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Whacking the complainant: Some believe there are better ways of dealing with sex assault cases

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It’s shaping up to be one of the most talked-about sexual assault trials of this decade. Disgraced broadcaster Jian Ghomeshi began his trial on four counts of sexual assault and one count of choking this week in Toronto. #ghomeshi is trending. Anne Kingston from Maclean’s magazine is live tweeting it. Chatelaine magazine is writing about it. Excerpts are top copy on Toronto news sites. It's hard to miss.

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Opinion

Hey there, time traveller!
This article was published 03/02/2016 (2551 days ago), so information in it may no longer be current.

It’s shaping up to be one of the most talked-about sexual assault trials of this decade. Disgraced broadcaster Jian Ghomeshi began his trial on four counts of sexual assault and one count of choking this week in Toronto. #ghomeshi is trending. Anne Kingston from Maclean’s magazine is live tweeting it. Chatelaine magazine is writing about it. Excerpts are top copy on Toronto news sites. It’s hard to miss.

Ghomeshi’s lifeline in all this is Marie Henein, described in Toronto Life as the “smartest, toughest, most sought-after defence lawyer in the city.’ The fact that she’s a woman defending a man on charges of sexual violence can’t be ignored. Her mere presence suggests Ghomeshi is not to be feared by women. She normalizes him and makes him look safe. This is part and parcel of the job of the defence. As Henein learned early in her legal career, she is the face of her client.

In society, sexual assault remains mired in common myths and stereotypes. These include the belief that women lie or exaggerate their claims about sexual assault; that sexual assault is about mixed romantic messages that confuse men into believing that consent has occurred; that nice guys don’t rape (and only crazy men do); and that what women wear or how they act is a determinant for sexual attacks.

Frank Gunn / THE CANADIAN PRESS Jian Ghomeshi leaves a Toronto courthouse with his lawyer Marie Henein (right) after the first day of his trial on Monday.

A woman’s credibility and reputation is as much on trial in sexual assault cases as the defendant’s. No lawyer asks a car owner why he parked his car on a dark street. No lawyer queries a home owner about the strength of his deadbolts. There is no back and forth in the courtroom about whether an assault victim drank too much and consented to the attack. However, that’s not the case in sexual assault crimes.

In sexual assault cases, it is not abnormal for the defence lawyers to play into society’s beliefs of those stereotypes and to engage in “whack a complainant’ strategies. This phrase entered the lexicon following a “how to’ session at a professional continuing-education workshop for lawyers that outlined how to wear down sexual assault complainants. According to University of Windsor law professor David Tanovich, lawyers in the session were told to “whack the complainant hard at the preliminary inquiry… and you’ve got to attack the complainant with all you’ve got so that he or she will say, ‘I’m not coming back in front of 12 good citizens to repeat this bullshit story that I’ve just told the judge.’ “

Well-known and prominent defence lawyers have used this technique. Defence lawyer Edward Greenspan, who died in 2014, made a reputation for himself by virulently attacking the credibility of women who made complaints of sexual assault and domestic violence. Henein articled under Greenspan who, according to Toronto Life, would describe her as “the toughest person in the office.’ He was her mentor. She worked alongside Greenspan in representing Gerald Regan and their work resulted in an acquittal for the former Nova Scotia premier on nine counts of sexual assault.

While Henein’s toughness and ability to whack a complainant may win her cases, there are many within the legal profession concerned about the ethics behind these tactics in sexual assault cases.

Tanovich is one. He suggests that sexual assault is “arguably the only offence where defence lawyers are socialized and taught by their peers and mentors that the client’s best defence is to have a lawyer who is prepared to act like Rambo.’

Frankly, those defence tactics have worked well. Sexual assault crimes remain under-reported because women are afraid that they won’t be believed by police and then are concerned about the treatment they’ll face in the courtroom. It is estimated that less than 10 per cent of all sexual assault cases are reported.

Once an assault is reported, attrition further whittles away at the numbers. According to Holly Johnson, a University of Ottawa criminologist, of the 15,200 sexual assaults actually reported to police, only 13,200 will be recorded as a crime, from there only 5,544 will result in charges, only 2,824 will be prosecuted and just 1,519 will be convicted. Sexual assault remains the most under-reported and under-prosecuted offence.

Tanovich suggests there are more ethical ways that lawyers can defend their clients without whacking the complainant and continuing the myths and stereotypes about sexual assault. He writes: “The fundamental question all defence counsel should ask is whether their conduct (e.g. cross-examination or submissions to the trier of fact) is grounded in stereotypes about sexual assault. If it is, it violates their ethical obligation to not discriminate.’

At its base is the need to ensure that women who complain about sexual violence are treated fairly in the court. Indeed, in one survey, women suggested they would be more likely to come forward and report sexual violence if they had a sense that they would receive justice.

Let’s hope Tanovich and his colleagues can work with their law societies in pushing for more ethical treatment of women in sexual assault trials. Maybe a little less whacking will become the norm. Maybe a bit more justice can be done.

Shannon Sampert is the Free Press perspectives and politics editor.

shannon.sampert@freepress.mb.ca

Twitter: @paulysigh

History

Updated on Thursday, February 4, 2016 10:12 AM CST: Adds live embed

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