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Digital Subscriptions > Quill & Quire > March 2018 > law and order

law and order

Elaine Craig examines critical deficiencies in the way Canada’s legal system addresses sexual assault trials

Putting Trials on Trial: Sexual Assault and the Failure of the Legal Profession Elaine Craig McGill-Queen’s University Press

SexuaL assauLt victims contemplate the legal system with foreboding, their instincts for self-preservation sharpened by the experience of sexual assault itself. The punishing crossexaminations of victims in sexual assault trials are well known. Progressive changes to the law, spearheaded by the feminist movement in the 1970s and ’80s, were expected to improve the court experience for women. Rape became sexual assault. Previous sexual experience was deemed inadmissible in cross-examining the complainant, unless the trial judge allowed it. The victim’s counselling records could not be used. Consent to sexual relations was defined as actual and ongoing consent (“No Means No”). Consent could not be implied.

It is clear from Dalhousie University law professor Elaine Craig’s new book that, despite these enlightened laws, women’s selfpreservation instincts are right on the mark. With academic rigour, Craig provides a substantial analysis of the effect of a sexual assault trial on complainants. She identifies the ways in which the legal profession exacerbates the harm experienced by sexual assault complainants. Most victims, she argues, are treated with “gratuitous humiliation and denigration.”This occurs despite statutory rules of evidence, common laws prohibiting reliance on discriminatory stereotypes about sexual assault, and the Criminal Code itself. Craig also debunks the myth that women benefit from the law to the detriment of the male accused. She points to statistics that state only one per cent of sexual assaults result in criminal conviction.

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