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I am only twenty-six years old and have survived two separate rape trials. During the first, just before I started law school, I travelled more than two hours by train to a Toronto courtroom every morning to testify while facing my rapist. “He said he was going to kill me,” I recalled. “I breathed in between him choking me.” My testimony was punctuated by the rhythm of his head shaking in disagreement under the white lights—it was his choreography. During a break, we passed each other in an empty hallway, as if we shared an office space. When I ran into his mother at lunch, she called me a “fucking joke.”
Like everything else over the past year and a half, the second trial happened virtually. Court online is less of a drama, more of a meeting. The lawyers, other witnesses, and I presented evidence from a grid of Zoom squares whose borders lit up when we spoke. The architecture of the typical courtroom produces relations of power: the gaze drifts naturally to the judge, who sits elevated above the gallery; the accused and Crown sit opposite each other, and the complainant has no formal place. But, on Zoom, the sunflower paintings hanging in my living room became the new courthouse backdrop. I didn’t have to spend hours travelling back and forth or see the accused in person. Instead, I placed a sticky note on my laptop screen to cover his face. Courtrooms are cold and uncomfortable; at home, I wrapped myself in a blanket and sat on my couch. A second scene played out around me: my pets whining and meowing for food, the whistle of my teapot reminding me to stand up and stretch. When I wasn’t testifying, I turned off my camera and vanished from the courtroom.
Studies by legal researchers have consistently shown that testifying remotely reduces the secondary trauma victims of sexual violence experience when going through criminal trials. But my trial from home was among the first of its kind in Canada. For decades prior, the judiciary claimed that a transition to video testimony simply could not be done—it would be too complicated, too risky. Yet, when the pandemic hit, the purportedly impossible process was implemented almost instantaneously. Despite the tangible benefits of this distanced form of witness bearing, as the country reopens, trials have already started to resume in person. But my experience does not have to be a historical anomaly. Instead, it could be the beginning of a new form of testimony in cases of sexual assault—a precedent rather than an exception.
People often assume that the goal of the criminal trial is to address the harm caused by the crime—to give the victim closure through punishment and the pursuit of justice. But that isn’t its function. Instead, a trial seeks to determine the truth with as much precision as possible, regardless of the consequences for its participants. “Overwhelmingly, our courts and our legal system are focused on denunciation and deterrence,” says Kate Puddister, an assistant professor of political science at the University of Guelph. “The victim is not a big part of either of those functions. Our legal system is set up to oppose the perpetrator and the state. Repairing harm to the victim is not a focus.”
Since the judicial hearings of ancient Babylon, it has been believed that, for the truth to be found, the credibility of those involved must be evaluated in person. Performance was an imperative part of the process. In medieval Europe’s trials by ordeal, which often involved water or fire, spectators observed an accused’s body language to determine whether they were guilty. The accused was sometimes commanded to walk three paces over a red-hot ploughshare or retrieve an item from the bottom of a pot of boiling water. Successful completion of these tasks signified innocence. This system of justice was altered during the European witch hunts. For a woman suspected of witchcraft, trial by water was used to determine whether she was guilty: if she sank, she would be acquitted; if she floated, she would be burned alive at the stake. More than 2,000 years after the early trials by ordeal, the judiciary still believes that performance is the best route to truth.
As Angela Davis writes in Rape, Racism, and the Myth of the Black Rapist, rape laws in the United States were written for the purpose of fortifying the nation after the abolition of slavery: they were built around the myth that Black men pose a threat to white women. In Canada, abduction and rape were historically interpreted as theft from the victim’s father or husband. It was the property of white men, not the victim, that was the central concern of Canadian sexual assault legislation, and marital rape was outlawed only in 1983. Today, the state still positions itself as the victim of violent crime.
All this made me wonder: What role, as the person who experienced the harm, did I play? When the first rape trial began, I thought that my place at the heart of the process would exhaust me. I imagined myself at the centre of a wheel of activity that would spin until arriving at a verdict. Instead, I was exhausted by my own adjacency to the courtroom’s analysis of the most violent event of my life. The closed system of justice attended to a fixed number of variables, and how I felt during the gruelling process was not one of them. (I’ve written this piece under a pseudonym for a similar reason: I don’t want the details of my trials to be permanently attached to my name.)
Elaine Craig, a professor of law at Dalhousie University, explains that, in court, survivors serve as witnesses to their assaults. “Sexual assault complainants—but for three exceptions related to production of third-party records, admission of private records, and sexual history evidence—have no unique role in the trial compared to other witnesses,” she says. “Offences are prosecuted in the name of the public, not the survivor.” In other words, the victim is considered no more than a bearer of evidence. They do not even have a lawyer. Instead, the lawyer who prosecutes the case represents the Crown.
If these are the conditions under which survivors testify, is it any surprise that the trial is often as traumatizing as the assault? In the decades before I went to digital court, there was already pressure from advocates to integrate video testimony into legal proceedings so that victims would not be made to sit beside their rapists. In 1988, testimonial aids—video testimony, a physical partition, or remote testimony—were legalized for minors in select cases, but since this excluded the bulk of survivors, lobbyists continued to push for better access.
When the Victims Bill of Rights Act passed, in 2015, conditions improved marginally. It promised victims access to information and protection from retaliation, but it left the structural processes of the trial unchanged. Up until the pandemic, it remained extremely difficult to maintain physical distance from the accused while testifying. The justification for mandated in-person testimony, just like in ancient Babylon, rests on the contention that the witness must be physically present in order for their credibility to be evaluated. In May 2018, when Canada’s Department of Justice hosted a knowledge exchange on the subject of testimonial aids, a prosecutor told the department that the judiciary still believes it receives a more candid account of a testimony if it can see “the fear, tears, and anxiety.”
Historically, victims have been granted a testimonial aid only if it’s believed that its absence will interfere with their ability to communicate accurately. In a landmark 1990 case, a twelve-year-old child testifying against her mother’s boyfriend requested to do so from behind a partition. She had been violently sexually assaulted multiple times by the accused and found it almost impossible to speak in his presence. While she was initially granted the aid, her abuser appealed the ruling and it was determined that the child would have to testify again—this time unobscured so that the court could better assess the legitimacy of her account. “An evidential base was lacking in this case,” the second judge wrote while approving the appeal. “The judge went no further than to show [that the victim] did not feel ‘comfortable.’” Not liking the accused, he added, was not a good enough reason. The comfort of the child was deemed legally irrelevant.
There are, however, ample psychological benefits for those granted the use of testimonial aids in court. Two surveys—one from 2002 and another from 2004—both found that victims who used testimonial aids were less likely to feel anxious or distressed in court. Some evidence also demonstrates that credibility cannot be discerned in person any better than it can on camera. Clinical psychologist Holly Orcutt writes that the “cues discriminating liars from truthtellers . . . are not signs of lying.” A witness afraid of confronting an abuser may display similar behaviours as a liar afraid of being caught, she adds. And video testimony can actually enable witnesses to offer more candid accounts. As a 2014 study by researchers at Simon Fraser University demonstrated, a survivor is often more likely to divulge information when they aren’t intimidated by the foreign environment of the courtroom or the gaze of their attacker.
But the Canadian judiciary is resistant to change. Today’s trials are still full of rituals that reveal the persistence of tradition: participants in the courtroom stand up to signify respect for the judge; the witness is elevated above the gallery when testifying; and, until last year, paper and pencils were used in place of computers.
“Before the pandemic, if you walked into a courtroom, it would have looked largely the same as it had 100 years prior,” says Puddister. “Canadian judges have been very conservative about the use of technology in the courtroom . . . . They’re concerned about the serenity of the courtroom, courtroom decorum.” To the judiciary, the courtroom is sacred. Judges have control over the administration of the courthouse and courtrooms in order to maintain that serenity. To change traditional practices, they argue, might engender a slippery slope to the loss of judicial independence.
So I found myself in a moment of historical strangeness when I was given technological access to the courtroom. This opportunity, which decades of advocacy had sought, materialized without my even asking for it. And, in my view, it preserved the sanctity of the courtroom entirely. Even without the elevation of the judge, she retained the freedom and authority to rule on whether the accused was guilty. I did not have to rise when the judge addressed me, but her words still carried weight. Electronic devices did not corrupt the courtroom. All these things made it easier for me, and my ordeal was much less trying than it could have been.
Despite all of this, these trials still do not seek to minimize harm. At my Zoom trial, a blood test confirming that I had a drug known to be used in date rapes in my system the night of the assault was never submitted as evidence. The judge ruled that the significant injuries I had sustained during the rape could be the result of consensual sex. The accused’s attorney, who berated me with invasive questions, argued that I had cried after the assault because I had realized that I’d had casual sex with a man I’d just met, with no clear memory of it. “I can only imagine how upsetting that would be,” he said to me. When I cried again during my testimony, he claimed it was because I remembered I actually had consented to the assault.
“Can we appeal?” I asked the Crown after the accused was acquitted. The Crown recommended against it. It was too late. The trial was over and I wouldn’t get another day in court.
Minimizing harm should start inside the courtroom, but to create safer spaces for survivors, we must look beyond it.
Even after the pandemic ends, plenty of institutions will continue providing digital access to their services, and remote work will likely become the new norm. Why should court be any different?
In March, a bill was introduced in North Carolina that would allow some victims of abuse to attend court virtually. It’s a good start, but if passed, it would apply only to those reinstating restraining orders. No such proposal exists anywhere in Canada. Instead, courthouses across the country started to reopen this past spring, with many changing their physical architecture to accommodate pandemic protocols and preserve the serenity of the courtroom. In Nova Scotia, criminal trials resumed in March, with partitioned jury boxes and sufficient space for witnesses and those accused to physically distance. Three months later, trials in Ontario followed suit.
Minimizing harm should start inside the courtroom, but to create safer spaces for survivors, we must look beyond it. For decades, restorative justice—which addresses the trauma caused by assault through meaningful reparations that happen outside of the legal system—has been praised as a victim-guided alternative to trials. “In the criminal justice system, survivors don’t have the chance to ask questions,” says Julie Schelter, a service coordinator with Community Justice Initiatives, a Canadian restorative justice nonprofit. “They reach out to us because they have questions only the person who harmed them can answer. One of the questions I hear most is ‘I want to know why this happened? Why me?’” Traditional legal trials, Schelter reflects, cannot answer that.
During the pandemic, restorative justice practices also moved online, allowing survivors and the people who harmed them to be brought together into a facilitated dialogue on Zoom. There have been inherent challenges: not everyone has privacy at home, and access to this technology is not universal. But operating virtually offers increased access for victims in remote locations and, similar to Zoom court, a more comfortable space for the-survivor to articulate the harm their attacker caused. Community Justice Initiatives will continue to moderate some digital restorative justice groups and facilitated dialogues even after COVID-19 restrictions are completely lifted, and it has integrated phone-in meetings for those who don’t feel comfortable with computers.
“Justice is very deeply wound in our minds as punishment,” says Sonny Dhoot, an assistant professor at Metropolitan State University of Denver. Restorative justice, on the other hand, is “a complex process of people unlearning. Restorative justice can be part of a larger reorganization of our society and relationships in a way that prevents people from being vulnerable to gendered violence.”
After he was acquitted, I shut my laptop and the courtroom vanished. Unsure of what to do, I lit a candle. The flame forked upward, casting warm light on my yellow sunflowers. There is a record of every admissible statement made during my digital trial, but it is not a truthful account—it omits the misery. Our modern world is still ancient in secret, and the trial by ordeal persists, testing women with water and fire.