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We know false claims are the anomaly (two to eight per cent, according to FBI studies). Conviction rates have not risen a whit: according to the 2012 study “Sexual Assault in Canadian Law” they stand at 0.3 per cent. Consider the defence lawyer slang for questioning those who dare come forward: “whacking.” It may seem inflammatory to suggest women are worse off now compared to a time when marital rape had just been labelled a crime.
Changes to the Criminal Code were intended to improve how courts treated complainants, almost always women, and to broaden understanding of sexual assault.
“But will you have more success [as a complainant]? And that’s the problem.” Sexual assault remains the most unreported (only eight per cent reported in 2004, according to Statistics Canada’s crime victimization survey, which interviews women anonymously) and underprosecuted of offences.
Lawyers regularly discuss whether they’d advise a loved one to report a sexual assault, says Butt.
That sends a signal too, says Hnatiw: “For a lot of women, coming forward and laying charges is about regaining control over a horrific event in their lives.
Yet those working within the system note changes unanticipated when laws were rewritten decades ago—like cellphones and social media—which render rape shields porous and that breach complainant privacy in new ways.
Twenty years ago, complainants protected by publication bans weren’t at risk of online bullying and harassment.
They claimed a cellphone video taken by one of the boys showed the woman “smiling” and “laughing.” Then the capper: they reported the woman had been drinking alcohol with her father and made the outrageous claim the pair were having sex, a charge denied by the father.
(The woman has not spoken.) The media had a field day impugning the woman. “We need to focus on those five individuals who committed this heinous crime and what were the bad decisions they made all throughout the day,” Cumbo said. What would click in someone’s mind to think that something like that was okay? “There’s far too much scrutiny of the victim in sexual assault cases,” Toronto lawyer Susan Chapman says.And there was no risk of defence lawyers combing through Instagram and Tinder to seek out incriminating pics or posts to create reasonable doubt.