Retired Superior Court Judge, Marie Corbett’s new book, January: A Woman Judge’s Season of Disillusionment is a memoir, which chronicles Corbett’s experiences of caring for a friend as she died of cancer. The book describes how helping her friend through the final two weeks of her life made Corbett reflect on her career and the short comings of Canada’s justice system.
In this province, there has been outrage about the cross-examination tactics being employed when interrogating the complainants in the Sofyan Boalag trial. Sofyan Boalag has been accused of sexually assaulting five women, and one girl under the age of sixteen in St. John’s, in 2012. Judge Pamela Goulding will make her decision on August 2nd 2016.
In January: A Woman Judge’s Season of Disillusionment, Corbett describes how the criminal justice system fails survivors of sexual assault. In this interview she gives her opinion on the cross examination of victims in the Boalag trial and why victims need more rights in sexual assault trials.
Do You Think the Fact That Law is a Field Dominated by Men Shapes How Sexual Assault Trials are Handled in Canada?
When I was appointed a judge, women were only three percent of the judiciary, now in Canada women make up forty-eight percent of the judiciary. That’s an enormous step in itself, however the laws we are enforcing, whether we are judges or lawyers, are laws that have been passed down for centuries and those laws were made by men. Women had no input in the development of law over the centuries.
For example, initially women who were unchaste were not considered worthy of belief in a sexual assault trial, their evidence had to be corroborated, that was because of laws created by men.
We have gradually come to a place where there are some protections in place for victims in a sexual assault trial. We recognize the role of victims through victim impact statements, we permit victims to testify with a shield, there are limits on the cross-examination of the past sexual history of victims.
But it is still a very male culture. A lot of lawyers in Toronto are leaving the practice of criminal law and they refer to the male culture as the reason they are leaving.
The adversarial system itself is a problem, it pits one side against the other. Victims are essentially witnesses and don’t have any defined legal rights in the process.
I believe victims should be given some rights.
The nature of cross-examination is also problematic. Cross-examination brings out the duty of the cross-examining defence council to undermine the witness, to create a doubt about her reliability and her credibility. Rape culture myths that are often used in cross-examination to discredit the witness.
And then personal traits are dwelled upon, “You tend to exaggerate,” “Aren’t you being dramatic?” The behaviour of the victim becomes the focus of the cross- examination. It’s universally unpleasant, it’s considered by most victims who testify to be demeaning and humiliating.
What Was Your Impression of How the Complainants in the Boalag Trial Were Cross-examined?
I think it perfectly typifies rape culture that women are attacked for their behaviour and for drinking. It’s as if because you drink or you like to party or you dress in a so-called ‘tarty fashion’ that your behaviour is an invitation to be assaulted and it simply isn’t. But that mentality seeps into the courtroom.
I do not think the nature of cross-examination is going to change, more rights should be given to victims. They should be given legal advice about what to expect, about how they will be cross-examined on previous statements that they’ve given. Anything they’ve said to anyone will be ruthlessly cross-examined.
I think that statements that a complainant may have given to another person should be admissible in court. They are not admissible now under a law that says that statements given to others are self-serving and they can’t be adduced in evidence.
The only portions of those statements that get adduced in court are by in-large inconsistencies, i.e. wherever the witness has somehow changed the statement. In that case it can be the smallest little thing like “was it a button or a zipper?” Lawyers pour over statements complainants have made and try to whittle down their credibility.
The other issue is delay, in the case of the Boalag trial it took years according to newspaper reports. He’s going to trial in 2016 and the offences were in 2012. That’s too long, there has to be some control over that. An accused person has a right to a speedy trial but there’s nothing said about the victim’s right to a speedy trial. Perhaps victims should be included in the process when requests for adjournments are made.
Some of the Victims in the Boalag Trial Were Sex Workers. Do You Think Stigma about Sex Work Presents Itself in the Courtroom During Sexual Assault Cases?
Of course it shouldn’t, just because you’re a sex worker doesn’t mean that a person has the right to assault you.
In the case of sex workers the cross-examination will often try to say “oh you were really negotiating a price.” That points out the pitfalls of cross examination. It’s gruelling for the victim, they’re like a dartboard, lawyers are hurling darts at them to see if anything sticks.
What Can Regular Citizens Do to Help Improve the Criminal Justice System for Survivors of Sexual Assault?
The real culprit isn’t the criminal justice system it’s the lack of respect for women. Violence is perpetrated predominately against women and children and it’s inflicted overwhelmingly by men. Change has to start with a greater respect for women.
Interesting article and I agree with Judge Corbett, but didn’t anyone proofread this? Transcribing a conversation is not easy, but the errors in punctuation and spelling should have been corrected before this piece was published.
Yes, and she’s a Newfoundler too!
Excellent article, well written and interesting. Kudos to the writer for making a complicated topic easy to read and informative at the same time.