In this blog Dr Elaine Craig, Associate Professor Dalhousie University – Schulich School of Law, Nova Scotia, Canada reflects on the rituals of criminal trials and explores whether Therapeutic jurisprudence (TJ) principles can make inhospitable trials hospitable…

Despite decades of progressive law reforms to the criminal law and the rules of evidence, fear of the criminal justice process continues to be identified as one of the primary reasons not to report experiences of sexual violence.

While striking a just balance between protecting sexual assault complainants and ensuring the due process rights of those accused of sexual offences remains difficult and controversial, the negative (sometimes traumatic) experience of many of those who turn to the criminal justice system following an incident of sexual assault is beyond debate.
Rituals are a part of that legal process and sexual assault complainants, as trial participants, are required to play their part.

These rituals regulate most aspects of courtroom process, and its various participants, including:

  • attire,
  • physical setting,
  • manner of address,
  • mode of communication,
  • aesthetic design, and
  • performance of what might be called micro-ceremonies (like swearing an oath or rising when the judge or jury enters the courtroom).

For sexual assault complainants, failure to perform these rituals – to comport oneself with the appropriate degree of civility regardless of the degree of self-subjugation this demands, to follow the script of cross-examination, to recount the ‘right details’ while expressing ‘the appropriate’ type and degree of emotion – is to be disbelieved.

Courtroom tradition, formality, ceremony and the separation between ‘the professionals’ and ‘the laity’ instantiate profound power differentials that mirror the very gendered, racialized and class based hierarchies that produce sexual violence as a prolific social harm.

Even the structure and aesthetic of the courtroom itself can reflect a hierarchy that reifies the shame that is often experienced by those who are subjected to gendered and sexualized harms.

These rituals of the trial inform how the process impacts those who turn to it to respond to sexual violation.

In my article The Inhospitable Court, I examined the trial transcripts in three recent Canadian sexual assault trials, reflecting an attempt to depict the continued brutality of this legal process.

The article exposes the way in which institutionalized practices – the design, traditions, and script of the sexual assault trial – contribute to its inhospitable conditions.

Aspects of the professional norms that help constitute and maintain these rituals are also considered. The horrifying impact of these practices on sexual assault complainants becomes undeniable when confronted with transcriptions of the questions asked and answered, the words spoken, and the emotions recorded. The power dynamics, the specificity and microscopic level of detail of the cross-examination, and the profound invasion and unquestionably humiliating exposure of the personal are readily revealed through the transcripts of these proceedings.  To put it simply, it becomes impossible to deny the brutality of the sexual assault trial when confronted with these transcripts.

Three rituals of the trial are discussed using examples from these three cases:

  • the ritual of civility,
  • the ritual of the script, and
  • the ritual of courtroom aesthetic and design.

The ritual of civility 

The courtroom expectation of civility regardless of context, requires a sexual assault complainant to maintain decorum, deference and reverence regardless of the inanity, insensitivity, invasiveness, or repetition of the questions she is asked.

The ritual of the script

The ritual of the script maintains an explicitly hierarchical form of communication in which lawyers (and judges) control the direction of the interaction and complainants follow, never the other way around.

The ritual of courtroom aesthetic and design

The ritual of courtroom aesthetic and design privileges professional voices over those of other trial participants (including complainants), and depicts the Canadian state (as represented through the judiciary) as Caucasian, colonial and primarily male. Together, the hierarchical nature of these rituals serves to reinforce the same gender, race and socioeconomic hierarchies that blame women for their victimization and perpetuate further gender based harms.

Can inhospitable courts be made hospitable?

The article concludes with an examination of the ways in which the sexual assault trial could be made more hospitable.

There are unavoidable aspects of a criminal trial that make it likely that testifying as a sexual assault complainant will always be difficult for most survivors.  With respect to these rituals, strategies could be adopted to minimize their negative impact on sexual assault complainants.

At the same time, there are rituals of the trial that perform no obvious, necessary function and should simply be rejected.

To use the conceptual framework of Therapeutic Jurisprudence (TJ) there are reforms that are both structural (the therapeutic design of the law itself (TDL) and application based (the therapeutic application of the law (TAL)) that are desperately needed in the particularized context of sexual assault trials.

For example:

  • the ritualistic language traditionally used to imbue the proceeding with solemnity should be modernized to make it more accessible for trial participants not advantaged by a legal background.
  • Courtrooms should be redesigned to remove unnecessary markers of hierarchy.
  • state supported practices that familiarize complainants with, and prepare them for, the rituals of the trial should be mandatory in all sexual assault proceedings.

These and other are concrete measures could be taken to make the sexual assault trial more hospitable to women.

Given rates of reporting, the prevalence of sexual violence, and the law’s legacy of discrimination in responding to sexual harm, it is incumbent upon the legal profession to begin realizing these necessary changes.

This blog is a précis of the article Elaine Craig, “The Inhospitable Court” (2016) 66:2 University of Toronto Law Journal 197  that can be downloaded here.

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