- J. Pushka (law student)
Gender Inequality in Courtroom Rituals and Suggestions for Remedy
Many underlying factors of the law and legal system exist which are not initially apparent, with one such factor being courtroom rituals. Certain rituals within courts have been argued to subtly assist in the inhospitable and hierarchical conditions faced by those participating in criminal justice cases related to sexualized violence.1 The exceptional emotional stress corresponding with many of these cases likely makes the inhospitableness and alienation experienced from such rituals more pronounced in sexual assault criminal law court proceedings. Elaine Craig outlines several courtroom ritual issues and possible remedies in her article The Inhospitable Court that invite further discussion.2 Three such courtroom rituals of civility, script, and aesthetic will be explored here, along with early opportunities to alter such rituals to address the perpetuation of inequality and inhospitableness experienced by claimants in sexual assault criminal law trials.
The courtroom ritual of civility may play a role in manifesting gender dynamics promoting inequality experienced by a claimant in a sexual violence case.3 Civility encompasses courtroom etiquette, with a traditional paradigm being one of respectability, propriety, and learned rationality— as contrasted with emotional, irrational, unreasonable, and thus uncivil behaviour.4 Often a sexual assault case can be emotionally charged for the complainant, rendering emotional reactions in court. The learned professional civility of the defense lawyer may at times be starkly contrasted with the complainant, should the complainant experience heightened emotions based on intimate subject matter. The ritual of civility necessitates a level of self-subjugation of complainants and their emotions, all during a time where they may be experiencing humiliation or discomfort the most.5 A further element to this imbalance is that sexualized violence is already an area rooted in gender-based inequality.6 Many complainants are women, who may be disadvantaged by civility paradigms based on gender-based stereotypes of having heightened emotion and sensitivity. As a result, the ritual of civility may contribute to the inhospitable environment of a courtroom, which can cause sexual violence complainants even more distress during trial.
One starting point for addressing inequalities stemming from a civility ritual in sexual violence trials may be to provide complainants with additional pre-trial preparation and resources.7 Civility on a basic level contributes to an orderly and functioning courtroom, and cannot be completely abandoned, so awareness and training of courtroom procedures may at least provide complainants with additional support of what is to come at trial.8 Increased sensitivity training as part of the Canadian Centre for Professional Legal Education may raise awareness of the issue to new lawyers before entering into trial. Additional Professional Development training could be provided by the Manitoba Law Society to emphasize the issue with practicing defense lawyers in the province. While civility will remain, it may be possible to adjust the negative effects this courtroom ritual can have on sexual assault claimants.
The ritual of the script may also contribute to the inhospitable conditions faced by complainants of sexualized violence participating in the criminal justice system.9 Courtroom scripts involve the formality and restricted character of communication used in trial proceedings. Scripted trial proceedings include the format of cross-examination, which emphasizes the power imbalance between defense lawyer and sexual assault complainant.10 A defense lawyer can use leading questions and repetition of a degrading fashion, while the complainant has little opportunity to deviate from the script of providing unquestioning answers without risk of being perceived as disorderly, disrespectful, and thus untrustworthy.11 Closely related to civility, the ritual of script requires sexual assault complainants to speak impersonally about deeply personal experiences, making the trial experience even more challenging for some complainants.12 In requiring trial participants to follow a strict script, it can be disheartening, with damaging results of feelings of alienation and humiliation on behalf of the individual having to testify.
There is some opportunity to address the negative consequences of a strict adherence to a script within the courtroom.
It is possible for trial judges to balance this courtroom inequality and reduce hostility through preventing incessantly repetitive or irrelevant cross-examination and by using a friendlier style of interaction with complainants.13 Judges can and have gone so far as to issue a court rule urging a more visible and substantive role for young female lawyers and to execute it through permitting multiple lawyers to argue for one party.14 An increased presence of female lawyers may lead to a more hospitable trial courtroom for sexualized violence complainants, as it provides a more equitable gender representation in the courtroom. While there is still much to be done, there has been a positive start in addressing the script ritual within courtrooms to ensure greater comfort for sexual violence criminal trial participants.
The ritual of courtroom aesthetic further contributes to inequality, which requires additional remedy. Courtroom aesthetic has typically represented masculine, colonial and Caucasian dominance through display of items such as the Royal Coat of Arms and judicial portraits.15 Such a display lacks equal representation of gender and race in Canada.16 The Manitoba Law Courts are no different. Upon touring the building, each portrait represented a Caucasian male. To address the aesthetic of gender and race inequality, it is necessary to include greater diversity in courtroom decor. Including additional caricatures of other groups of people could encourage more inclusiveness in the courtroom, albeit at an immeasurable level. Even in the Robson Hall Moot Court room, the addition of Indigenous artwork is a step forward in adding images to decrease notions of hierarchy and inequality within a court setting or legal learning environment. It is possible for courts, as well as legal educational facilities, to respond to inequality and inhospitable environments straightaway through addressing powerful rituals within their respective courtrooms and classrooms.
It must be noted that some progress has been made pertaining to aesthetic in Manitoba courtrooms. Newer designed courtrooms at the Manitoba Law Courts have accounted for a complainant or witness who has to share sensitive information. In some courtrooms the witness box is situated away from the forefront of the room and out of direct view of the defendant box. Such positioning could reduce the stress of those testifying by reducing the scrutiny placed on the witness box based on its location in the room. While there is room for progress to be made on improving court aesthetic, there are occurrences where aesthetic has already been altered to improve the experience of a complainant.
Some rituals guide the courtroom in an orderly fashion in order to enable an objective ruling and fair trial. Other rituals have effects of inequality and lead to an inhospitable and oppressive courtroom environment that can be damaging to participants. The nature of sexualized violence cases creates an amplification of such a situation due to the sensitive and personal subject matter, which is likely to invoke feelings of emotion, violation, and unease. Upon analysis of three court rituals of civility, script, and aesthetic, which are shown to cause participants additional inhospitable experiences, it is evident that there is opportunity for adjustments to be made in criminal law courtrooms. Progress is currently being made to address the inequality produced by court rituals, but there is still work to be done in ensuring sexual violence trial participants receive as much support as possible.
1 Elaine Craig, “The Inhospitable Court” (2016) 66:2 UTLJ 197 at 199.
3 Ibid at 207.
4 Ibid at 209.
5 Ibid at 212.
6 Ibid at 199.
7 Ibid at 236.
8 Ibid .
9 Ibid at 218.
10 Ibid .
11 Ibid .
12 Ibid .
13 Ibid at 237-239.
14 Alan Feuer, “A Judge Wants a Bigger Role for Female Lawyers. So He Made a Rule”, The New York Times (23 August 2017), online: <www.nytimes.com>.
15 Supra note 3 at 220.
16 Ibid .