“Unfounded”- An Examination of the Globe and Mail Series on Sexual Assault

Posted by  on February 7, 2017
“Unfounded”- An Examination of the Globe and Mail Series on Sexual Assault

Keg stands, belligerent drinking, loud music and sex are often seen as hallmarks of college and university parties. However, the police’s reasons to march in and break up these celebrations are not solely based on noise complaints from neighbours trying to sleep. Sexual assault is far too common. Nevertheless, an average of 1 in 5 sexual assault claims in Canada are deemed “unfounded” by the police. Unfounded is the term used by the police to classify allegations that are deemed to be baseless; in other words, no crime has been committed. After conducting a lengthy cross-country investigation, the Globe and Mail published an article entitled “Unfounded” (click here to read the article), highlighting the problems with sexual assault investigations, which prompted authorities to conduct internal reviews of police protocols and “unfounded” cases. One of these cases was Ava’s.

Ava was 18 years old when she was raped at a kegger while attending Western University. She had been drinking throughout the night, as many students do. At some point during the party, Ava had blacked out as a result of her alcohol consumption. When she awoke, she found herself lying naked on the floor outside, with a stranger inside of her. Despite telling him that he was hurting her and to stop, the perpetrator continued to rape Ava. What was more disheartening about these events is that rather than coming to Ava’s aid, bystanders were more interested in capturing the sexual assault on their cellphones. It wasn’t until the police arrived that the gruesome attack stopped. The assailant had made his escape before he could be arrested. Furthermore, the police distinguished Ava’s case as unfounded, as they did not believe her allegations.

Trauma experts have made it clear that the police’s interview with Ava was a quintessential example of everything that should NOT happen during a sexual assault investigation. Instead of fostering a sense of trust and security, the officer conducting the interview carried out his own agenda, which was finding gaps in Ava’s story to reinforce his own stereotypical beliefs about these events. Appreciation of how individuals that have suffered trauma recall memories was severely lacking. This flaw, in conjunction with inadequate police training, out-dated interviewing techniques, and deeply entrenched rape-myths among law enforcement officials largely account for the disproportionate amount of cases that are marked as unfounded. Ava’s case is one of more than 5,000 allegations of sexual assault that are closed by the police every year because they think they are unfounded.

Even after the sexual assault has taken place, women are sometimes subjected to cruel treatment from law enforcement authorities, whose very job is to protect them. Complainants are riddled with questions that insinuate that they are lying, and in some instances, are even threatened with charges of public mischief by the police if they do not withdraw their allegations. This atmosphere of oppression significantly acts as deterrent to the already low reporting sexual assaults. Statistical analysis undertaken by the Globe and Mail revealed that the national rate of unfounded cases is a striking 19.39%. The percentage varies from province to province and city to city. The highest rates of victimization are among students, single woman, and females between the ages of 15 and 24 living in urban areas.

In order to improve the way sexual assault investigations are conducted, increased training regarding proper interviewing techniques, the psychology of victims, and cultural competence needs to occur. For instance, the current practice by police is to interview the victim about the allegations as soon as possible while the events are still fresh in their mind. However, the clearest picture of the incident sometimes can only be discovered after some time has passed. Victims of sexual assault often have lapses in memory right after the events have transpired. There are several reasons for this: first, victims are often tired, haven’t eaten or slept, and may feel ill from the effects of alcohol or drugs. Second, science shows that stress hormones that cloud the brain during the incident also distort memories, which can take up to 72 hours to leave the brain. Consequently, it only makes sense to question victims a few days after the report has been made. Otherwise, victims do not have access to all of their memories, and in turn their statement may not seem credible to police.

Similarly, police officers need to gain a better understanding of the different behaviour victims may exhibit after experiencing a traumatic event. For example, some complainants may laugh while recounting their story. Some police officers have interpreted this behaviour as a sign that the allegations are malicious or mistaken. Nonetheless, trauma specialists have noted that laughter is not uncommon victim behaviour; it can result from the nervousness complainants feel when talking to the police. Ava’s case was eventually deemed founded, and if the police become more trained in handling sexual assault investigations, unfounded cases can become the outliers, not the trend.

The bottom line when it comes to sexual assault cases is this: in most cases, there are only two people who were present at the scene of the alleged sexual offence and know what really happened. When an offence is reported to police, third parties have to decide whether the complaint should result in criminal charges (the police); whether the charges should be prosecuted (the Crown attorney) and whether the defendant is guilty (the judge or jury). This is not an easy exercise. It is fraught with subjectivity, and often hampered by the lack of hard evidence: “he said/she said “cases are often notoriously difficult to prove. As a result, in making these subjective decisions, these third parties often get it wrong.

Over the years, legal rules have been developed to try to take improper stereotypes and attitudes out of the trial process. What this investigation shows is that improper thinking about sexual assault not only occurs at the trial stage; it happens at the outset when a complaint is reported to police. Proper training and education of police would be a good start when it comes to addressing the problems that sexual assault victims face when coming forward. Properly trained police, prosecutors and judges will hopefully ensure that the guilty- and only the guilty- are punished, and that the victims are treated with respect and compassion during the legal ordeal.

At the same time, in seeking better justice for victims of sexual assault, care must be taken not to erode the protections that are necessary to prevent wrongful convictions. Compensating for past mistakes in the handling of sexual assault complaints by making it easier to convict defendants is not the way to deliver justice. Trying to find the proper balance is not an easy task, which is why investigations such as the Globe’s “Unfounded” series, and public conversation about the issues surrounding sexual assault, are so important in reinforcing our values as Canadians- of life, liberty, and security of the person.

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Arun S. Maini, lawyer and founder of The Defence Group, has practised criminal law since 1995. He’s a graduate of the University of Toronto and Dalhousie University Law School. After completing his articles at a Bay St. law firm, Mr. Maini joined the federal Department of Justice as a prosecutor of drug trafficking, tax evasion, and immigration fraud cases in Toronto, Brampton and Vancouver. In 1999, Mr. Maini transferred to the provincial Crown attorney’s office in Brampton, where he prosecuted a wide range of criminal offences, from theft to murder. In 2003, Mr. Maini left the government to establish The Defence Group. Mr. Maini handles all criminal offences and regulatory prosecutions.

Over more than 25 years as a criminal lawyer, Mr. Maini has prosecuted and defended hundreds of criminal cases, and has extensive jury trial experience. Mr. Maini has also lectured at The Advocates’ Society and has taught advocacy at the Law Society and Osgoode Hall Law School’s Intensive Trial Advocacy program. Maini appears occasionally in the media to comment on criminal law – see examples from the CBC, the Toronto Star, and the National Post.

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