Confidence in Canada’s criminal justice system among victims of sexual assault is demonstrably at an all-time low. Just five percent of sexual assaults are reported to the police and, in contrast to other violent crimes, sexual assault rates have not declined. It stands to reason that sexually violent men who are not held to account are free to target other women. Clearly, significant, transformative change is long overdue.

Despite progressive reforms of Canada’s sexual assault laws designed to remove sexist barriers to fair treatment of (primarily) women complainants, and to encourage victims to come forward, women continue to avoid the police. There are many reasons for this, such as shame and embarrassment, or fear of retaliation. But a chief deterrent is a concern they will receive poor treatment by police and courts. These barriers to reporting persist despite police training, specialized sexual assault police units, and improved coordination between police and sexual assault support centres in many communities.

When women do report these crimes, police can use their discretion to drop complaints they deem to be “unfounded,” even when there are grounds for criminal charges and a suspect has been identified. A Globe and Mail investigation showed that, depending on jurisdiction, between two and 51 percent of sexual assault complaints are dismissed by police as unfounded. This sends a message to women there is a very real chance the police will not believe them.

Fortunately for Canadian police, there is a gold standard practice on which to base their own reforms: a model developed in Philadelphia almost 20 years ago and replicated in several American cities. Under this model, police partner with local sexual assault support centres in a transparent effort to understand and remedy problems with sexual assault investigations. They review unfounded and closed cases to identify investigative failures and decisions based on rape myths and stereotypes.

The results are impressive. The thoroughness of investigations and classification of cases have improved significantly. Some cases deemed unfounded were re-opened and charges laid where warranted. Suspicion and mistrust between police and community groups were reduced and both rate the model highly.

Amidst growing evidence, it is time to acknowledge that sexist views and rape myths govern decision-making at all stages of the Canadian justice system. Police decisions are influenced by preconceptions about “real rape” and “genuine” victims, and who is worthy of police protection. Officers take account of legal factors to determine whether a crime has occurred; but they also assess complainants’ credibility and truthfulness based on non-legal factors, some of which have been specifically abolished by law. For example, credibility can be assessed on the basis of a woman’s clothing, ethnicity, poverty, level of emotional upset, prior sexual assault complaints, relationship to the suspect, drug or alcohol use, and history of psychiatric problems.

Some claim that police operate within a pervasive ‘‘culture of skepticism,’’ where the goal of the investigation is to find evidence that the complaint is false. This skepticism is grounded in widespread assumptions among police and wider society that large numbers of women cry rape falsely. In reality, only between 2 and 10 percent of sexual assault complaints are false, no higher than for other crimes.

Among cases police consider to be legitimate crimes, less than half result in charges against a suspect. Dismissal of sexual assault cases then continues throughout the justice system. Half of suspects face a prosecution and just half of prosecutions result in a conviction. In other words, just 1 in 10 sexual assaults recorded by police as legitimate lead to a conviction. If we factor in the 95 percent of sexual assaults that are not reported to police, as well as those classified as unfounded, a perpetrator is held accountable in less than 1 percent of all sexual assaults. This spells impunity for sexual predators.

Fair investigations and collection of solid evidence depend on police having knowledge of the impacts of trauma and trauma-informed investigative techniques. Some Canadian police agencies have begun to develop appropriate training and all must be encouraged and supported to do so.

There is a growing recognition that trauma resulting from sexual violation also affects the chances of being believed. For example, truthfulness is often judged on how vigorously the woman defended herself and how flawless and linear was her initial statement to police. We now know that trauma can affect both the ability to meet stereotypical expectations about how a “real” victim reacts or how coherently a traumatized person can describe the details of the attack. Sexual assault centres and health and social service agencies know this and are trained to respond to trauma. Police officers typically are not. This can affect the level of respect and sensitivity police show complainants and the thoroughness of the investigation.

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Fair investigations and collection of solid evidence depend on police having knowledge of the impacts of trauma and trauma-informed investigative techniques. Some Canadian police agencies have begun to develop appropriate training and all must be encouraged and supported to do so.

The media attention that followed the Globe and Mail exposure of the widespread practice of “unfounding” – that is, dismissing – sexual assaults put pressure on police to review how they handle these cases. Some police agencies with above-average unfounded rates concluded – in closed-door case reviews – that there were no problems with investigations or how cases were classified. However, reviews conducted behind closed doors offer no transparency or accountability, allowing police to evade scrutiny of how thoroughly they pursued certain lines of evidence, or about prejudicial or incomplete questioning of complainants or suspects. Thus, these police agencies are free to re-classify cases without making meaningful changes to policies or procedures.

The good news is a small number of Canadian police agencies are looking to adopt the Philadelphia model. The accountability and community oversight this involves are essential for real, sustainable improvements to women’s safety and dignity and to the proper functioning of the law. All police agencies must be encouraged and supported to do the same.

According to the Ontario Human Rights Commission, the failure to properly investigate and prosecute sexual offences is a form of systemic discrimination and a human rights violation. The Chief Commissioner recommends independent monitoring of operations and accountability, as well as data collection to identify where systemic discrimination occurs — the very essence of the Philadelphia model.

Considering the many failures to deliver justice to sexual assault complaints, some may be surprised to know that Canada is considered a leader in sexual assault law reform. There are aspects of our law, such as affirmative consent requirements and protections for complainants who testify, that are explicitly designed to promote gender equality and improve accountability of violent men. But laws are only as good as their implementation. Sexual assault complainants who are afraid of the consequences of reporting, or put their faith in police only to see their cases dropped, do not benefit from our progressive laws.

The first step toward transformative change is to acknowledge that sexism among police is systemic, and not simply a problem of a few “bad apples.” Police agencies must dig deep to find the level of self-criticism needed for truly revolutionary change within their ranks and power structures that will ensure justice and safety for all women. The way forward is clear, if only we can find the will.

This article is part of the Improving Canada’s response to sexualized violence special feature.

Photo: Shutterstock by Tinnakorn jorruang

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