The criminal justice system’s response to sexual assault is in the spotlight again. There was Judge Robin Camp’s resignation, and an excellent investigative journalism into the number of sexual assault cases categorized as unfounded by police. There was also the recent Halifax case, in which Judge Gregory Lenehan felt there was a reasonable doubt around whether an unconscious woman in the back of a taxi was non-consenting. These have all brought much-needed attention to the issue. To move past a fleeting spotlight into real solutions requires simultaneously taking a statistical, descriptive and legal perspective on this complex issue.

The statistical perspective

The statistical perspective is captured by the so-called attrition pyramid.  Similar to a population pyramid used by epidemiologists, a sexual assault attrition pyramid shows how fewer and fewer sexual assaults advance through each level of the criminal justice process. Statistics Canada’s General Social Survey on Victimization provides estimates of the number of sexual assaults that occur every year versus the number that are actually reported to police. Other official statistics illuminate how the criminal justice system processes the reported cases through investigation, arrest, charges, trials and convictions or acquittals. Of the hundreds of thousands of assaults, only five per cent are reported to police, and at the end of the criminal justice process, only three of 1,000 results in a conviction.

As long as the criminal justice system, at each step of the process, filters out the vast majority of sexual assaults, women will not report to police. And if women do not report, a social problem that directly affects 25 per cent of the female population will remain invisible.

The descriptive perspective

Ongoing data collection is essential to keep the statistical perspective up to date. Further description of what happens to women and their cases when they’re in the system is also necessary. The elements responsible for the severe attrition of cases have been documented. Police, Crown attorneys and judges do not randomly filter out cases. It is quite predictable who will be believed, who will be prosecuted, who will be convicted. Authorities are more likely to believe women, and prosecute and convict their assailants, when they’re attacked by dangerous strangers with no credible social position who inflict physical harm and then run away.

But the vast majority of sexual assaults don’t fit that description. Most sexual assaults are committed by someone who is known to the woman, most women submit to their bigger, stronger attackers when threatened, in order to avoid physical harm, and most rapists have some social standing and are not perceived as dangerous. Thus, the myths about the usual nature of sexual assault – dangerous strangers who violently, randomly attack result in the high rate of selectivity, and effectively discount the seriousness of the offence, resulting in the low conviction rate.

The legal perspective

As well as statistics and descriptions, it’s essential to continue with analysis of the legal arguments that are made, and of the questions used to elicit testimony from witnesses, especially during cross examination. This is the “nuts and bolts” of how the defining circumstances of most sexual assaults (i.e., relationship, no harm, no dangerousness) are interpreted by the courts to mean that a woman’s statement of non-consent should not be believed. Commonly accepted sexual assault myths (such as that a woman who doesn’t fight wasn’t sexual assaulted) allow defence attorneys to disguise their illogical arguments as rational. They use myths to step outside the boundaries of formal reasoning and make illogical arguments based on false statements, invalid structures and inappropriate applications.

Defence arguments about lack of resistance and lack of physical harm provide one clear example. The simple statement that a victim’s lack of physical injuries should cast doubt on her testimony is factually false. It’s an invalid structure to conclude that because physical harm means consent was not given, that lack of physical harm implies consent. And to suggest that because the victim did not attempt to escape when there was no place to go is an inappropriate application of non-verbal consent.

As long as the criminal justice system accepts illogical arguments based on sexual assault myths, it will lack the capacity to convict. The legal system will then continue to be a major contributor to the very problem for which it is the intended solution, and for which it is the only means of legal recourse.

The first two aspects – the statistical and the descriptive elements of sexual assault– are being well documented in professional literature. Our analysis of the legal perspective is new work. We created a rubric for analyzing the arguments made by defence attorneys to determine whether they stay within the constraints of formal logic.

The Mustafa Uruyar trial

For us, the starting point for the scholarship on logic was the national media coverage of the guilty verdict in the Mustafa Ururyar trial, and the subsequent appeal of the verdict. The appeal argued that Justice Marvin Zuker was biased in his judgment because he made note of myths and stereotypes about sexual assaults. The appeal court judge, Superior Court Justice Michael Dambrot, noted that Zuker “spent more time talking about sexual assault myths than evidence” and that he failed to explain why he made the decision he did. The most likely outcome when Dambrot’s decision is announced on June 8th will be a retrial. The complainant, Mandi Gray, has already given up two years of her life and has made clear she will not stand for retrial.

The appeal hearing never addressed the issue of whether Judge Zuker had, in fact, made the right decision in convicting Ururyar. As a result, the actual source of the problem – that the myths typically accepted by the courts are based on illogical arguments – won’t be dealt with. The Crown must appeal the probable order for a retrial, or it will be up to the media to carry to carry forward, into the court of public opinion, the essential discussion that never took place: Why is logic optional in sexual assault trials?

Photo: A placard is left outside court by a Mandi Gray supporter in Toronto on Tuesday, March 14, 2017, as Mustafa Ururyar appeals his conviction and sentence on the sexual assault of Ms. Gray. THE CANADIAN PRESS/Chris Young

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