Elaine Craig argues that some lawyers need to change the way they talk about sexual assault
Sexual violence is an indisputable threat to the physical and mental health of Canadian women. The outcry in response to the discovery of rape chants on university campuses, the use of social media to harass and re-traumatize victims of sexual violence, and the allegations against high profile public figures, such as CBC radio host Jian Ghomeshi, has focused enormous public attention on the issue of sexual violence. In fact, the Premier of Ontario recently took the unusual step of reminding defence lawyers that victims of sexual assault cannot be interrogated for the way that they dress or for their sexual history. However, despite significant reforms to improve the criminal law’s response to sexual harm, conviction rates have not risen, and reporting rates remain dramatically lower than for some other types of violent crime. Sexual assault complainants continue to identify a lack of faith in the judicial system as one of the main reasons not to report their victimization.
An important aspect of the social problem of sexual harm involves the legal profession’s response to, and discourse surrounding, allegations of sexual harm. It matters how lawyers, who serve as significant actors in the criminal justice system, describe allegations of sexual violence, portray the law of sexual assault, and explain the available defences to charges of sexual assault. Today most lawyers have websites that advertise their legal services online. Examination of these websites offers a window into the narratives about sexual assault that some defence lawyers construct for their clients. Examination of these websites may also provide insight into the perspectives about sexual assault held by some defence lawyers themselves.
The most common claims about sexual assault found on the highest profile sexual assault lawyer websites in cities across Canada include:
(1) false allegations of sexual assault are far too common;
(2) sexual assault is prosecuted aggressively, if not more aggressively than other offences; and
(3) the justice system favours sexual assault complainants over the accused.
These claims represent a perspective about sexual violence that is not well supported by existing evidence about conviction rates or police charging practices. Instead, these claims represent a perspective that is reminiscent of problematic social assumptions about sexual violence, such as the expectation that women often lie about rape.
The most prominent sexual assault lawyer websites also contain content that may raise questions with respect to the ethical obligations of lawyers. While lawyers are entitled to engage in some commercial expression, their marketing practices, along with any other public statements that they make, are subject to special ethical constraints. The ethical codes governing lawyers in Canada prohibit misleading, deceptive, and inaccurate advertising. These ethical codes also prohibit advertising that is not in the best interests of the public or that is inconsistent with a high standard of professionalism. Lawyers also bear ethical obligations related to competence, confidentiality and promotion of the administration of justice.
Three examples of sexual assault lawyer marketing, found on Canada’s most prominent websites, that may contravene ethical rules include:
(1) marketing that trivializes the issue of sexual violence by using irreverent or cutesy language to describe a previous case or set of allegations;
(2) advertising that appears to promote the acquittal of individuals that are implied to, in fact, be guilty of gang rape or sexual assault of a minor; and
(3) advertising that misstates or offers misleading descriptions of the law of sexual assault, such as descriptions that suggest that sexual assault requires the use of physical force or that consent can be implied from the surrounding circumstances.
Again, it matters how lawyers talk about sexual assault.
In addition to the adverse physical consequences of non-consensual sex, sexual violence can have long lasting negative impacts on the mental health of those who are victimized. The prolific violation of sexual integrity in our society represents a social problem that demands systemic responses. Lawyers are permitted to self-regulate on the condition that they do so in the public interest. The legal profession bears some responsibility for developing strategies to respond to the profession’s role in perpetuating what continues to be a dysfunctional legal response to sexual harm. Law societies across Canada should take seriously their obligation to examine and, where necessary, take steps to shift the profession’s approach to, and discourse on, sexual assault.
To read more about this topic see: “Examining the Websites of Canada’s ‘Top Sex Crime Lawyers’: The Ethical Parameters of Online Commercial Expression by the Criminal Defence Bar”.