July 28, 2017 10:42 am

COMMENTARY: Justice for sexual assault shouldn’t be limited to the criminal system

Mandi Gray stands with supporters as she talks with media outside court in Toronto on Tuesday, March 14, 2017.


Last week Ontario Superior Court judge Michael Dambrot overturned a ruling that found York University graduate student Mustafa Ururyar guilty of sexually assaulting fellow classmate, Mandi Gray. Ururyar has been granted a new trial, which wasn’t exactly unexpected as Gray herself had expressed frustration at the trial judge’s unorthodox ruling.

READ MORE: Toronto man appealing sexual assault conviction, claims judge was biased

Dambrot made a point to criticize trial judge Marvin Zuker’s decision, which was unusually long and peppered with references to feminist texts such as Maya Angelou’s I Know Why The Caged Bird Sings.

WATCH: Ontario judge overturns conviction of Mustafa Ururyar

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Speaking with Manisha Krishnan of Vice back in September of last year, Gray noted that the unorthodox ruling of the trial judge, coupled with the unconventional measure of having of Ururyar pay $8,000 for her legal fees would make a successful appeal that much more likely.

In a strict legal sense, Dambrot was doing what he – and many other legal scholars – thought was correct in granting the appeal and a new trial. However, this entire ordeal demonstrates the need for reform in our justice system as it pertains to sexual assaults, specifically, the need for an alternative to the criminal system.

One possible option for victims of sexual assault is to opt for an alternative dispute mechanism known as restorative justice. Legal scholars have been putting this idea to the forefront for quite some time now, including recently by Osgoode Hall Law School professor Daniel Del Gobbo in the Toronto Star.

READ MORE: Dal Dentistry restorative justice participants speak out for 1st time

Another alternative to the criminal system would be the civil system. Before you roll your eyes at this notion or get angry about the civil system not being an appropriate venue for a crime as heinous as sexual assault, it’s worth considering the very obvious advantages civil courts could provide over criminal courts.

One of the biggest hurdles for sexual assault complainants to overcome in the criminal system is the incredibly onerous burden of proof. Beyond a reasonable doubt is incredibly difficult to surmount in cases wherein little to no forensic evidence may exist, this is only compounded by the fact that victim testimony is seldom enough to convict.

This was made explicitly clear in the highly publicized trial against former CBC personality Jian Ghomeshi, wherein Judge Horkins asserted in his ruling, “There is no legal bar to convicting on the uncorroborated evidence of a single witness. However, one of the challenges for the prosecution in this case is that the allegations against Mr. Ghomeshi are supported by nothing in addition to the complainant’s word. There is no other evidence to look to determine the truth. There is no tangible evidence. There is no DNA. There is no ‘smoking gun.’ There is only the sworn evidence of each complainant, standing on its own, to be measured against a very exacting standard of proof.”

READ MORE: Sex assault victim says courts are making victims afraid to come forward

In a criminal system, where serious jail time is a possibility, this has its obvious advantages. But in a civil system with a lowered burden of proof, the penalties would also be much lower, with jail time effectively being rendered obsolete. There are certainly advocates for sexual assault survivors out there who would consider the lack of jail time an incredible miscarriage of justice, and that line of reasoning is understandable, but choosing the avenue in which to pursue a sexual assault should ultimately be up to the individual complainant. In an ideal system, the Crown would consult with the complainant to determine the best venue.

The adversarial nature of our criminal justice system also ensures that rape myths will endure, given that defense attorneys inevitably rely on them in order to inject reasonable doubt. Further, our own societal preconceptions of how a victim of sexual assault should act both before and after the assault, as well as the false notion that the majority of sexual assault allegations are false, end up bleeding into the criminal system.

Before rising for the summer, the House of Commons passed a bill put forward by former interim Conservative leader Rona Ambrose that will require judges to undergo training in sexual assault law, which should alleviate some of these issues, but shouldn’t we be giving victims of sexual assault multiple tools and venues?

After all, justice can come in many forms, and there is no reason to ignore the potential and possibility of finding redress through the civil system.

Supriya Dwivedi is host of The Morning Show on Toronto’s Talk Radio AM640 and a columnist for Global News.

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