Putting Trials On Trial: Sexual Assault And The Failure Of The Legal Profession
Author: Elaine Craig
Publisher: Montreal: McGill-Queen’s University Press, 2018. 320p.
Reviewer: Alice Woolley | October 2018
Does the legal profession inflict unnecessary harm on victims of sexual assault? In Putting Trials on Trial: Sexual Assault and the Failure of the Legal Profession,[1] Elaine Craig concludes that it does. She supports this conclusion through analysis of the available academic literature, detailed review of 20 post-2009 trial transcripts, interviews with 20 criminal lawyers, and consideration of other materials such as law firm websites and public comments by practicing lawyers. Based on these materials Craig identifies significant deficiencies in the conduct of defence lawyers, prosecutors and judges that, together, “(unnecessarily) contribute to the harms experienced by those who serve the legal system as complainants”.[2]
Putting Trials on Trial is an impressive and important contribution to the Canadian literature on legal ethics and sexual assault. Craig does not do what cannot be done—demonstrate the frequency of unlawful and unnecessary victimization of sexual assault complainants by actors in the criminal justice system. But she provides compelling evidence that such victimization happens, that we do not sufficiently acknowledge or recognize it and that, consequently, the legal profession contributes to the suffering of sexual assault complainants.
Craig’s research is meticulous and innovative, as well as being thoughtfully presented—she emphasizes the harm the evidence reveals, while never claiming it shows more than it does. In particular, through her use and presentation of trial transcripts, she makes the reader acutely aware of how hard we sometimes make being a sexual assault complainant, and how weak is the claim that such harms are a necessary by-product of the presumption of innocence. Indeed, Craig is unwavering in her insistence on the importance of the constitutional rights of the accused in an adversarial criminal trial, the need for proof beyond a reasonable doubt and the presumption of innocence. Her argument is not against the accused’s right to a fair trial, but only against the use of trial procedure as a cover for the unlawful infliction of harm.
Indeed, Craig emphasizes throughout Putting Trials on Trial that Canadian law does not create the problems she identifies. The substantive law on sexual assault constrains the use of improper evidence and reliance on myths about women and sex that had previously corrupted our ability to reach fair and accurate results in sexual assault cases. Further, the law of evidence and rules of professional conduct prohibit lawyers abusing witnesses or introducing irrelevant evidence. Craig focuses on demonstrating that lawyers and judges act unlawfully, and her prescriptions focus on ways to encourage lawyers and judges to do what the law currently requires.
With respect to defence lawyers, Craig observes several types of legally dubious conduct engaged in by those lawyers, specifically, the use of a complainant’s sexual history in cross-examination without bringing an application to do so pursuant to the Criminal Code, cross-examination which relies on rape myths and stereotypes, and cross-examination which explores irrelevant questions or is hectoring, abusive and improper. Craig documents this conduct through academic literature such as David Tanovich’s identification of 20 reported decisions in 2015 where a trial judge noted an “aggressive attack on the complainant”[3]. Craig also provides detailed examples of improper conduct from trial transcripts. As well, Craig documents the claims by defence lawyers on their own websites to have engaged in improper conduct in their representation of clients. Many of the cases that Craig discusses are upsetting. She properly requires the reader to see and feel just how humiliating and unnecessary it is for a complainant to be cross-examined on how long it took the complainant to have a bowel movement after an anal rape[4] or for another complainant in an anal rape case to be cross-examined about whether the complainant’s nickname was “Perky Tits”.[5]
In making these observations Craig rebuts current narratives that might otherwise obscure the fact that this sort of behaviour occurs. Specifically, she demonstrates the fallacy of those who argue that feminists control the law, with the result that sexual assault trials have “crashed through previously inviolable principles of criminal justice designed to protect the innocent”.[6] To the contrary, as Craig notes after reviewing defence lawyer websites:
If these are the types of questions, comments, and strategies that occur in a legal culture supposedly inhibited by political correctness and a feminist-inspired, disproportionate concern for the complainant, it is alarming to consider what would be said and done in the absence of those perceived norms of constraint.[7]
Craig also refutes the claim by lawyers that improper attacks on complainants do not occur, because “whacking the complainant is not good lawyering and…experienced criminal lawyers know better than to pursue this strategy”.[8] Many of the lawyers whose problematic conduct Craig discusses are senior and well-respected members of the bar. Craig shows that it is simply incorrect to suggest that such lawyers do not engage in this sort of behaviour.
Through her interviews with lawyers, Craig demonstrates that these sorts of strategies are also inconsistent with how criminal defence lawyers describe their professional identities. In the interviews, defence lawyers consistently emphasized the importance of the rule of law and the protection of human dignity (the “right of their client to tell his story”) as “central to their understanding of their role as a criminal defender”.[9] Yet relying on irrelevant or inadmissible evidence in cross-examination, or bullying the complainant, neither advances the rule of law nor protects the accused’s dignitary interests. A proper application of defence lawyers’ own conception of their role rejects this kind of behaviour.
Craig argues that reforming the practices of criminal defence lawyers requires first that they recognize that this behaviour occurs and that it inflicts unnecessary harm on complainants. It also requires lawyers to recognize that the conduct is unethical and improper, and for law societies to treat it as such. And, finally, it requires a “more nuanced and balanced articulation of the professional virtues of those who practice criminal defence law”,[10] one which does not valorize “lawyers as pit bulls”.[11]
Criminal defence lawyers have the greatest capacity to inflict harm on a sexual assault complainant by virtue of their responsibility to challenge the Crown’s case through cross-examination. Craig observes, however, that other legal actors in sexual assault trials, and in particular prosecutors and trial judges, also bear some responsibility for the unnecessary harm to complainants.
Prosecutors have a duty to “ensure to the best of their abilities, a fair process for the accused, the complainant, and the public”.[12] Those duties require them to object to “unnecessarily aggressive or humiliating questioning” of a complainant by a defence lawyer, to prevent the fact-finding process from being distorted by the introduction of rape myths,[13] and to ensure that a complainant is properly prepared to testify.[14] Craig documents cases in which prosecutors have not discharged those obligations. In particular, she identifies examples of prosecutors not objecting despite defence lawyers persistently asking improper questions or introducing improper evidence.[15]
Craig emphasizes that prosecutors must make such objections. They must also be careful to avoid introducing evidence about a complainant’s sexual history that could enable a defence lawyer to cross-examine a complainant about that history.[16] She also argues that prosecutors must properly prepare complainants for trial, commending the guidelines for such preparation developed by the Public Prosecution Service of Nova Scotia.[17] She further recommends that prosecutor offices develop “comprehensive Crown policy on sexual assault” to guide prosecutors in how they conduct these difficult cases.[18]
Craig suggests that the sorts of obligations owed by prosecutors are also owed, at least in part, by judges. Judges also have duties to protect sexual assault complainants and to “intervene in cross-examinations that are unduly repetitive, insulting, or unlawful”.[19] Craig recognizes that judges must be sure that their interventions in the trial process do not undermine the ability of an accused to receive a fair trial, but that “[j]udicial interventions to reduce repetitive, abusive, or discriminatory cross-examinations do not compromise trial fairness”.[20] She documents cases in which judges have failed to intervene but also, and importantly, cases where judges have made harmful and egregious errors about the definition of consent, errors which reflect “reliance on discriminatory stereotypes about sexual assault that hold women responsible for their own sexual victimization”.[21] Craig recommends that judges be willing to intervene where appropriate to prevent unnecessary harm to complainants and that appellate courts recognize such interventions as appropriate. She further recommends that judges and courts take steps where they can to humanize the courtroom (e.g., by allowing the witness to sit) and that judges receive mandatory education on the law of sexual assault including peer assessment “to ensure some minimum threshold of substantive legal knowledge”.[22]
Craig’s observations of the deficiencies in the conduct of lawyers and judges, and her recommendations for reform, seem hard to dispute. Her claims are so modest—this behaviour is unlawful, occurs enough to be concerning, and not enough is done to prevent it—one would be hard pressed to articulate any grounds to reject them. And her reforms are far from radical; they leave the law intact, asking only that lawyers and institutions work harder and better to make the law mean what it says it means.
There are two choices that Craig makes in the book that do merit some further comment. As the summary here should make clear, Craig relies significantly on the protection Canadian law offers to complainants, and on the failure of the legal profession to make good on those protections. Craig touches at numerous points in the book on the public policy that underlies the law, but her argument is far more that the legal actors she discusses have acted unlawfully than that they have acted wrongfully. That emphasis may have been intended to make her argument easier for legal actors to accept, to confine her arguments to the hard to dispute claim that legal actors ought to respect the law. What worries me is that there remain people who do see the legal system as subject to matriarchal justice, who do not accept the public policy choices that the law has made. There are those who see the risk of false rape allegations as material, the need to strongly challenge those allegations as imperative to the presumption of innocence, and the Criminal Code’s treatment of sexual history evidence as an overly broad restriction on the rights of the accused.[23] Craig was, I think, justified in restricting her case to the failure of legal actors to respect the law governing sexual assault; the law says what it does, and lawyers and judges have a clear obligation to respect that. Ultimately, however, those who accept Craig’s critique and recommendations will need to be prepared to make the deeper normative argument that the public good is advanced by protecting complainants as we currently do.
The second choice is Craig’s decision to name the legal actors whose conduct she discusses. She defends this decision on the basis that we ought not to talk about people only in terms of their roles or the institutions they serve; otherwise we risk reinforcing “an entrenched narrative about role-based morality”.[24] Further, she suggests that treating legal actors merely as anonymous occupiers of a role is wrong when contrasted to the “profoundly personal exposure”[25] experienced by sexual assault complainants. I find the first of these reasons unconvincing, and the second troubling. The first seems unconvincing because the larger point of Craig’s book is that the problems she identifies are systemic, they are a failure of the “legal profession”, and not merely bad choices by individuals. Naming the lawyers and judges who made bad decisions emphasizes those individuals and their poor choices, and risks diminishing the systemic claim that is the book’s most significant insight. The second argument troubles me because it seems to imply that part of the point here is to personally expose the lawyers who made these bad choices and, in some sense, to impose consequences on them for those choices. That was likely not Craig’s intention, but it is a natural inference from the parallelism she uses, and from the nature of the decision: lawyers are named and judged; and exposed to the judgment of others. And I worry that the result of exposing those lawyers and judges will be to alienate the audience Craig most wants and needs to reach, namely the legal actors who conduct and judge sexual assault trials. Ultimately, however, I trust that honest and thoughtful readers of the book will not be distracted by this choice, especially given Craig’s acknowledgement and explanation for it; one can disagree with her decision, but she has clearly made it honestly and in good faith.
At the end of the day, Craig’s book accomplishes what it sets out to do, and what it sets out to do is important: to push legal actors to be honest about the extent to which we inflict unnecessary harm on sexual assault complainants, and to encourage lawyers and judges to do what we can to prevent that harm. All she asks of us is that we look at the evidence honestly and fairly, and draw from it the obvious conclusion; as legal professionals that should surely be within our grasp.
Alice Woolley, Esq., University of Calgary
[1] Elaine Craig, Putting Trials on Trial: Sexual Assault and the Failure of the Legal Profession (Montreal: McGill-Queen’s University Press 2018) at 23 (“Putting Trials on Trial”).
[2] Ibid. at 23
[3] Putting Trials on Trial at 58.
[4] Putting Trials on Trial at 31
[5] ibid. at 48.
[6] Ibid. at 25, quoting a Toronto defence lawyer.
[7] Ibid. at 56.
[8] Ibid. at 60.
[9] Putting Trials on Trial at 112.
[10] Ibid. at 125
[11] Ibid. at 127.
[12] Ibid. at 135.
[13] Ibid. at 140.
[14] Ibid. at 139.
[15] Ibid. at 141-142.
[16] Ibid. at 146.
[17] Ibid. at 159-160
[18] Ibid. at 164.
[19] Ibid. at 167.
[20] Ibid. at 180.
[21] Ibid. at 192.
[22] Ibid. at 214-215.
[23] That this is the case is unfortunately obvious to anyone who spends time on Twitter.
[24] Ibid. at 15.
[25] Ibid. at 15-16.
