Putting Trials on Trial: Sexual Assault and the Failure of the Legal Profession by Elaine Craig (review)

In Putting Trials on Trial: Sexual Assault and the Failure of the Legal Profession, Elaine Craig offers a compelling, timely, and empirically rigorous indictment of Canadian legal professionals for their collective failure to act lawfully and ethically towards complainants in sexual assault cases.

In Canada and beyond, public discourse on gendered sexual violence has reached a polarized zenith. While some add their voices to the flood of sexual harassment and assault allegations against powerful men, or express support for survivors, others worry about the consequences of vilifying accused individuals without the benefit of due process. Of course, allegations made through the media must be distinguished from formal criminal charges and the special protections they trigger. Perhaps the first question to ask, then, is why have survivors of sexual violence largely eschewed the criminal process in favour of other responses (such as speaking out publicly)?

It is here that Craig's book begins. Noting the "almost complete legal immunity" for sexual assault in Canada, due in part to very low levels of reporting, Craig explains that many women cite "distrust and fear" of the criminal justice system as their main reason for not coming forward to legal authorities (3). She then poses the question: "Is this fear well-founded?" (3) It does not take long for her to come to an answer. By page 6, Craig has already concluded, on the basis of compelling anecdotal evidence and social science research, that sexual assault trials continue to be seriously harmful and traumatic for complainants. Indeed, her main inquiry is not whether such harms exist, but how the legal profession contributes to them in ways that are unnecessary and that can be mitigated through changes to current legal practice.

For many in the legal community, this question will invoke a debate similar to the one that has emerged in broader public discourse. On one hand, the criminal justice system's response to sexual assault complainants has proven deeply unsatisfactory. But how can this be addressed without weakening the rights of the accused so fundamental to our justice system? Craig's book succeeds largely because she is able to transcend this basic tension. Rather than try to weaken the presumption of innocence or the accused's right to a fulsome defence in sexual assault cases, Craig affirms their importance without hesitation (13; 181–82). Still, she argues, there are things we can do to improve the experience of complainants that do not at all detract from these fundamental protections (and that may in fact promote them). As she puts it, "[T]hese changes could be achieved without having to confront the difficult (and controversial) proposition of balancing the rights of the criminally accused with those of their victims. A failure on the part of the legal profession to assume responsibility for reforms of this nature is inexcusable" (15).

That this is not a radical project is precisely what makes it so compelling, and so hard to ignore.

Craig's book expertly combines a wealth of empirical evidence about sexual assault lawyering and judging in Canada with astute theoretical analysis, leading to a set of informed and pragmatic prescriptions for improvement. The book proceeds in three parts, aimed at examining the role of three distinct legal actors in sexual assault trials: criminal defence lawyers (Chapters Two to Four), Crown lawyers (Chapter Five), and judges (Chapters Six and Seven). Craig begins, in Chapter Two, by scrutinizing a number of claims put forward by members of the defence bar to the effect that recent, feminist-driven changes to the law and culture of legal practice not only protect complainants from abusive and discriminatory tactics, but actually tip the scales unfairly in their favour. To debunk these claims, Craig provides numerous recent examples of lawyers pursuing so-called "whack the complainant" tactics and defying legal protections meant to prohibit reliance on discriminatory stereotypes.

Craig goes on, in Chapter Three, to...