Canadian Store (CAD)
You are currently shopping in our Canadian store. For orders outside of Canada, please switch to our international store. International and US orders are billed in US dollars.
Women are talking about their experiences of sexual violence and harassment. They are doing so publicly, unapologetically, and in enormous numbers. They are encouraging other survivors of sexualized and gender-based violence to speak out, advocating the removal of barriers to those who want to give voice publicly to the sexual harms that they have endured, and pressing for changes to the way we understand and address sexual harm.
The focus of my research in Putting Trials on Trial: Sexual Assault and the Failure of the Legal Profession is on the unnecessary and, in some cases, unlawful harms that women suffer when they choose to, or are forced to, speak about their experiences of sexual violence in one particular public context – the criminal trial process. Before Bill Cosby, Jian Ghomeshi, Harvey Weinstein, and #MeToo, testifying as a complainant in a criminal trial was one of the only forums in which women spoke publicly about their experiences of sexual assault.
Testifying in a criminal prosecution about one’s experience of sexual harm is different from expressing that experience in social and traditional media or engaging in community activism. The criminal trial process demands a highly scripted, stylized, regulated, and confined narrative of all its witnesses. Stories unfold strictly through a process of question and answer. Some parts of the story are not permitted. Other parts are required in a trial, often without the context a survivor might want to provide, no matter how irrelevant the survivor believes those parts to be, or how dehumanizing it is to be forced to recount them in a courtroom. This is in stark contrast to other public forums, where survivors are better able to tell their story when, and as, they see fit. In these non-courtroom settings women are talking about their experiences in ways that depart from, and resoundingly reject, the longstanding and powerful social norms that strongly discouraged speaking publicly about the ways in which, and the people by whom, they were sexually harassed or assaulted. This seems hopeful and radical.
We are unlikely to see that kind of transformative moment in a courtroom. However, there are harms caused to sexual assault complainants under our current criminal law system that are unnecessary and thus inexcusable. Putting Trials on Trial examines the ways in which defence lawyers, Crown attorneys, and judges could make the criminal law process more humane for sexual assault complainants without disrupting the demands and limits placed upon complainants by the legal system. The proposals in the book are modest relative to more radical transformations of our social response to sexual violence, but nevertheless they would improve the experience of sexual assault complainants in important ways. Most especially, the book urges those of us who work with and within the legal system to better understand and commit to ameliorating the connections between sexual assault, shame, and the role that discriminatory, gender-based stereotypes continue to play in sexual assault trials. The current, arguably unprecedented public dialogue and disclosure about experiences of sexualized and gender-based harm may help in this regard.
Survivors of sexual violence identify shame as one of the main reasons they do not disclose their experience of sexual harm. Shame feeds into self-blame. As Karyn Freedman writes, explaining her own unwillingness to discuss her experience of sexual violence,
Keeping our rape stories secret lowers the decibel level on the magnitude of the problem and perpetuates the idea that rape happens somewhere else, to someone else. It makes us complicit in the act of covering up the realities of sexual violence against women, which helps to preserve the myth that women have complete control over their bodies. Again, the picture of rape that falls out of this worldview turns rape into a personal problem rather than a social one. No wonder rape survivors end up blaming themselves.[1]
Shame promotes silence and silence leads to more shame. Shame and its correlate, self-blame, are two of the most significant harms that flow from sexual assault and sexual harassment. The less we keep experiences of sexual harm a secret, the less they will seem like a personal problem or flaw.
But there is more. This shame and self-blame are amplified by the role that gendered stereotypes about women, sex, and sexual violence have played and continue to play in both social and legal understandings of sexual harm. Women have been socialized to blame themselves when they are sexually assaulted or harassed not only by the norm of silence that has historically enveloped the social problem of sexual harm but also by entrenched stereotypes about women, sex, and rape. Gendered stereotypes about sexual assault are, of course, aimed at blaming women for their own victimization: women who failed to fight back wanted it; women who dressed a certain way were asking for it; women who texted their assaulter afterwards are lying; women who did not disclose their harasser’s sexualized comments at work are using their gender to get ahead.
Despite how familiar, identifiable, and debunked these stereotypes are, they continue to be deployed against sexual assault complainants. The social unacceptability of speaking openly and publicly about one’s own experience of sexual violence or sexual harassment likely has contributed to the potency and intransigence of these stereotypes. The more women disclose their experiences of sexual harm – including the details of what occurred and the impact it had on them – the more we force these constant and repeated realities into public discourse and disrupt the stereotypes. It worked, to some extent, for LGBTQ communities. Women are coming out.
Now let’s return to the connection between the outpouring of public revelations and the criminal justice process. Invoking stereotypes to attack a woman’s credibility and focus blame and responsibility upon her contributes to the traumatic experience reported by too many of those who testify as sexual assault complainants. One of the promising aspects of vastly increasing the number of women who publicly disclose their own experiences of sexual harm is the possibility that these revelations will reduce the efficacy of, and thus the use of, these problematic and discriminatory social assumptions in legal processes. In Putting Trials on Trial I document – through careful examination of recent trial transcripts, interviews with experienced criminal lawyers, a review of Canadian case law, and consideration of the public statements that sexual assault lawyers make about sexual assault – the ways in which the practice and adjudication of sexual assault law unnecessarily contributes to the trauma of trials for sexual assault complainants. The book identifies specific practices that unnecessarily harm complainants: the cross-examination strategies by defence lawyers that rely on legally rejected rape myths; the failures on the part of some Crown attorneys to object to questioning that is arguably discriminatory and inconsistent with the legal protections in place to protect sexual assault complainants and eliminate outdated stereotypes from sexual assault trial; and the flawed reasoning of some trial judges that reflects both a lack of understanding of basic legal concepts like the definition of consent as well as their reliance on outdated stereotypes about women, sex, and sexual violence. A broader social rejection of victim-blaming stereotypes and outdated, discriminatory ways of understanding sexual assault is likely to reduce their efficacy and, as a result, role in sexual assault trials.
Consider one final observation regarding the relationship between sexual assault trials and the public dialogue about (and disclosure of) experiences of sexual harm. I have often speculated about the proportion of sexual assault complainants marginalized on the basis of Indigeneity, race, and/or socioeconomic status. I have not done empirical research to examine whether Indigenous women, for example, are overrepresented in the minority of sexual assault survivors who testify as complainants in the criminal justice system. While there is strong evidence of the disproportionately high rate at which Indigenous women are sexually assaulted in Canada relative to non-Indigenous women, I am not aware of any research establishing whether they are also disproportionately likely to serve as complainants.
Anecdotally, my impression from the transcripts I have studied is that younger women, less-educated women, poorer women, and Indigenous women seem to appear more frequently as complainants. If my educated guess is correct, this means that more marginalized, less-powerful women bear the brunt of the trauma of the trial. Less secrecy surrounding experiences of sexual harm may encourage more survivors to report experiences of sexualized violence to the police, which could promote more diversity among the very small proportion of survivors who serve the criminal justice process as complainants.
[1] Karyn L. Freedman, One Hour in Paris: A True Story of Rape and Recovery (Calgary, ab: Freehand Books, 2014), 77.
No comments yet.