Who’s on Trial?: Cross Examination in Sexual Assault Cases

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by Maggie Rahr

A debate about ethical cross examination in sexual assault cases is escalating in Canada’s legal circles, and on social media, as the trial against Jian Ghomeshi unfolds. In a commentary published in the Star, criminal lawyer, Breese Davies attempts to de-bunk what she calls a ‘pernicious myth’, that “as a matter of strategy, (the defence will) bully, abuse or attack complainants during cross-examination.”

The woefully named ‘whacking’ is a colloquial term used to describe what Davies maintains is a problem that rarely arises in the courtroom.

But many, following one of the most high profile trials in recent Canadian history, tweet by tweet, and through more traditional news media, will disagree with her.

“I’m absolutely demoralized.” says Lenore Lukasik-Foss, Chair of the Ontario Coalition of Rape Crisis Centres. Statistics are so low, when it comes to sexual assault victims reporting to police (even fewer see an actual courtroom) that it’s a rarity Lukasik-Foss and her colleagues have to shepherd a victim through public legal appearances. Watching the Ghomeshi trial unfold, she says, it’s not hard to understand why so few victims come forward.

“It reads to me that it’s grinding down the witnesses, trying to trip them up. Of course we want justice… but how is this justice?”

Unfortunately, it’s not uncommon, as Lukasik-Foss points out, if bullying a witness on the stand was truly a rarity, there wouldn’t be a word for it.

“The only tool they have is to attack credibility.” she says, and often, that means painting the witness as a liar.

To date, defence counsel for Ghmoeshi, Marie Henein has cross examined two witnesses, the identity of the first is protected under a publication ban, and the second is actress Lucy DeCoutere. The consensus among Canadian media seems clear, with various news outlets describing the questioning as ‘ruthless’, ‘intense’ and even, a ‘bloodbath’.

In her commentary, Davies’ says “Canada’s sexual assault laws may not be perfect but they aren’t broken either.”

Lukasik-Foss couldn’t disagree more, “The system is broken,” she says, adding that if it weren’t, survivors would be engaging in it at least more than 10 percent of the time.

Toronto media outlets are now fighting to have the courts release a photo of the first complainant in a bikini, an image she sent in an email to Ghomeshi, that was brought forward as evidence by defence counsel Henein.

“How is that relevant even remotely?” Lukasik-Foss asks, who has many suggestions for improving the way sexual assault cases are tried in Canada.

Firstly, she says judges need enhanced training, “So they are interrupting (defence counsel) when it becomes whacking, when the relevancy starts to stray.”

Secondly, she says the science behind neurobiology, fear, trauma and memory in victims of sexual assault has been strongly studied in Canada, but isn’t reflected in the justice system, especially in the courtroom. “Memory is not linear, ” she says, pointing to the style of cross examination employed in these cases, “and then we pounce on them like they’re lying.”

Lukasik-Foss believes lawyers for both prosecution and defence need to be educated, along with judges, about how victims of trauma experience memory differently.

And finally, Lukasik-Foss makes a suggestion that’s been made by victims’ advocates before, but still hasn’t stuck: Provide victims with independent, legal counsel, paid provincially.

As the trial unfolds, there is one glimmer of hope for Lukasik-Foss: that this conversation, is finally becoming prominent, nationally. And she has a message for survivors, who may be following Ghomeshi’s trial:

“You are not alone.”

Maggie Rahr is a freelance reporter in Halifax, Nova Scotia

 

 

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