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

Researchers confirm that sexual violence has long-term implications. For survivors, the negative effects and impacts on daily life are often long lasting, even catastrophic. While details of the direct physical and psychological trauma are disconcerting, other findings are equally disquieting. Numerous studies have established that the responses by social systems often amount to secondary victimization to the primary trauma, given the indifference and disrespect afforded survivors. In a 2008 study, Rebecca Campbell reminded us that survivors are vulnerable to "disbelief, blame, and refusals of help" when they attempt to access assistance from legal, medical, and mental health systems. ¹ According to Campbell, survivors who can gain access to supportive agencies that respond in an "empathetic, supportive manner" are enabled in their recovery. ² Those who cannot obtain needed supports or who are treated insensitively report that their feelings of "powerlessness, shame, and guilt" are magnified. ³ Given these findings, constant re-evaluation of professional and policy responses to sexual violence is particularly important. A decade after Campbell's study was published, researchers, including Dalhousie law professor Elaine Craig, who wrote the book under review, continue to document systemic failures.

As this text will reason, Craig makes an important contribution to this ongoing evaluation. In the 2018 publication Putting Trials on Trial: Sexual Assault and the Failure of the Legal Profession, Craig scrutinizes the Canadian legal system and its professional actors to determine ways that prosecutions undermine survivors, even after decades of reforms that have promoted more responsive systems. ⁴ Comprised of eight chapters, the book carefully introduces the reader to a range of subjects from general points on sexual assault prosecutions to a discussion of the responsibility owed to sexual assault complainants by formal systems charged with determining appropriate responses to harm. In the opening section, Craig points out that, although Canada proclaims commitment to human rights, sexual violence remains one of the most hidden crimes, at least in terms of official statistics. Drawing from the case law, trial transcripts, and qualitative interviews, she sets out to discover whether the criminal justice system's reactions to this crime are factors that discourage survivors from coming forward.

Craig was motivated to conduct this study by a desire to expose and interrogate the gaps between the relatively progressive laws that appear on the books and the practical implementation of these laws. She explains that putting lawyering strategies to sexual assault cases "on trial" is a sound research aim. ⁵ This is so because the rates of reporting remain stagnant, survivors remain fearful of re-victimization, and discriminatory stereotypes routinely inform lawyering and judging practices. ⁶ Craig recognizes that sexual assault trials are not intended to offer physical or psychological recovery to complainants. At the same time, she maintains that the legal profession could take steps "to make sexual assault trials less stressful, less traumatizing, and less inhumane." ⁷ The fact that prosecutions supposedly occur in the public interest mandates particular consideration of those most in need of legal redress.

In her book, Craig meticulously sets out evidence supporting her assertion that prosecutions typically enhance, rather than address, the harms experienced by complainants. One alarming finding is that fair standards on the delivery of justice are routinely ignored even in the relatively few cases that proceed to prosecution. This is problematic because adherence to these guidelines might buffer survivors from the acute anguish they often experience that goes beyond the general discomfort of participating in an adversarial proceeding. Prosecutions also fail to comply with sexual assault laws that govern consent and that restrict the admission of certain evidence that prejudices complainants. Craig poignantly illustrates that survivors' experiences remain unsatisfactory. Notably, few of the personnel she interviewed would encourage a family member to undergo a criminal prosecution.

While under-reported, Craig demonstrates that sexual assault is over-defended in that victims are vigorously interrogated on their conduct, their accounts of the incident, and even their...