A close look at court transcripts shows past decisions were largely based on myths about the nature of sexual assaults.

With the onset of the surveillance age, the electronic documentation of the human experience is everywhere. Sports programs use instant replay and/or photo finishes to assess who crossed the finish line first. Professors use online course measures such as the number of posts to discussion threads and time spent in various course materials to gauge student progress. Corporations use data about clients’ purchases to understand their purchasing behavior and develop more targeted marketing strategies that will lead to greater sales.

In our research on sexual assault trials, we’re using a similar strategy. We’re mining Canadian court transcripts to better understand how interrogation strategies used in the courtroom have an impact on decision-making in Canadian courts.  In sexual assault court cases there are usually two conflicting stories: she says “rape,” he says “sex.” Who is lying? The court must weigh the evidence and decide. But how do courts “think”?

The woman who has been assaulted gives her evidence in response to questions posed by the Crown and the defence lawyers. There is always a complete transcript of everything that was said in the courtroom. When we first looked into the content of sexual assault trials 20 years ago, we used audio recordings to analyze every question asked of women who were victim-witnesses in 105 sexual assault trials. Mining the content of thousands of questions asked in many court cases showed patterns of how courts “thought” in these trials. We found that 15 categories organized the content of 3,500 exchanges of questions, answers and follow-ups between a lawyer and a witness. These categories included “condition of clothing” (for instance, damaged or not); “timing of reporting” (such as delay in reporting or immediate report of the assault); “evidence of resistance” (for instance, injury or not); and so on.

Because these were actual questions asked of the witnesses, we knew they came from the thinking of the lawyers.  And because we had the verdicts, we could identify the circumstances on which the courts based its judgments. Our conclusion was that the decisions reached by the courts were largely based on myths about the nature of sexual assaults. For example, most victims do not resist a sexual assault to the point of getting beaten up, yet lack of evidence of physical harm was taken as evidence that there was consent.

We took a second look at this methodology when the trial for sexual assault of Alexander Scott Wagar received widespread publicity. A disciplinary process is underway against Judge Robin Camp, who presided at Wagar’s original trial in Calgary in 2014. Camp made remarks during the trial that were insensitive to women and ignorant of the laws pertaining to sexual assault. Amanda Parriag has argued that even more troublesome than Camp’s insensitivity was the fact that the reasoning used by the defence and accepted by the judge in acquitting Wagar was illogical.

Our concern stimulated us to ask a new question: Could the question-and-answer exchanges be used like an instant replay for evaluating the validity of the reasoning used by the courts in sexual assault trials? Instead of looking just at the question’s content, could we get at the underlying logic of the questioning?

We found repeated examples of three categories of illogical arguments used by defence lawyers in the cross-examinations of victim-witnesses.

Philosophers have developed a formal system for evaluating arguments for their truth and validity, and a formal notation system — called symbolic logic — for carrying out the process. Every argument is based on statements (premises), which can be evaluated as true or false, and every argument reaches a conclusion, which can be evaluated as either valid or invalid based on rules of logical reasoning. If an argument is found to be based on false premises or to reach an invalid conclusion, it can be called illogical.

We found repeated examples of three categories of illogical arguments used by defence lawyers in the cross-examinations of victim-witnesses. These arguments were largely accepted by the courts, were not objected to by Crowns and often appeared to be associated with an acquittal of the accused.

The first was the same error of logical reasoning used by Judge Camp, known as a categorical fallacy: All As are not Bs; C is not a B; therefore C is an A. In the typical sexual assault case, the categorical fallacy goes like this: Women who consent to sex are not harmed; this woman was not harmed; therefore, this woman consented to sex. This conclusion is both factually false and a structurally invalid argument: although consent implies no harm, the lack of harm does not logically imply consent.

The second type of illogical argument involves a subtle two-step process that begins with the truth that women who resist to the point of physical harm and injury are not consenting to sex. The logical equivalent of this statement is also true: Women who are consenting to sex do not resist to the point of injury. However, the converse of that statement is false: Women who are not harmed, consent to sex. When the converse is used as the initial premise, the form of the argument is structurally valid — this woman was not harmed, so therefore she consented to sex — but the conclusion is false, because lack of consent does not logically imply lack of harm. When the initial premise is false, the conclusion is not valid.

Scientific inquiry and careful examination of the available information can inform our society’s response to social problems such as sexual assault.

In the third category, an argument that may be applicable in one context is applied in a different context where it is not appropriate. For example, a defence lawyer might ask a woman whether she tried to escape the situation although there was no place to escape to (e.g. she and the complainant are the only two on a beach at night), or whether she tried to resist although the likely outcome was physical harm and injury (e.g. he had threatened to beat her if she resisted).

Twenty years after our first look into these issues, we still see a failure of fundamental justice that denies fairness and equality to women who have been sexually assaulted. Based on our replay of our previous transcripts, logic seems to be optional in sexual assault trials. But we still believe that scientific inquiry and careful examination of the available information can inform our society’s response to social problems such as sexual assault. We invite other scholars to apply or help refine the methodology in our working draft of a manual for coding sexual assault trials for illogical arguments.

Amanda Parriag, Wendy Hovdestad, and Laura Park were PhD graduate students and Edward Renner a Research Professor at Carleton University when the original research was carried out. They have reunited to carry out this new research on applying the standard of logic to the transcripts of sexual assault trials. They are refining and cross-validating the methodology on current cases.

Photo: Shutterstock.com

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