Putting Trials on Trial by Elaine Craig

Author:Elaine Craig
Language: eng
Format: epub
Publisher: MQUP
Published: 2017-03-13T04:00:00+00:00

Preparing Complainants for Trial76

All trial participants should be prepared. As many lawyers will say, one of the most critical aspects of performing as an advocate is preparation. This includes preparing one’s witnesses. As Alice Woolley notes, a “lawyer acts both negligently and incompetently if she fails to prepare witnesses for the rigours of an adversarial proceeding.”77 Sexual assault complainants, because they bear a unique vulnerability, require particular types of preparation. To be clear, this vulnerability flows not from some inherent susceptibility shared by those who experience sexual violence, but as a consequence of societal inequalities based on gender, race, disability, and class that are reiterated in the way law responds to violence against women. As Elizabeth Sheehy writes, “‘Vulnerability’ here is created by the nature of the offence and its legal treatment: in other words, offences of male violence against women and children are premised upon their inequality, which is in turn exacerbated by the legal processing, including the ‘rules’ or lack thereof with respect to the examination of witnesses.”78

Unfortunately, sexual assault complainants are often woefully unprepared for the criminal trial process.79 The specialized language used, the roles of particular parties, the courtroom procedures, and the trial process more generally will be unfamiliar to many sexual assault complainants. Consider, for example, the complainant in Finney. Her lack of familiarity with the process is evident from the transcript:

[CROWN] Q. Okay. And do you recall whether he had a heart attack during a preliminary inquiry in this matter?

[COMPLAINANT] A. I’m not sure what a – a preliminary inquiry is, but I was in this situation while he had his second heart attack, yes.

Q. Oh, so you were in a situation where you were giving evidence in a court?80

At trial she was cross-examined at length about details from her testimony years earlier at the preliminary inquiry. Ultimately, the complainant acknowledged that she had never actually read the transcript of her preliminary inquiry testimony.81

Many complainants come to court unrepresented, without having completed even basic preparation such as a review of their statement to the police or their testimony at a preliminary inquiry. Even when Crown counsel has established a rapport with the complainant, the obstacles to properly preparing sexual assault complainants are substantial. Some complainants understandably do not want to revisit the sexual assault, let alone contemplate and discuss it in detail over and over again. As noted, avoidance is a common response to traumatic experiences. For some complainants, testifying about their experience(s) of sexual violation will run counter to the coping mechanisms they have developed to survive the experience. This was clearly the case for the complainant in Khaery. In this excerpt from the cross-examination in Khaery, defence counsel questioned her on details from her police statement:

Q. MR. RAUF: – have you told us everything about the sexual activity that took place on that occasion?

A. Yes. That I can recall.

Q. Did you – you watched your videotape?

A. A portion of it.

Q. Well, you spent a good portion of the morning watching your videotape statement.

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