The Brutality of the Sexual Assault Trial

Written by guest blogger, Elaine Craig, Dalhousie University

The media coverage and countless stories that have been told by survivors of sexualized violence in the lead up to, throughout, and following the Jian Ghomeshi trial have shone a spotlight on the brutality of the courtroom process for sexual assault survivors. The harm experienced by sexual assault complainants who participate in, or are forced to participate in, the criminal trial process is undeniable.  This is true regardless of the verdict or whether they are ‘believed’.

Approximately one in ten people who have been sexually assaulted turn to the legal system to respond to their experience of sexual harm.  Given how inhumane the trial process can be for sexual assault complainants, it is surprising that the number is that high.  Despite very progressive law reform to the rules of evidence and the definition of consent to sexual touching, fear of the criminal justice system remains one of the most common reasons given for not reporting a sexual assault to the police.

Sexual assault complainants who do testify find themselves forced to relive their experiences in a very particular way in front of a judge, lawyers, the media, and the general public.  They are forced to not only comply with, but to perform, particular rituals of the trial.  Failure to perform these rituals – to comport oneself with the appropriate degree of civility regardless of the degree of self-subjugation this demands, to follow the script of cross-examination, to recount the ‘right details’ while expressing the ‘correct emotions’ and the ‘correct amount of emotion’ – is to be disbelieved.  Courtroom tradition, formality, ceremony and the separation between ‘the professionals’ and ‘the laity’ instantiate profound power differentials that mirror the very gendered, racialized and class based hierarchies that produce sexual violence as a prolific social harm.  Even the structure and aesthetic of the courtroom itself can reflect a hierarchy which reifies the shame that is often experienced by those who are subjected to gendered and sexualized harms.

The new University of Toronto Law Journal article, “The Inhospitable Court” reflects an attempt to depict, through the use of trial transcripts, the brutality of the process faced by sexual assault complainants.  It exposes the institutionalized practices – the design, traditions, and script of the sexual assault trial – that contribute to the inhospitable conditions faced by those who testify against the men that have sexually assaulted them. Trial transcripts from three recent cases are used.  Arguably, the trauma of a sexual assault trial is much better evidenced by the transcript than by what is written about the case by a judge.  The power dynamics between the various parties, the humiliating exposure of the personal, and the overall cruelty of the process emerge clearly from the transcript’s account of the words spoken, the questions asked and answered, and the emotions recorded.

The article describes the profound power differentials that occur and the threat to self that the trial process poses for complainants.  It also offers some suggestions for how lawyers, judges, and legislators could make that experience less traumatic for those who turn to the criminal justice system to respond to the sexual harms that they have endured.

Elaine Craig’s “The Inhospitable Court” is now available at University of Toronto Law Journal Ahead of Print  Click Here to Read