• Mandi Gray

Rape: Who Actually Pays?

In this piece, I wish to explore why I retained independent legal counsel and the potential implications for future sexual assault victim/witnesses. I will briefly explore the arguments put forward by the Criminal Lawyers Association (CLA) in the the criminal case of my assailant (R. v. Ururyar 2016) and his appeal and the problematic assumptions that are being made in their factum. Before reading, you might want to check out Six lessons I learned from my rape case in NOW MAGAZINE.

In 2016, the man who sexually assaulted me was found guilty. Following the conviction I was asked to submit a “Victim Impact Statement”. The standardized form asked me to outline the economic, physical, financial, and security impact for the judge to take into consideration during sentencing.

I survived four days of brutal cross-examination that attempted to violate my privacy in terms of my sexual preferences and discussions with my therapist (despite the denial of both s.276 and s.278 applications by the trial judge).1 When I was asked to reveal personal consequences of the sexual assault, I had no interest in revealing any more personal details about my life or the emotional impact that the assault had on me.

But what I did want – was to share just how much the rape cost me financially and professionally. I wanted to highlight the consequences of defence counsels “legal strategy” to wear me down by repeatedly asking questions that violated my privacy rights. I was angry at the courts for the failure to respect the provisions of the so-called rape shield laws, or rather as I refer to them now as “rape shield myths”.

Under the newly enacted Canadian Victims Bill of Rights, I was able to seek restitution for some of the costs that I incurred from the rape. Many of the costs would be difficult to calculate (such as time off from my PhD program, loss of relationships and lost opportunities). I submitted a bill for privately retained legal counsel for a total of $11,000 and asked that the attacker pay for it. To me, this cost was inconsequential to the personal, financial and emotional costs I had endured at no fault of my own: being a target of rape.

In a precedent setting judgment, Justice Marvin Zuker ordered a restitution order of $8,000 to cover a large portion of my legal costs.

On February 12, 2017 the Toronto Star reported that the Criminal Lawyer’s Association (CLA) was permitted to intervene in the upcoming appeal of the conviction and the sentence. The CLA is intervening on narrow grounds arguing that it is unfair for the sentencing judge to order a restitution order to cover a complainant’s legal fees in a sexual assault trial.

First and foremost, one of the most common questions I receive is: why did you retain legal counsel? Prior to my assault, I would have never thought about a victim of a crime retaining legal counsel for a criminal matter. After my assault, I was desperate and drowning in institutional bureaucratic discourse and the offloading of responsibilities between the university and the legal system. Wishing to return to my studies and employment after the assault, it became clear that seeking an advocate was the only way to make sure I could return to my work and education.

Relatively shortly after my assault, my friend and mentor, Jane Doe, 2 gave me a piece of advice from her own rape trial about thirty years ago: get a lawyer and worry about how you will pay for it later. Jane Doe’s advice led me to making the best decision I ever made. I recognize that this is a significant privilege that I am afforded and that is why I have been fighting tirelessly to ensure the availability of independent legal counsel for anyone who experiences sexual assault and seeks institutional remedy.

It is my position that the CLA analysis of the issue is grossly misguided and requires a larger discussion about access to justice for both accused and complainants in sexual assault cases. I understand the stated concern of CLA is ‘fairness’ for the accused. On behalf of the CLA, Daniel Brown, is quoted in the Toronto Star stating that it is “unfair given that accused persons who are acquitted cannot have the Crown reimburse their legal fees”.

This is where the position of the CLA and my own beliefs differ – we cannot conflate the legal status of accused persons and those who have been convicted. Both experience different societal and institutional barriers in accessing justice, but these experiences and challenges are not one and the same. Furthermore, it is problematic to take an all or nothing approach to the issue – particularly in the social and political realities of sexual assault cases as demonstrated by recent cases across Canada from Justice Camp to the most recent discriminatory remarks made by Justice Lenehan.

It is my primary concern that the CLA has unintentionally put two marginalized groups against one another: those accused of crime/those who have been convicted of a crime versus victims/witnesses in sexual assault cases. It is problematic to equate access to justice issues faced by these parties as comparable or linked. Justice for victims/witnesses makes the system manifestly more fair. It need not detract from the due process concerns of accused persons. Of course, the barriers of accessing affordable and timely legal counsel are of paramount concern given recent budget cuts across Canada. However, that cannot be confused with the qualitatively different barriers to “accessing” justice for victim/witnesses in sexual assault trials. Until the legal system can demonstrate its ability to uphold professional and legal responsibilities to sexual assault complainants, I believe that independent legal counsel is absolutely necessary given the current realities within a sexual assault trial. The arguments made by the CLA demonstrate a lack of understanding about the legal process from the perspective of a victim/witness. The broader legal system and Canadians, in general, deserve better.

Footnotes

1. Section 276 states that a victim's/witness' sexual history is not permissible as evidence unless granted by a Judge. Similarly, section 278 states that third party records of a victim/witness (most commonly medical records) are not permissible as evidence unless granted by a Judge. These are what are commonly referred to as “Rape Shield Laws”. In my experience, all actors in the courtroom commonly disregard these provisions. Don’t believe me? Check out a rape trial!

2. Jane Doe is a long-time Toronto sexual assault activist. She is widely known for her precedent setting lawsuit Jane Doe vs. Metropolitan Toronto Police Commission for gender discrimination and negligence. Jane Doe is also a public speaker, author, researcher and lecturer. Her latest project is funded by the Ontario Arts Council and is titled Sexual Assault: The Road Show.