One of the most remarkable aspects of the sordid Jian Ghomeshi story has been the ensuing explosion of women’s voices recounting episodes of sexual violence that have gone unreported. #beenrapedneverreported, a hashtag launched by my friend Sue Montgomery of the Montreal Gazette and Antonia Zerbisias of the Toronto Star, has become a sad but necessary global phenomenon. Thousands of women from around the world have used the hashtag to share painful memories sometimes buried decades in the past.
Being able to share these painful memories has had a therapeutic function for many of these women. I can’t imagine what it must be like to go years with the pain and trauma of sexual assault compounded by the feeling that, for a variety of reasons, this pain must be kept secret.
There is undoubtedly a huge range of reasons that women choose not to report episodes of sexual assault. The majority of cases of sexual assault occur at the hands of people who are known to victims, often family members. Women who report cases of sexual assault that occur within the family sometimes find that they are shunned by other family members. Those who are assaulted by superiors in professional contexts fear reprisals that might affect their careers. Most insidiously, we have it seems created a culture in which women who have been raped experience shame. They are made to feel as if what has happened to them is somehow their fault.
A Globe and Mail article published last year claimed that up to 90% of cases of sexual assault go unreported. Of those that are reported, only a small proportion give rise to criminal convictions. What’s more, when convictions are sought, evidentiary requirements make it the case that the charges that are laid are for the least severe form of assault, which carries prison sentences numbered in months rather than years. The picture painted is one of something close to impunity.
Women who have been victims of sexual assault thus experience a variety of pressures against reporting. The sense that official channels will offer no redress is at least part of this large, complex picture.
The first thing to note about this sad state of affairs is that it points to a huge problem at the level of policy. Imagine living in a society in which home invasions and burglaries were routine, but in which the institutions charged with investigating them and with prosecuting offenders were deficient to such a degree that you felt that there was really no point in calling the police. You’d probably say that I was referring to a failed state of some kind. Such a description calls forth images of Guatemala, not Canada. Yet if the numbers cited in the Globe and Mail piece I referred to above are even roughly correct, this is the kind of situation that Canadian women are facing in in one of the most advanced and institutionally sophisticated societies in the world.
What is to be done? How can the system of reporting, investigating and prosecuting be changed in a way that makes women who have been victims of sexual assault more likely to come forward through official channels?
This question leads to a second observation. Our system of criminal justice is based on the principle of the presumption of innocence. When the state purports to take away a person’s liberty, it must be able to prove criminal responsibility beyond a reasonable doubt. Our system ascribes greater importance to false positives than to false negatives. Our syste is based around the idea that it is better that 10 guilty people go free than that one innocent person be convicted.
There have been calls in the wake of recent events for the principle of presumed innocence to be questioned. Though I understand why some may come to feel that the principle sometimes comes to operate like a protective shield for criminals, and in this case, for rapists, our institutional response to the grave societal problem that unreported sexual assault represents must incorporate the principle, rather than rejecting it. The state possesses the power to lock people up, and the stigma that attaches to the unjustly convicted, even notwithstanding the penalties that the state is capable of visiting upon them, suffices to make it a no-brainer that whatever institutional fixes we find incorporate the presumption of innocence rather than throwing it overboard.
The question of how to address the high degree of impunity that presently accompanies sexual assault can thus be divided into three distinct questions. First, what are the aspects of the criminal process that are required in order to uphold the principle of presumed innocence, but that can nonetheless be modified in order to make the process a less hostile and painful one for women? We have as a society already started thinking about this, and have put in place rape shield laws that prohibit defense attorneys from delving into the sexual histories of victims. But there may be changes to other aspects of the criminal process that might be envisaged in order to prevent courtrooms and police stations from being places where women are made to relive the violence that they have gone through. For example, a criminal lawyer in Toronto wrote a piece in the Toronto Star in the wake of the Ghomeshi affair in which he stated that he had routinely advised women against reporting their rapes to the police. He now claims that he would no longer give this advice, and that he would advise his own daughters to lodge a formal complaint to the police if they were ever victims of sexual assault, despite the rigors that cross-examination would impose upon them. What struck me, as a non-specialist of criminal procedure, was the concession that the process of establishing the guilt of their attacker might still be ongoing three years after the assault. Are there any ways, compatibly with the presumption of innocence, to make it the case that sexual assault trials are expedited, so that women are not faced with the prospect of having to wait for years for the judicial process to arrive at a conclusion? I am far from being a specialist in matters of criminal procedure, but it seems to me that this is the kind of question that warrants discussion and exploration.
A second question has to do with whether aspects of the criminal process that are not strictly necessary to upholding the presumption of innocence might not be rethought in a manner that might increase both the deterrent effect of the law, and the willingness of women to come forward. Colin Macleod has already touched in this blog on the issue of consent. A question that might be raised in the wake of Ghomeshi is the degree to which consent may in certain cases of sexual violence be something of an ethical red-herring. Feminist analyses of consent has been urging for years that the formal trappings of consent may be present even in circumstances in which the conditions that would be seen as criterial for valid consent in other areas (think of the doctrine of “free and informed consent” in the medical arena) are clearly absent: circumstances of coercion, or power differentials, of impaired judgment, and the like. A question that might be asked is whether the conditions that we view as necessary to consent being taken as valid in areas such as medicine or contract are insisted upon in criminal procedure around sexual assault. This is obviously a tricky issue: Andrea Dworkin famously argued that patriarchy leads to a situation in which consent can never be taken as valid. How do we draw lines that take seriously the idea that there are circumstances in which coercion and formal consent are not taken to be categorically opposed without giving rise to the conclusion that sexual relations between men and women can never be consensual?
A third question has to do with prevention rather than punishment. Clearly, an adequate policy response to the societal problem that has been made un-ignorable by the #beenrapedneverreported movement would look well beyond the criminal law. There has been much talk in recent weeks of a “rape culture”. The staggering statistics cited above about the incidence of unreported sexual assault gives credence to the idea that we do, indeed, live in a society that trivializes sexual assault. At the same time, there is something disempowering about the thought that our culture as a whole somehow conduces to rape. A “culture of rape” is made up of distinct institutions and practices. We have to identify as many of these as we can, and start talking about ways in which to change them. One example among a great many that I offer up for discussion: I have three kids, two daughters and a son. As far as I can tell, none of them has received anything even resembling adequate sexual education through the school system. Clearly, we must do a better job talking about sex, about power, and about gender relations within families – the school system can’t do everything. But the utter absence of sex ed from schools here in Quebec, (where sex ed includes not just the “mechanics” of sex, but also, crucially, the aforementioned issues of gender relations and power) means that the sexual education of our youth will default to the general culture.
I’ve identified three avenues that policy reform aimed at addressing the societal scourge of sexual assault might take. I am aware of how woefully inadequate the reflections proposed under each of these rubrics is. I would invite commentary from readers on each one of these avenues, or, indeed, on avenues that I have failed to identify. I can’t think of any area more desperately in need of reform than this one. We have as a society massively failed at the task of prevention of sexual assault. We should be grateful to the women who have come forward to tell their stories. But it would be a tragedy if the consciousness-raising that this movement has given rise to did not result in some concrete changes in the way in which we deal with the issue of sexual assault in Canada.