Jailing a sex assault victim: This is not what justice should look like

This article by OCRCC Coordinator, Nicole Pietsch, appeared in The Globe & Mail. 

Popular understandings of sexual assault reflect the shattering impact it can have on the lives of victims. They also reflect the public’s trust in the criminal justice system and sensitive treatment for the victim. Indeed, victims involve the criminal justice system with the hope that they will be believed, supported and protected from further victimization.

Standing in stark contrast to this is the experience of a 27-year old woman who was violently attacked, held against her will and sexually assaulted in Edmonton in 2014. At the court hearing a year later, the victim was jailed for five days to ensure she would testify against the accused. For at least two days, she testified in leg shackles. When she asked to be released to her mother’s home, a judge said no. Over the course of her detainment, she was driven to court in the same van as her assailant at least twice.

Of note, this survivor of violence was young, Indigenous and living without housing at the time of her assault.

“She was the victim of a horrific crime,” Alberta Justice Minister Kathleen Ganley said of the young woman. “One of the questions that keeps me up at night is whether it would have been the case, that if this woman was Caucasian, and housed, and not addicted, whether this would have happened to her.”

We don’t like to say it outright, but who you are – that is, your age, race and other privileges (or lack of them) – can have an impact on your experience of violence.

Young women from marginalized racial and socioeconomic groups are more vulnerable to being targeted for sexual violence. And while most women’s advocates agree that the justice system’s ability to resolve these crimes is weak overall, its response to Indigenous complainants is decidedly poor. Sisters In Spirit – an organization that conducted research into the high rates of violence against Indigenous women and girls in Canada – reveals that Indigenous women are over-represented as murdered, violated and missing cases that are not adequately addressed by justice systems.

We continue to live in a culture that seems to differentiate between so-called “good women” who can be violated, and “bad women” who cannot. Being a “good woman” is an unspoken pressure, based on a social script that expects women to be pure, weak and chaste. This is a standard that few of us could reach today, particularly under the scrutiny of the courts. But more, this script stands in contrast to false yet continued stereotypes about poor, street-involved or Indigenous women.

Even so, sexually violated women are expected to toe this feminine line: doing their part to continually prove themselves “good women”, undeserving of the violation – and, of course, willing to work with a larger system to validate this, and do their part to help catch the bad guys.

There are many reasons why victims do not wish to work with the criminal justice system – or cannot bear to do so. These reasons include everything from emotional trauma, to fear for one’s safety, to lived experience of institutional racism, to practical reasons such as a lack of safe housing.

More than anything, the case in Alberta points to the spectre of a criminal justice system that – like twisting someone’s arm to compel them to cry out – wielded its institutional powers to enact its hallowed justice.

In this case, the victim was treated like a criminal, simply for being young, homeless and at-risk of not appearing in court to give her testimony: “I’m the victim and look at me, I’m in shackles,” she told a provincial court judge.

This is not what justice should look like to vulnerable women. Instead of meeting victims’ resistance to the criminal justice system with more force, I wish to see a system that recognizes the complexities in the lives of victims. More, I wish to see a system that takes leadership to ask complainants: What do you need from us? What supports can we offer you while you are working with us?

Without this and other humane strategies, our justice systems will continue to fail those who need it most.