Sexual assault is a crime that is defined at its core by sexual intimacy or sexual touching that is done without the consent of one of the parties. And so the line between what is permitted under the law and what is not permitted under the law is based on the presence or absence of consent. And so, if we add that in many cases the assaults take place in circumstances where there are no other witnesses the victims will be less likely to report an assault. So at first it’s the victim who questions themselves, who says "I am not sure that people will believe me" and unfortunately the victims are not wrong to have this point of view and this reflex to say "do I really want to denounce what happened to me when there are many things that could undermine my version of the facts?"
The Supreme Court has already said many times that Canadian law does not allow the use of stereotypes to judge people in cases of sexual assault, and we know very well that historically there was always a tendency to look for fault in the victim first because it was taken for granted that, generally, if there was a problem it was probably on the part of the woman. So you really had to be the – and we say this in quotes "perfect victim" – to get a conviction.
The perfect victim does a certain number of things that will then be compared to the behaviour of the other. This is the source of almost all stereotypes. So we know very well that this person does not exist. It is very clear. The way in which the law has evolved has been really to progressively eliminate these reasonings that are very easy, and even nowadays, there are many people who indulge in these reasonings even if they don't admit it directly. So when the Supreme Court says we should not engage in this kind of judgment to impose conditions or particular behaviors on victims of sexual assault, in reality the criminal justice system is adminstered by people and not all people are, unfortunately, able to integrate the legal rules or resist the intuitions that come to us by, among other things, socialization, but also because we know it is a reflex in the human condition to simply understand and rationalize events.
We have a justice system that is adversarial. An adversarial system of justice is organized in the following way: you have the Crown representing the state and essentially the community, with the duty to deliver justice. This does not mean getting a conviction necessarily, but to prove and explain to the court why the elements of the offence are established. It is the Crown that has the duty to prove beyond a reasonable doubt. The defence has a different duty, which is to defend the interests of the accused and to test what the Crown will present as evidence. But essentially it's the competition between the Crown and the defence that will bring out the truth. The victim in a sexual assault case, she will be a Crown witness, and the issue generally in the vast majority of cases will be the existence or absence of consent and the assessment of consent by the accused. According to the Supreme Court, the existence of consent on the part of the victim is established from the victim's subjective perspective. So what did she feel in her innermost being? In the context of sexual assault, the Crown must also seek for the victim to describe how she communicated her lack of consent, if she could, or to explain how she behaved. Once the Crown has established these elements, these statements are put into evidence, but they are tested by the defence. The defence will try to find holes or flaws, or elements that are not consistent in the testimony. Then, depending on the strategy of the defence, the accused will testify, and usually an accused who testifies at their trial, in their defence, does so to offer a completely different version than the victim. Or completely different on the most important point which is usually the absence or presence of consent. So what we see in this contest is that you have an opposition of versions. In our adversarial criminal law system, there is no equality between the Crown and the defence. There is an asymmetry, and this is deliberate. The accused benefits from any doubt and is therefore in a position where all they have to do is attack a little bit and enough reasonable doubt will be raised, and this doubt will benefit them. And in this context, the fact that we believe the victim is not necessarily decisive. So, generally, even given the fact that we believe the accused, there is something that will fall on the side of the evidence the crown.
So I think we have to be realistic. Our criminal law system is designed in a certain way. It is designed to put the burden on the state to prove the guilt of a person, and in this context we insist on a high burden and we give all the means of defence to the defence. I do not think that we can have a standard of proof other than proof beyond a reasonable doubt in criminal matters.
The question that arises, then, in relation to sexual assault and the ways of bringing it to justice is perhaps more promising if we consider procedures that are not criminal but in fact procedures that are civil or administrative, and then we could say, yes, we are talking about a different burden of proof. But of course the consequences would also be different. You can't deprive someone of their liberty if you don't respect the principles of fundamental justice in the criminal justice system.
A specialized court or procedure would offer the chance to put the victim more at the centre of what is happening and to make sure that the procedures that the court can undertake are informed by the research that has been done on how people react to trauma. In fact, there really needs to be a sensitivity or a reality built into the way the court operates about who the victims of sexual assault are and how they experience this process. We need to consider how to move forward as a society.