What's it like to testify in a sexual assault case?
Cross-examination seen as tool for truth by defence, re-traumatizing by sexual assault complainants
The rigorous cross-examination of complainants during the sexual assault trial of former CBC host Jian Ghomeshi has women who reported sexual violence speaking out about the obstacles they faced dealing with the justice system — and defence lawyers countering that challenging accusers is in the interest of justice.
CBC Ottawa's All In A Day produced a series of interviews, with the perspective of a woman who faced cross-examination, another whose case never made it to trial, and defence lawyers who have led cross-examinations, as the Ghomeshi trial wrapped up.
Ghomeshi pleaded not guilty to four counts of sexual assault and one count of overcoming resistance by choking. The charges relate to three women, who reported they were sexually assaulted between 2002 and 2003.
'Irrelevant' questions
An Ottawa woman, who cannot be named due to a court-ordered publication ban, felt she faced "irrelevant" questions during her three-day cross-examination while facing the man she accused of sexual assault.
She reported she was sexually assaulted over the course of a long-term relationship that began when she was a teenager.
It's not just re-traumatizing but it's a whole form of trauma itself.- Woman cross-examined after reporting sexual assault
"Trying to understand sexual assault, especially in what was a relationship, was hard to understand for me," she said.
"I think I reported it because it was something that was on my mind and I know that the cycle of abuse continues and I didn't want to see that happen to other women."
At the trial, she was asked to go into "great detail" about "topics that had nothing to do with evidence," including where ejaculation happened and why she allowed herself to be alone with the man, she said.
"It was shocking and horrible and traumatizing. It's not just re-traumatizing but it's a whole form of trauma itself," she said.
Listen to the full interview below.
'Gruelling' cross-examination
The woman said that Sunny Marriner, the executive director of the Ottawa Rape Crisis Centre, was supportive as her case went to court.
Marriner said the defence tried to establish that the woman, through a lengthy cross-examination that delved into her education and life experience, "should have had a very clear idea of what sexual assault was and in that case should have immediately been able to identify her experience."
In the end, the man was acquitted of sexual assault in the case.
Marriner said women who report sexual assaults are subjected to "gruelling" cross examination as a rule, not an exception, in a defence courtroom tactic meant to dissuade them from telling their stories.
"Every defence counsel that I've seen in a sexual assault trial follows the same process and uses similar tactics in cross examination," she said.
"Taking complainants through moment by moment by moment of an assault to a level of detail that I think that no average person would ever actually be able to recount or recall."
In 18 years of supporting women through sexual assault trials, Marriner said she has never been in the courtroom for a guilty verdict.
'Frustrating, demoralizing, disheartening'
She said she was "viciously" choked, beaten and raped while on a date but waited two weeks to report it to police, in part, because she didn't want to have to relive the experience.
"But also because I work in sexual violence, I knew, full well the likelihood that I would get any sense of justice or that a conviction would result in this report was extremely slim," she said.
The latest figures from Statistics Canada show sexual assault cases in Canada have a conviction rate of about 45 per cent. A 2012 Statistics Canada study found that for every 1,000 sexual assaults in Canada only 33 are reported.
In the end, Moore said the detective and prosecutors on her case told her they believed her story but that there was likely not sufficient evidence for a conviction.
"Incredibly frustrating, demoralizing, disheartening, but also not surprising given what I know about the justice system," she said.
Earlier this month, Moore received $236,000 from the province to lead a study about on-campus sexual violence.
Listen to the full interview below.
Cross-examination helps 'get to the truth'
Ghomeshi's defence lawyer Marie Henein grilled three complainants over the course of his trial about details of the alleged sexual assaults, as well as their relationships with him afterwards, including email correspondences.
- 'Digital debris': Ghomeshi emails highlight role of 'e-discovery' in trials
- Lucy DeCoutere wrote accused that she wanted to have sex with him after alleged assault
Some sexual assault survivors and advocates have characterized the cross-examination as "whacking the complainant," but Ottawa defence lawyer Anne-Marie McElroy said Henein was just doing her job by bringing forward inconsistencies in the stories of the complainants.
That, she says, is not "whacking the complainant."
"What we term as 'whacking the complainant' means using things like bullying tactics or trying to evoke someone's sexual history, things like that," she said.
Defence lawyer Michael Spratt said that "inconsistencies is how we get to the truth of the matter."
"If we're going to go as far to say that pointing out inconsistencies in a witness's evidence is improper or is whacking, I think that really sets us down a path to wrongful convictions," he said.
He added that inconsistencies that "don't go to the heart of a matter" will not necessarily work against a witness.
"Courts have been quite clear that inconsistencies, to some extent, can be used to show that a witness is honestly trying to recount matters rather than a scripted consistent event," he said.
Listen to the full interview below.
