Electronic Thesis and Dissertation Repository

Thesis Format

Integrated Article

Degree

Doctor of Philosophy

Program

Law

Supervisor

Randall, Melanie

2nd Supervisor

Botterell, Andrew

Abstract

Very few survivors of sexual violence choose to engage the Canadian criminal justice system despite the fact that we expect law to be an effective tool to combat sexual violence. Since the vast majority of sexual violence survivors are female, the criminal justice system is failing women. This failure is largely because of the harm it causes by re-victimizing sexual assault complainants. Much of that harm arises from misunderstandings about trauma and from the existence of rape myths and gender stereotypes.. I argue that the criminal justice system’s treatment of female sexual violence complainants violates their section 7 and 15 Charter rights, and represents gender discrimination under the Canadian Human Rights Act. I further propose that one key remedy to remediate this harmful and discriminatory treatment is to provide state-funded trauma-informed legal representation for sexual violence complainants throughout their engagement with the criminal justice system.

I present my thesis in an integrated article format using three articles, and apply a doctrinal analysis to primary and secondary sources of law, jurisprudence, articles, and research. The analysis also draws on my many years of experience as a former Crown prosecutor, and as a lawyer currently in private practice, working directly with sexual assault victim-survivors.

The first article lays out my proposed model for legal representation for sexual violence survivors and reviews other international systems of victim representation. In the second, I argue the merits of a Charter challenge on behalf of sexual violence complainants, relying on Supreme Court jurisprudence to demonstrate that current practices and omissions in government policy result in adverse impact and systemic discrimination against sexual violence complainants. The third article provides an analysis of the policies that underpin the treatment of female sexual violence complainants, this time using the lens of the Canadian Human Rights Act, demonstrating that these inadequacies perpetuate systemic discrimination against women. All three articles conclude that an effective remedy for this discriminatory treatment is the provision of state-funded trauma-informed legal counsel to complainants of sexual violence to protect their rights and to better facilitate equal access to justice.

Summary for Lay Audience

Very few survivors of sexual violence (about 5%) report to the police. This is disturbing statistic because it means that about 95% of offenders bear no legal consequences for their actions. Since the majority of victims of sexual violence are female (about 87%), this means that women are provided very little legal protection from sexual violence. To add to that concern, women who do report to the police often experience revictimization from going through the criminal justice system. Much of the harm women experience by the criminal process arises from rape myths and stereotypes about how women are expected to behave, particularly when they are sexually violated, and from misunderstandings about the impacts of trauma. No one should have to be harmed in order to get access to justice.

To help address these problems, I propose that government funded trauma-informed legal representation for victims of sexual violence is necessary to address the violations to women’s equality, security and right to be free from discrimination. In the first of three articles that comprise my thesis, the benefits of my proposed model of legal representation are described and international systems of victim representation are reviewed, along with studies that demonstrate their value. In the second article I argue that the lack of government policies to protect women from harm when they come forward as sexual violence complainants in the criminal justice system violates their rights to equal protection of the law and security of the person guaranteed under the Charter of Rights and Freedoms to equal protection of the law and security of the person. In the third article I argue that their poor treatment of sexual violence victims during the criminal process is gender discriminatory under the Canadian Human Rights Act. In all three articles I conclude that my proposed model for legal representation for those who report sexual violence would be effective in reducing discrimination against women and helping to protect their rights to security and equal access to justice.

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