A survivor’s experience demonstrates that having strong laws is not enough and the failure to effectively implement good laws on sexual violence stifles the ability of survivors to access justice. This story was shared as part of the launch of Failure to Protect: How Discriminatory Sexual Violence Laws and Practices are Hurting Women, Girls, and Adolescents in the Americas.
In 2015, I reported a sexual assault to the Toronto police.
The detective investigating my case told me I had implied consent because I went willingly to the house of my attacker. But implied consent is not a legal defense to sexual assault in Canada. Two weeks later he sent an email to inform me that the man had been arrested. After that, I didn’t hear from anyone for months.
The Ontario courts have a Victim Witnesses Assistant program. But they do little more than call to let you know the court dates. Sometimes they even forget to do that. You are discouraged from sharing any information with the Victim Witness worker because they are required to disclose any information to the Crown*, who is required to pass it onto the lawyer representing the accused.
The trial was scheduled to be three days but ended up taking months. I spent four days being questioned in court, the dates were spread out and there were constant delays. It was really hard to plan things and manage my own wellbeing. I would arrange my support and organize time off work and my studies. Then I’d get a call out of the blue telling me the court date was canceled.
Before the trial, I had a naïve belief that because the rape shield provision existed, they would respect this within the courtroom. In Canada, there are laws to protect your private records and prevent questions about your sexual history during cross-examination. But the defense lawyer
can apply to retrieve information.
The defense lawyer applied to access my therapy records and requested permission from the court to cross-examine me on my sexual preferences. The court rejected both requests but that didn’t stop his lawyer from grilling me. She would ask stupid, really gross, and irrelevant questions.
Again and again, I had to repeat mundane details about the assault and what I did after I reported to the police. It felt like a never-ending ordeal and it was such a traumatic experience.
She said that having sex with me was like having sex with a dead fish. She
read my phone number out in open court.
Meanwhile, my attacker was cross-examined for just one hour.
The laws are only as good as the judge and lawyers that understand them. There is a problem of a lack of understanding about how rape myths enter the court. If you are a victim and the rape shield provisions are being violated, if the judge doesn’t say anything and the lawyers aren’t interjecting, where do you go? You have no recourse.
I waived my right to anonymity because I didn’t feel I could be silent about what was happening in the courtroom. The media wrote really cruel things about me and I was framed as this powerful feminist. I encountered a lot of rape myths. I’d had a sexual relationship with my attacker and we were casually dating. The assumption was yes once means yes to all.
It took six months to get the verdict and he was convicted. But the judge wrote a decision that was really incoherent, poorly written, and easy to appeal. I was really mad at him. He should have stuck to the law and relied on the facts of the case. Instead, he wrote 165 pages citing feminist text, none of which the lawyers had brought in.
The defense lawyers lodged an appeal arguing the judge had a feminist bias. The conviction was overturned and they ordered a retrial. I was really angry and frustrated. After everything that had happened, to be told I had to go through an appeal and possibly another trial. I said no.
* In this case, a government lawyer for the prosecution
