flowchart to illustrate the maze of sexual assault investigation & trial
April 14, 2016 8:56 AM   Subscribe

A flowchart illustrating the flaws involved in investigating and prosecuting a sex assault case, from the point of view of the woman assaulted. In the wake of new information about how Ottawa police and the criminal justice system handle reports of sexual assault, Metro looks at what the process can be like for a woman to report such incidents. Blair Crew, who teaches sexual assault law at the University of Ottawa, and Sunny Marriner, executive director of the Ottawa Rape Crisis Centre, say there are flaws in the process, as outlined below. Importantly, each victim's experience with the criminal justice system is unique.
posted by hurdy gurdy girl (22 comments total)

This post was deleted for the following reason: Sorry for the late delete; this is pretty thin, the flowchart framing is leading to a reductive discussion, we've had a LOT of sexism and rape threads lately, and the discussion isn't starting very well, so I don't think there's anywhere productive for this to go. -- Eyebrows McGee



 
I'm disappointed that TorStar, which owns Metro, isn't running this in their real papers.
posted by feckless fecal fear mongering at 9:30 AM on April 14, 2016 [1 favorite]


A lot of the "flaws" in this case, such as the accused right's not to speak to the police and that the alleged perpetrator have defense counsel seem to be pretty basic civil liberties. The "flaw" that a Sexual Assault Evidence Kit doesn't prove lack of consent is just basic physics.

The impression that I get from this flowchart is that the only "process" that the maker would be happy with is is "Accusation -> Conviction" and they aren't interest in due process or fairness at all.
posted by bswinburn at 9:48 AM on April 14, 2016 [3 favorites]


That's such an uncharitable reading that it almost seems deliberate, bswinburn.
posted by Kutsuwamushi at 9:53 AM on April 14, 2016 [3 favorites]


I think that's a result of using the word "flaw", bwsinburn, rather than the rather-less-punchy "issues that make the process more difficult or unpleasant for victims." I'd have preferred a different word than flaw as well since that implies that they are things we can/should change and, as you say, some of them are basic issues of civil liberties. But I don't know what one word could have been substituted for "flaw".
posted by Justinian at 9:54 AM on April 14, 2016


I thought some of the flaws are actual flaws, whereas some are unavoidable or would be worse if you tried to fix them. The most fixable issues seems to avoid traumatizing the victim more - don't have the police interrogate them so aggressively or with the presumption of a false accusation, and don't let the defense force them to testify over and over
posted by Mitrovarr at 9:56 AM on April 14, 2016 [2 favorites]


"Flaw" is really the wrong language here, as it implies a simple obvious problem, which these are not. It also implies an easy fix, which does not exist. Finally, it also seems to assume a perspective which is quite hostile to the presumption of innocence, which is not a productive line of argument (ie. placing right to silence as a flaw).

These issues are incredibly complicated, and the changes that need to happen have to be balanced very thoughtfully. This article and info graphic give some insight into the victim's perspective on the system, but the presentation really undercuts its effectiveness.
posted by ordinary_magnet at 10:01 AM on April 14, 2016


Are we sure this is not a parody unfairly characterizing victims' rights advocates as people who are actively opposed to due process and inalienable rights?
posted by The World Famous at 10:04 AM on April 14, 2016


That's such an uncharitable reading that it almost seems deliberate, bswinburn.

Not at all. For example, one of the "flaws" reads: "The number of times a victim may be questioned or cross-examined on her account can exceed 10, while the accused can't be compelled to take the stand."

The right of the accused to not be compelled to testify is such a bedrock principle of any legitimate justice system, enshrined in both the Canadian Charter of Rights and Freedoms and the US Constitution, that if it's a "flaw" then it's questionable whether these people are interested in justice at all.
posted by Sangermaine at 10:14 AM on April 14, 2016 [2 favorites]


I have a hard time seeing how the presumption of innocence on the part of the accused can be maintained without due process. That being said, I see a lot of opportunity for more support for individuals who report being raped while being able to maintain due process. Things like allowing counselors to be present, allowing use of videotaped testimony, etc. Of course, IANAL and there may be good reasons why those things are easier said than done. It's also important to note that supporting people who have reported sexual assault is not equivalent to the legal system reaching a guilty verdict and punishing the accused. A much lower barrier to these people receiving meaningful support would be an important step as well.
posted by fraxil at 10:20 AM on April 14, 2016 [1 favorite]


In fact the chart casts any attempt to get information from the victim, or any attempt by the defense to question the information given, in a sinister light, as if the very act of the accused defending themselves is wrong.
posted by Sangermaine at 10:20 AM on April 14, 2016 [1 favorite]


A lot of the "flaws" in this case, such as the accused right's not to speak to the police and that the alleged perpetrator have defense counsel seem to be pretty basic civil liberties.

Actually, the flaw listed is "if the accused refuse to be interviewed the whole case might stop there." The flaw isn't the right to refuse to speak to the police, it's that the police take that refusal as an excuse to close the case. The flaw regarding counsel is counsel using aggressive questioning to intimidate women away from the process.

Your comment is completely disingenuous.
posted by Bulgaroktonos at 10:24 AM on April 14, 2016 [4 favorites]


You guys (and it's always guys) realize that this abstracting out into legal principles is yet another way the legal system--indeed, all of society, dominated as it is by straight cis men--fails, in the most profound way, any woman with the guts to come forward?
posted by feckless fecal fear mongering at 10:24 AM on April 14, 2016 [2 favorites]


Does the act of abstraction always intrinsically support a dominant, pathological culture (in this case, as FFFM notes, straight cis-men)? Should we end abstraction as a mode of discourse and as a fundamental way that societies encode law and justice?

Or do we need to do abstractions better?
posted by lalochezia at 10:30 AM on April 14, 2016


Actually, the flaw listed is "if the accused refuse to be interviewed the whole case might stop there."

Holy shit is this a big difference! Imagine if we stopped prosecuting homicides or even robberies because the prime suspect didn't want to talk to the police? "Well, s/he's said s/he doesn't feel like chatting, so I guess we have to stop there! Nothing to be done, sorry about your dead family member/property! We sure hit a dead end when this person didn't want to help us with our inquiries. Guess as police we're out of options now!".

Jesus Christ, presenting "police drop case because accused is not actively making their job easier" as "advocates against sexual assault don't support civil liberties" is super gross.
posted by Mrs. Pterodactyl at 10:32 AM on April 14, 2016 [7 favorites]


Abstracting out into legal principles? This is the LEGAL SYSTEM we are talking about, it's MADE out of legal principles! You cant just ignore them or argue as if they don't exist - they make up the very environment this debate takes place in.

There is no question that changes are needed, but statements like this turn allies into enemies. You have to work within the system you are reforming to some degree, barring total upheaval (which would be an incredibly unpopular and unrealistic option).
posted by ordinary_magnet at 10:32 AM on April 14, 2016


Your comment is completely disingenuous.

Again, no. The only comments being disingenuous are the ones refusing to engage the actual problems of the chart.

With regard to the interview of the victim, information is needed to prosecute a case. Very often there isn't physical evidence. If there is no physical evidence, and the victim refuses to be interviewed, on what basis can a prosecution can occur? What would the defense be able to address if there is no information given beyond their accusation?

Holy shit is this a big difference! Imagine if we stopped prosecuting homicides or even robberies because the prime suspect didn't want to talk to the police? "

If there were no evidence of a homicide or a robbery beyond the victim's statement, and the victim refused to give it (or in the case of homicide, can't give it), then yes we probably wouldn't prosecute. Homicides and robberies usually do have physical evidence, though, so it's less of an issue.

With regard to counsel, one flaw states: "If a victim discloses new information while the investigation is ongoing, she will be cross-examined heavily on this "new" statement and the defense tactic is often to suggest that she's begun tailoring her story over time."

This is literally how defense works and is supposed to work. The defense is going to try and poke holes in the prosecution's case, and one basic way to do that is to highlight conflicts and contradictions. If this is a "flaw" then the defense is almost completely crippled.

You guys (and it's always guys) realize that this abstracting out into legal principles is yet another way the legal system--indeed, all of society, dominated as it is by straight cis men--fails, in the most profound way, any woman with the guts to come forward?

This in itself is abstracting out to avoid addressing the specific points brought up. Can you address the specific problems raised regarding specific "flaws" given in the chart, and how they can be addressed without destroying fundamental civil liberties?
posted by Sangermaine at 10:34 AM on April 14, 2016


So at least, we can all agree that without video evidence, rape is currently something anyone can get away with as long as they don't leave physical injuries?

A "fair" system is one in which rape is not something that can be persecuted without video evidence. So "justice" means rape is permissible as the default.

I do hope there are enough men in here to explain why this is sad but the best we can do.
posted by xarnop at 10:34 AM on April 14, 2016 [1 favorite]


This is literally how defense works and is supposed to work. The defense is going to try and poke holes in the prosecution's case, and one basic way to do that is to highlight conflicts and contradictions. If this is a "flaw" then the defense is almost completely crippled.

Uh, the person you're addressing is a lawyer and used to be a public defender. He knows how criminal defense "works and is supposed to work".

There's a big difference between "getting information from a witness, even a reluctant one, to argue the facts of the case" and "using your position as a defense attorney to endeavor to intimidate people." One is being a lawyer, the other is being a fucking asshole.
posted by Mrs. Pterodactyl at 10:41 AM on April 14, 2016 [4 favorites]


Most of what's described as a FLAW (in capital letters) in this flow chart is absolutely fundamental to the principle that the accused is assumed innocent until proven guilty. Where our zeal to convict is commensurate with the egregiousness crime, we seem to be inclined to run roughshod over the legal process.

We shake our heads with dismay when we hear tales of false convictions and overzealous prosecutors and law enforcement, and in the next moment we see due process itself as unjust.
posted by huron at 10:41 AM on April 14, 2016


statements like this turn allies into enemies

If I have to coddle you to keep you as an ally, you weren't one in the first place. The law, as it stands, is hurting untold numbers of women (and some men, yes, let's head that derail off please) by making sure that they get treated like garbage if they even bother to come forward.
posted by feckless fecal fear mongering at 10:41 AM on April 14, 2016 [5 favorites]


We shake our heads with dismay when we hear tales of false convictions and overzealous prosecutors and law enforcement

Things that never actually happen with sexual assault, so.
posted by feckless fecal fear mongering at 10:41 AM on April 14, 2016 [1 favorite]


That's such an uncharitable reading that it almost seems deliberate, bswinburn.

Shocking
posted by beerperson at 10:42 AM on April 14, 2016 [2 favorites]


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