That’s the question being asked in Canada where in the backdraft of a high number of unreported cases and a relatively low number of convictions, sexual assault cases are under increasing scrutiny. Experts are calling for changes to the way the legal system handles sexual assault trials, do we need to ask the same question in the UK?
The media on a daily basis is reporting on sex abuse issues, investigations, and court proceedings. According to Alan Collins a partner at Hugh James solicitors who specialises in representing victims of sexual abuse “The question should be asked, and the survivors who have been through the legal process should be asked to comment on their own individual experiences before conclusion should be drawn. Many of those who pursue civil claims tell me that the process is cathartic whereas those who have sought justice through the criminal courts have felt the attention was on the offender”.
The Canadian legal system is in many ways very similar to that in England and Wales, and so Alan says it makes sense to consider very carefully the debate that is taking place.
According to CBC news two-thirds of female sexual-assault victims who responded to a detailed survey said they lacked confidence in the [Canadian] criminal justice system — pointing to a need for better support services, says a new federal study.
The newly released study provides insight into the experiences and needs of victims amid heightened concern about whether enough is being done to encourage them to come forward. The most common reasons for not reporting were shame and embarrassment, fear of the offender and lack of confidence in the justice system.
Participants cited ongoing, long-term effects of being attacked, including depression, difficulties with trust and forming relationships, and anxiety, fear and stress.
“The trauma is — I mean, it’s absolutely unbearable,” one victim told the researchers.
The women described a number of means of coping with effects of the trauma, both positive (such as reading, exercising, writing in a journal) and negative (drug and alcohol abuse, self-harm, suicide attempts).
The women suggested that survivors of sexual violence become informed about the criminal justice system, and know that help is available for victims and that legal proceedings can take a long time. The best way of sharing this information is through school programs and counsellors, they said.
Three broad themes emerged on making improvements — helping survivors feel safe and comfortable, providing them with information on sexual violence and justice procedures, and adjusting the overall system to ensure things like more timely processing of cases and a better balancing of how victim and suspect are treated.
Many victims of sexual abuse this side of the Atlantic are in all likelihood will have similar concerns.
The research has prompted some profound questioning of the current legal process and had led to call for reform.
Several experts agree the existing Canadian system is flawed at best, for both the complainants and the accused.
Both sides – prosecution and defence have their reputations, memories and actions scrutinized. Many who go through a sexual assault trial say the act of testifying is traumatizing. Alan points out that it must not be overlooked though that for some victims going to into the witness box and giving evidence is very important personally and this should not be underestimated. It is, he says, very “powerful for a victim to testify and to be believed. Nevertheless it can be tough, and victims do complain that it felt as though they who were on trial rather than the abuser”.
There is the argument that the legal system is inherently unable to handle these often very emotive and difficult cases. Alan is of the opinion that ”the legal system in the UK has evolved considerably in recent years, but it would be complacent to conclude that all is well, because his opinion is that offending is on the rise, more crimes are being reported, and victims are entitled to expect the justice system to work. Therefore now is a good time to take note of the Canadian debate, and start to question how our legal system works?”
Among the suggested proposals for reform are:
Separate, specialized courts, similar to courts that already exist in Ontario for mental-health cases, drug-related cases and for domestic violence. In the same way as we have in England and Wales employment tribunals and family courts. This could include giving complainants in sexual assault cases access to free legal advice, and giving extensive training to everyone involved, from first responders to judges. Alan asks “Would this really make any difference or is it just reinventing the wheel?”
Restorative justice, which one researcher described as “a community-supported process whereby survivors are able to outline their needs and also perpetrators are pushed by communities to take accountability in alignment with survivors’ needs, but also in alignment with working to change their beliefs.” Alan asks “What would this mean in practice? The abuser would have to admit his/her abuse for this to work. Maybe that would satisfy the victim, but would society be so accepting? Society might say that the abuser has to go before the criminal court to be punished and to be seen to be punished”.
Another alternative could be civil court, where both parties are required to give evidence and be cross-examined. Which survivors in England and Wales are able to do and are doing so to obtain redress from their abuser of those responsible for the sexual abuse.
In conclusion Alan’s opinion is “That is right to ask the question, and to examine the legal system. I am not sure that the Canadians have the answers, but at least they are having the discussion. We should find out what survivors have to say, and learn from their experiences. If we do that then we can improve on what we have. We want to reduce offending, and serve survivors better. That must be our goal”.