Law group lobbies for ‘avenues to justice’ beyond criminal prosecutions for sexual violence

By Cristin Schmitz

Law360 Canada (November 16, 2023, 9:52 AM EST) -- The unmet needs of sexual assault complainants in criminal prosecutions – who seek healing, reparations and control — are fuelling growing demand for non-criminal “avenues to justice” focused both on improving survivors’ experiences in the aftermath of sexual violence and on promoting accountability and rehabilitation for perpetrators, according to a new research report by the Women’s Legal Education and Action Fund (LEAF).

“For too long, Canada’s criminal legal system has failed survivors of sexual violence. It’s time for survivors to have more effective avenues to justice,” LEAF argued when it unveiled its research report, “Avenues to Justice: Restorative & Transformative Justice for Sexual Violence” Oct. 19.

The feminist legal advocacy group points out that just five per cent of sexual assaults are reported to police, hardly a surprise since many survivors who have turned to the criminal justice system as their only option have found it to be traumatizing and revictimizing.

Pam Hrick, Women’s Legal Education and Action Fund

Pam Hrick, Women’s Legal Education and Action Fund

“Survivors and advocates have known for decades that the default response to sexual violence is not adequate,” Pam Hrick, LEAF’s executive director and general counsel, said in a statement. “We also know there are many well-established mechanisms to meaningfully address violence — they’re simply not well known, are inadequately funded and, in some cases, are even prohibited from being used in legal cases. This research shows that justice for many more people is possible if we also look outside the criminal legal system.”

LEAF’s research report argues restorative-transformative justice (RJ/TJ) processes — which exist on a continuum and are non-adversarial and “recovery-centric” — should be available and offered as options in cases of sexual violence (see some examples below).

“Instead of pitting the parties involved against one another, the person who was hurt and the individual that hurt them are brought together in some manner to discuss what happened and what must be done in the aftermath of the violence,” the report states. “Responding to the harms of sexual violence in an RJ/TJ process, therefore, can be substantially broader than the methods taken in courts. As the purpose is to address the needs of the parties involved — and unlike the criminal law where survivors are just witnesses — punishment is not the primary focus of RJ/TJ.”

And by contrast to criminal prosecutions, where many sexual assault complainants have experienced privacy intrusions, gruelling cross-examinations and biases based on discriminatory myths and stereotypes, RJ/TJ processes can offer survivors more participation and control “and include more opportunities for validation than are usually offered in the conventional legal system,” the LEAF report states.

Healing the harm experienced by survivors; achieving perpetrator accountability and preventing future sexual violence are key aims, the report states. “RJ/TJ processes are meant to offer remedies to the harm and to prevent future violence by addressing the causes of the behaviour,” the report explains. “The needs of both the responsible person and the survivor are considered as this is the only way to ensure that past harm to the individual and oftentimes the broad community is repaired, and future harm is prevented. ... For example, it has been an increasing concern that incarceration is not an effective tool for preventing future criminal behaviour as it does little to address the reasons why violence occurs, nor does it give offenders the skills and resources they need to better themselves. Prisons are also frequently a site of sexual violence themselves.”

LEAF points out, however, that there are several legal barriers restricting or barring altogether the availability of RJ/TJ in cases of sexual violence. Notably, many provinces, such as Ontario, have imposed “moratoriums” that don’t allow sexual violence cases in the criminal justice system to be diverted into an “alternative measures” program under s. 717 of the Criminal Code.

As well, sexual assault survivors and those who committed the sexual violence need legal protection so that their admissions and disclosures during the RJ/TJ process do not expose them to legal jeopardy in other civil or criminal proceedings, the LEAF report says.

Absent effective legal protections, a perpetrator admitting to their actions and taking responsibility in an RJ/TJ process could end up criminalized, while a sexual assault survivor might fear a defamation suit if the person who sexually violated them denied the allegations. Moreover, not all RJ/TJ processes are connected to the s. 717 regime, “leaving practitioners to engage in piecemeal and legally untested forms of confidentiality agreements to protect their participants,” the report states.

LEAF is advocating that governments re-evaluate the moratoriums, with the goal of ending them in criminal proceedings. The group is also pushing for long-term and sustainable funding for RJ/TJ programs specific to sexual violence, including ongoing supports such as counselling services “or other culturally appropriate modalities of healing for survivors and people who cause harm.”

Hrick told Law360 Canada LEAF has already started to lobby legislators to implement the report’s recommendations.

“At this point, we have met with several federal MPs across party lines to share our report and have productive preliminary conversations about our findings,” she said. “We anticipate shifting our focus to advocacy at the provincial level over the coming months.”

“We will be encouraging governments to act on all of our recommendations to enhance access to restorative justice and transformative justice for sexual violence,” Hrick added. “One barrier we face is the perception that restorative and transformative justice processes are ‘lenient’ responses to sexual violence. We are hoping to help dispel that notion and demonstrate that these processes have the potential to respond to the needs of survivors while ensuring accountability for those who have caused harm and helping to prevent future harm.”

In that regard, the organization hopes “to see more engagement from governments, Crown counsel and defence lawyers to explore the potential of greater access to restorative and transformative justice for sexual violence,” she said. “This is what we’ve heard many survivors asking for. It also builds on, and amplifies, the work on restorative justice and transformative justice that has been led by Black, Indigenous, queer, trans and sex worker communities for years.”

The group also recommends that the free independent legal advice (ILA) programs provinces now provide to sexual violence survivors “must be expanded, better funded, and made permanent if still only in pilot form.”

“ILA is critical for survivors to make educated decisions on how they want to proceed following sexual violence or to provide guidance on their involvement in the formal legal system,” advises LEAF.

The group also advocates that ILA should give survivors information enabling them to make informed decisions about engaging in a restorative/transformative justice process.

“ILA programs need to be developed in collaboration with anti-violence organizations that can oversee the program as well as provide guidance on the appointment of approved legal counsel,” LEAF says.

The research report identifies a number of RJ/TJ processes, such as:

  • Victim-offender mediation where, with the help of trained mediators, the parties discuss sexual violence, its impact  and “identify resolutions to address the harm” — which may include indirect contacts such as the exchange of letters;
  • Community justice committees (currently operating in three Inuit Nunangat regions) which an accused or person on probation can access through the alternative measures program under s. 717 of the Criminal Code;
  • Victim-offender panels/ surrogate restorative justice, in which a party can engage in open discussion with a surrogate when the survivor or person who engaged in sexual violence is unable or unwilling to participate. For example, a survivor might converse with someone who caused similar harm, or an offender might speak with a different sexual assault survivor;
  • Restorative conferencing, whereby supporters (friends, family etc.), the survivor of sexual violence and the perpetrator, “all work toward reparation,” guided by a trained facilitator or mediator;
  • Victim impact panels, in which a group of survivors of sexual violence speak to a person who has caused the harm about the impacts the survivors experienced in their own situations;  
  • Healing circles, sometimes in conjunction with circle sentencing, led by a “circle keeper” and rooted in Indigenous legal traditions and approaches to healing; and
  • “Pod systems of accountability” — whereby small support groups are organized for both the survivor of sexual violence and the person who caused the harm to help them heal individually and work toward redress for the harm.

LEAF said proponents of restorative and transformative justice want such “avenues to justice” to be considered not only if the criminal justice approach fails, “but as an equally important and valid approach to take, depending on the needs of the people involved.”

The report’s authors, academic researchers Tamera Burnett and Mandi Gray, were advised by a panel of seven experts, including lawyers who work with sexual violence survivors and grassroots community workers. The pair analyzed literature on restorative and transformative justice here and abroad, along with the comparatively scarce case law on alternative measures under s. 717 of the Criminal Code. The researchers also interviewed people working on the front lines of responses to sexual violence, including Crowns and private bar defence counsel across Canada.

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