Column

Defending Rapists

Lawyers who defend people accused of sexual assault tend to be subject to one of two narratives in popular conversations, particularly on social media:

The critical narrative: Sexual assault is a violent and under reported crime. Our criminal justice system further victimizes complainants by treating their claims with unwarranted skepticism, and by degrading them both during the investigation of the crime and during the trial of the accused. Lawyers who represent an accused in sexual assault cases engage in morally suspect conduct, except in those (rare) cases where the accused is factually innocent. They directly participate in the victimization of complainants through cross-examination and the arguments they make in court.

The defending narrative: Everyone is entitled to the presumption of innocence. A lawyer who represents a criminal accused ensures the presumption of innocence is a reality, and that lawyer is entitled to be a zealous advocate on behalf of his or her client. Zeal requires doing whatever it takes to secure an acquittal, and the consequences of that for complainants are irrelevant, especially since many accused are innocent.

While these descriptions reflect extreme versions of each, they capture I think the essence of the two narratives. And they also reflect what I have observed in public reactions and commentary on the Ghomeshi trial and judgment, and to Marie Henein’s defence of him, particularly on social media. The critical narrative focuses on the belief that Ghomeshi was factually guilty – the belief that he did in fact commit the physical and mental elements of the offences with which he was charged – and on the pain suffered by the complainants from the original events, through having to testify and be cross-examined, and the judgment that criticized them. The critical narrative sees Henein’s conduct through the lens of the pain felt by the complainants, and holds her responsible for her part in it inflicting it.

The defending narrative focuses on the presumption of innocence. Whether or not Ghomeshi committed the offences, he was entitled to have them proved in Court before being convicted. And in any event, he was acquitted. Henein’s cross-examination was firm but fair, and it resulted in the complainants being shown to be inconsistent at best, and dishonest at worst. The defending narrative sees Henein’s conduct through the lens of her protection of the rule of law, and the constitutional rights of her client. The emphasis is on Ghomeshi’s acquittal; the experiences of the complainants are irrelevant or warranted.

Both of these narratives are deeply problematic, even if I agree with the defending narrative on the proposition that Henein’s conduct of the Ghomeshi trial was ethical and appropriate. In particular, while they each rely on solid premises (the presumption of innocence; the re-victimization of sexual assault complainants), they undermine important and complex conversations about defending a criminal accused in a sexual assault trial, and in particular defending a factually guilty person accused of sexual assault.

The problem with the defending narrative is two-fold. First, it ignores the real and significant cost that the presumption of innocence inflicts on complainants in sexual assault trials, particularly with a factually guilty accused. The presumption of innocence does matter – it is crucial and cannot be sacrificed – but we also cannot ignore the cost that it imposes. A sexual assault trial is like if we cured cancer in one person by giving chemotherapy to another. That cure could be justified if it was the only way to effect it and the chemo-receiver consented, but no one should ignore the reality that one person is suffering harm in order to protect something of value to someone else. And, in the case of a factually guilty person accused of sexual assault, the complainant is being asked to suffer harm to protect something of value to the person who assaulted her. However justified and “right”, there is something grotesque about that reality.

Second, and importantly, the defending narrative discourages important conversations about the boundaries of appropriate and inappropriate defence conduct in a sexual assault trial. Yes, the presumption of innocence is crucial, and an accused person is entitled to a vigorous defence. But an accused person is not entitled to a boundless defence; the lawyer’s duty is one of zealous advocacy within the bounds of legality, not zeal unbounded. Most significantly, cross-examination is ethically limited by the requirement that it not be abusive or degrading, and that it substantively respects the rules of ethics and evidence: questions must have a good faith basis, and must explore matters that are relevant and admissible. Further, where a defence lawyer has knowledge of a client’s factual guilt (actual knowledge, not merely a suspicion) there are limits on the defence the lawyer can bring. In essence, a lawyer cannot mislead the court, and knowledge of guilt makes certain arguments and testimony misleading. The lawyer cannot suggest an alibi or mistaken identity in the face of knowledge of the client’s factual guilt.

The critical narrative also has two problems, and they are the flip-side of the two problems with the defending narrative. Just as the defending narrative ignores the cost to the complainants of a criminal trial, the critical narrative ignores the perspective of the accused. It does not recognize the importance of giving the accused an opportunity to be heard, to test the case made against him, and to ensure that his perspective is taken into account before he is punished. Even if an accused is factually guilty, that does not mean that he has no point of view for the system to take into account (as I discussed here). Further, the critical narrative treats all defence lawyer conduct as the same – viewing any cross-examination or assertion of innocence, regardless of how it is made or its respect for the boundaries of legality, as a wrongful infliction of injury on a victim. If the defending narrative risks leaving defence lawyers unconstrained, the critical narrative risks making the most careful and respectful defence lawyer seem like a wrongdoer.

Sexual assault trials pose a truly significant ethical challenge for our criminal justice system. Sexual assaults regularly occur without witnesses. Consent is often the central issue. As a result, proving a sexual assault frequently depends on the testimony of the complainant. Further, acquitting the accused can – even if that acquittal turns on the burden of proof – be construed as a finding that the complainant is a liar, is guilty in some way. Protecting the accused’s presumption of innocence will almost always inflict harm on a complainant and, when the accused is factually guilty, it will be a harm added to the one the complainant has already suffered. The complainant suffers to protect the constitutional rights of an accused, and often an accused who assaulted her.

That trade-off is one that I think our system has to make in order to ensure the rule of law – that the state only punishes people who have been shown beyond a reasonable doubt to deserve it. But we cannot ignore the price that is paid for that outcome, and we have to be as careful as we can to ensure that that price is no greater than it has to be.

Which means that we have to be incredibly clear and careful about articulating and enforcing the ethical boundaries on defence lawyers in sexual assault cases. Both Elaine Craig and David Tanovich have done important work in this area. But more needs to be done to translate that work into practice, to better ensure that complainants suffer only that harm which the presumption of innocence requires. There are also difficult questions that have not yet been fully explored – the limits on representing a client who you know to be guilty are complicated to apply in many cases, but may be even more so in a sexual assault trial; do they preclude a lawyer from seeking permission to explore a complainant’s past sexual history? Do they impose more stringent limits on a lawyer’s ability to invoke rape myths (assuming doing so is ever acceptable)? These are difficult questions, and require thoughtful and nuanced consideration beyond what they have so far received.

All participants in the system need to be clear about the where the boundaries are when defending sexual assault cases. Prosecutors need to object to improper questions and arguments by defence counsel. Judges need to sustain those objections. Defence lawyers need to refrain from asking improper questions or making improper arguments in the first place. And appeal courts need to condemn conduct by any participant in the justice system – lawyers or trial judges – that fail to respect or uphold those boundaries.

Comments

  1. For the ethical context of the criminal defence lawyer, see Professor Allan C. Hutchinson’s recently published book: “Fighting Fair—Legal Ethics for an Adversarial Age” (Cambridge University Press, 2015), and my book review, (Slaw, January 1, 2016). Professor Hutchinson is on the staff of Osgoode Hall Law School, York University, Toronto.

  2. It seems to me that what you are actually objecting to is not the excesses of defence counsel, but the constraints on the Crown.

    I am far from being an expert on the role of Crown, but I do understand two things: first, the public is paying for the legal representation of the complainant, and second, the role of Crown is limited to seeking truth, not advocacy.

    All that being the case, what you seem to be wanting is for the complainant to also enjoy full advocacy. Surely that’s a reasonably simple proposition: she simply has to pay for it.

    And given how easy it is to make false accusations of sexual assault, that seems like a fairer and more ethical direction to go to protect the presumption of innocence than to hamstring the defence on a bunch of nebulous and subjective grounds.

    Perhaps the whole problem with the situation is not that it is too adversarial, but rather that it is insufficiently so. The complainant is insulated from both costs and consequences, while the accused faces both.

    The answer to your dilemma is not to add yet another bandaid to the claimant, but to rip one off to level the playing field. This would solve your problem and the problem of false accusations in one fell swoop.

    Handing another layer of protection to a female claimant also reverses all the gains women have made toward equal opportunity. Equal opportunity comes with equal risks and equal responsibility.

    The parts I liked best about Judge Camp’s conduct of the Wagar trial were the ones where he overcame stereotypical thinking, for example where he asserted that drunk women should be as responsible for their behaviour as drunk men. But responsible, period, is a good start, and if a woman who brings false accusations at public expense is not vulnerable to being held responsible for that, that is the inequity in the system that needs to be fixed first.

    Actually, there are three levels of protection that the claimant now enjoys: not just the two pertaining to court, but at the level of police. Just how are so many false or marginal accusations getting past the police filter? Are there perhaps too many prohibitions on what the police can ask? If the women faced the harsher questions there, in private, rather than in open court where Woolley feels it is so traumatic, everyone including the public purse and the administration of justice would be better off. Again, I see the problem as being not one of too little protection, but of too much. And a note: thorough and rigorous questioning does not have to be insensitive.

    It seems fairly clear from Ken’s review that the overriding ethical duty of lawyers “to promote the reputation of the justice system and the legal profession” is best served by an unfettered capacity of the defence to cross-examine. That is only going to be traumatic for the claimant if the police and Crown have failed to filter out false claims.

    Canadian women now have the right to serve in active combat roles in the military. If we can do that to serve the national interest, then we can also face rigorous questioning to ensure that the justice system is not being used to convict innocent men at public expense.

  3. Alice,

    As usual, a very thoughtful post.

    I’m not sure I would say that the defending narrative ignores the cost to victims of sexual assault, rather it takes as given that the benefits of the presumption of innocence outweighs the combined social cost associated with it.

    The presumption of innocence imposes a number of costs on society (and, of course, has a number of benefits, of which not imprisoning the factually innocent is only one). The cost to the victim of having, as a practical matter in sexual assault cases, to testify against the accused is just one. Amongst others is the cost to witnesses in any case of having to testify, the costs to jurors of having to listen to attend trials (and the issue of juror trauma in particularly horrendous cases has been in the news recently), the costs arising from the increased likelihood of the non-conviction of the factually guilty (which the is the flip-side of the benefit of the reduced likelihood of convicting the factually innocent), the costs arising from increased trials (in a world without a presumption of innocence, presumably more accused would plead guilty rather than take their chances at trial – although I need to be careful, it could be that such a world there would be greater trial costs as crowns and police bring weaker cases to trial), etc.

    The defending narrative doesn’t expressly consider any of those costs because, from the perspective of its proponents, those costs have already been factored into society’s decision to enshrine the presumption of innocence into the legal system – that’s a decision that has already been made for them. And note, individuals in our society incur those costs not to protect the rights of the accused, but to protect their own rights, since the two are one and the same – today’s victim might be tomorrow’s accused.

    Nor is it fair, I think, to say that the defending narrative discourages discussions as to the legal and ethical constraints on how a lawyer can advance her client’s interest in a sexual assault trial – after all, the tension between advance your clients interests and your ethical and legal obligations is always a hot topic for lawyers in general and criminal lawyers in particular. Here, I’m afraid, your construction of the “defending narrative” is a bit of straw man. The defending narrative, at least as usually expressed, takes as given that the defense lawyer must comply with their legal and ethical obligation – I doubt, for example, that any proponent of the defending narrative, heck, any lawyer, would contest the various limits to one the proper conduct of one’s defense that you set out in your post. And in practice, the most articulate proponents of the defending narrative – Marie Henein would be a good example – are also the lawyers who could (and do) give master classes on how to vigorously cross-examine a witness in a sexual assault case in a manner consistent with their legal and ethical obligations.

    Indeed, part of what bothers me about the critical narrative is that its seems to have its own rape myths about the conduct of sexual assault trials (amongst other things). Here I’m struck by the contrast between the accounts of the prevalence of “whacking” and the judicial response to it (e.g. that it is common and the courts/crowns rarely intervene) and accounts that I hear from practicing crowns (e.g. that it is uncommon and, when it occurs, the court’s response vigorously and, further, that the court, crown and police are uncommonly solicitous to complainants in sexual assault cases – a claim that the Ghomeshi cases seems to confirm given the seemingly well-founded criticism of the police in that case for failing to adequately probe the complainant’s allegations, meaning that inconsistencies in their statements were discovered on cross-examination by the defense, fatally undermining their credibility). Not being a criminal lawyer, I can’t use my own experiences to square those two accounts (and, admittedly, my exposure to crowns is Toronto-centric, experiences may vary elsewhere – based on recent events, I’d have concerns about the Alberta courts), but the fact that certain proponents of the critical narrative characterized Marie Henein’s masterful conduct of the Ghomeshi trial as a case of “whacking” the accused (rather than the complainant’s “whacking” the crown) did nothing to enhance the credibility of that narrative (and, if nothing else, suggests that your construction of the “critical narrative” is not at all a straw man).

    In truth, that’s probably unfair to some proponents of the critical narrative – one woman’s vigorous and ethical defense may be another’s “whacking”, and the distinction between the one and the other is hardly a bright line (although, the line is also not so gray that, for example, the handling of the Ghomeshi trial by the defense should be considered a debatable point). But that uncertainty cuts both ways – it means that the critical narrative, if embraced by the profession could discourage an advocate from pursuing a legitimate, if uncomfortable, avenue of attack (perhaps the wrong word to use) in defending their client’s interest.

    On a final note, I take your point that a finding of not-guilty could be misconstrued as a finding that the complainant was lying. I wonder, though, about the practical implications of that? After all, typically in a sexual assault case, there is a publication ban on the complainant’s name (the Ghomeshi case was somewhat unique in that one of the complainant’s waived, perhaps unwisely, her right to anonymity), so how does such a miscontrual harm the complainant as a practical matter? Is it a misconstrual by her and her immediate circle?

    Moreover, in some sense, it’s the same issue faced by a factually innocent accused arising from a finding of not guilty – namely, it’s not a finding of innocence. Our legal system does not, formally, at least, distinguish between a finding of not guilty against an accused who is factually guilty but for which the crown had a weak case and an accused who is factually innocent (although not common, I am aware of at least one case, where a court did, in reaching its verdict of not guilty, conclude that, factually, the accused did not commit the act of which he was accused – a de facto “innocent” verdict. In that case, that factual finding did prove to be particularly useful in clearing the accused’s name in the broader court of public opinion). Of course, the factually innocent accused doesn’t benefit from a publication ban, and thus has to live with the stigma of being an accused sexual abuser for the balance of his or her life.

  4. Hi Bob,

    Thanks for this very thoughtful response. Just to be clear, both the critical narrative and the defending narrative are straw people, in the sense that they don’t reflect what intelligent/thoughtful/nuanced proponents of either view say. They are what popular debate from either perspective looks like (as an example re the defending narrative, see the comment above yours).

    More substantively, I don’t disagree with your general points re the structure of criminal defence and so on. Most of my work in this area is on defending the zealous advocacy of criminal defence lawyers – I am by inclination part of the defending narrative.

    But I also think sexual assault poses unique challenges for the reasons I identify, and also because of the history of sexual assault trials, and also because of some of what still goes on in Canadian courtrooms. For that, and in terms of understanding the experience of complainants – things that a pub ban doesn’t address – I would strongly commend to you Elaine Craig’s empirical work on cross-examination in sexual assault trials, and on advertising by criminal defence lawyers. Her work has shifted my thinking on this. Some of the on-the-ground practices that occur – in all Canadian courts – are pretty appalling, and thinking about a) why they are inappropriate; b) why they nonetheless happen; c) where the lines are – because, after all, an accused *is* entitled to a zealous defence and that shouldn’t be changed just because some lawyers are terrible, merits greater consideration than popular discussion permits. Figuring out the boundaries is no simple task.

    In general I would say that I find the conversation around lawyers ethics, whether in criminal law or elsewhere, tend to be unduly simplistic – to act like there are straightforward answers or that real problems are non-problems. Monroe Freedman’s wonderful piece from 1966, on the 3 Hardest Questions for criminal defence lawyers, tried to show how hard the issues are – re perjury, cross-examination and misleading the court – and for 50 years after all that happened was that people reduced his work to “Monroe Freedman thinks lawyers should suborn perjury”, which was not his point *at all* (even if he thought sometimes they should).

    What I am urging is more thinking like his, and like Elaine’s. We have not figured this one out.

    I would also strongly recommend Abbe Smith’s amazing piece on cross-examining sexual assault victims – written as a criminal defence lawyer and a feminist (published last year in Georgetown Journal of Legal Ethics). It also shows how challenging the issues are – how potentially irreducible the problems.

    I do agree as well that part of the reason for the complexity is because the stakes for an accused in a sexual assault trial are incredibly high. This isn’t a one-sided issue.

  5. Ethical boundaries are not clear. Attempting to be “incredibly clear” about a notoriously ambiguous aspect of law will not be a satisfying experience. In the end, the system is designed around the presumption of innocence, not the protection of witnesses.

    In that sense, as with the two-sided coin analogy, it stands to reason that any effort to protect witnesses from harm will inevitably erode the presumption of innocence – especially in the context of sex assault where so many cases are decided on credibility.

    That being said, should the profession approve of an ethical boundary, it ought to be enforced by the court. The onus being on the judge to maintain that boundary – not the advocate.

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