, [or …] that women actually falsely report sexual assault for revenge or a laugh,” she said.
According to Trane, these normalized ideas can – and do – seep into the courts. Under the “rape shield law,” a defence lawyer is not allowed to infer that the survivor “was asking for it” or to cast doubt on their credibility by asking about their sexual history. They often ask anyway, however, during the survivor’s testimony. If the Crown does not object to the defence’s line of questioning, the survivor could give an answer that might affect the views of the jury, judge, and others present.
According to Trane, another problem is that these distorted understandings of consent make it especially difficult for the survivor to prove their testimony beyond a ‘reasonable’ doubt.
“The legal system will break into your life, challenge your credibility to prove that you consented even though you did not.”
“All the accused has to do is say he ‘thought’ the survivor was consenting and throw in any mildly plausible excuse to justify his ‘mistake,’” said Trane. “Never mind that a person who is incapacitated by drugs or alcohol cannot legally consent to sex [… and is] legally not allowed to claim he ‘thought she was into it’ if he was drunk.”
Duhamel explained that the likelihood of proving a survivor’s case beyond a reasonable doubt is a major factor in whether or not the case is prosecuted at all. “Not all complaints are selected or kept by Crown prosecutors, it depends on the facts and if the Crown prosecutor feels that he has a chance to establish proof without a doubt.”
The decision to prosecute comes at the end of a long string of legal procedures that sexual assault survivors would have to follow, if they decide to report their case.
When the survivor turns to the judicial system, the first thing a survivor must do is account for every detail surrounding the assault, and either sign a written statement or make a statement on film. This is all followed by medical examinations and police investigations. Only after a few weeks or months is the case finally turned over to the provincial Crown prosecutor.
“Other than [the criminal system] there is the civil system – you can technically sue somebody for sexual assault, but that is expensive, and the cost is on the survivor to do this,” said O’Dell.
Support for survivors
Although a new sexual assault policy is being revised by a student working group, currently there is no specific policy in place at McGill that deals specifically with sexual assault cases.
O’Dell explained that the current process at McGill is the same as the process for dealing with claims of plagiarism.
“All the accused has to do is say he ‘thought’ the survivor was consenting and throw in any mildly plausible excuse to justify his ‘mistake.’”
“For plagiarism, you have the right to face your accuser. [If] a professor says that you have plagiarized your paper you have the right to interview and question your professor,” said O’Dell. “For sexual assault, the person being accused has the right to question the survivor and be in the same room – so already just the way it works is very problematic.”
Students at McGill are currently leading the drafting of a new sexual assault policy, the main goal of which is to get the University to adopt a pro-survivor approach that offers services and options to survivors.
“In most cases of sexual assault, reactions and policies tend to focus on the perpetrator: whether they’re ‘guilty,’ what sort of action should be taken, whether and how they should be disciplined,” the Sexual Assault Centre of the McGill Students’ Society (SACOMSS) wrote in a statement to The Daily. “Instead, we want to put the focus back on the survivors, and on ensuring they feel safe and are supported.”
“There’s really nothing in place for the average person who doesn’t want to have their life torn to pieces at trial, which still often happens in a university administration setting. That’s why this policy needs to happen,” said O’Dell.
“We need to allow people to have that space to be believed and supported, because it doesn’t exist outside.”
*Names have been changed.