Law360 Canada (June 12, 2026, 11:43 AM EDT) --

Deepa Mattoo

When a survivor of sexual violence steps forward to engage with the criminal justice system, they do so under the comforting myth of state neutrality — the belief that the law exists to heal a breach, discover the truth and deliver accountability. Yet, for decades, feminist legal scholarship and the lived realities of survivors have told a radically different story.

In 1989, sociologist and legal scholar Carol Smart introduced a vital conceptual framework that continues to demand our attention: juridogenic harm. Just as the medical world acknowledges iatrogenic harm — illness or injury directly caused by the physician or the medical treatment itself — Smart illuminated the law’s unique “juridogenic potential.” In the context of sexual assault, juridogenic harm is the profound psychological, systemic and physiological trauma actively inflicted upon a survivor by the very legal apparatus designed to offer a remedy.

Today, there is an undeniable academic and advocate consensus: the traditional adversarial courtroom is not a neutral arena. It is an active site of secondary victimization. The law demands a linear, flawless and chronological narrative of a traumatic event that the human brain under acute threat is biologically incapable of producing. When the legal system treats the natural, physiological markers of trauma — such as fragmented memory or tonic immobility (the involuntary freeze response) — as badges of fabrication, it inflicts a deep institutional betrayal. To adjust to this reality, we must accept that comprehensive survivor support and exhaustive, mandatory legal education for all judicial actors are no longer progressive options; they are immediate, baseline operational necessities.

The intersectional crucible: Weaponizing identity

The weight of juridogenic harm is not distributed equally. For marginalized, racialized, immigrant and non-status survivors, the operations of the justice system do not merely complicate the pursuit of equity — they can actively weaponize a survivor’s existence against them.

For a non-status or precariously housed immigrant survivor, the decision to report an assault introduces a terrifying, paradoxical threat. To seek protection from the state means stepping directly into the gaze of state authorities, bringing with it the acute, paralyzing risk of immigration enforcement, detention or deportation. In these instances, the “legal remedy” itself poses an existential threat to survival.

Furthermore, the adversarial trial relies heavily on highly specific, Western and middle-class expectations of storytelling and demeanour. For racialized and immigrant women, linguistic barriers, the use of interpreters and culturally distinct expressions of trauma are routinely targeted by defence counsel during aggressive cross-examinations to construct an illusion of “inconsistency.” Because these communities have historically experienced systemic over-policing and simultaneous under-protection, entering a contemporary Canadian courtroom means confronting a well-founded distrust of the institution itself. The juridogenic toll here is compounded; the system reinforces the survivor’s marginalization at every stage of the process.

Beyond expectations: Building the tools for a restorative future

Systemic reform cannot remain a passive expectation or a distant policy checkbox. It is an active, living reality that we must have the courage to imagine and collectively construct.

We already possess powerful, foundational tools that demonstrate what is possible. Programs offering Independent Legal Advice (ILA) and Independent Legal Representation (ILR) across Ontario and other Canadian jurisdictions have proven to be incredibly useful interventions. They inject a dedicated, independent legal ally into a hostile machine, providing survivors with a shield before they are exposed to the rawest edges of court bureaucracy. ILA and ILR programs protect survivor privacy by fighting predatory third-party records applications and ensuring that a complainant is not left entirely exposed in an adversarial vacuum.

But while these programs are vital lifelines, we must recognize them as the threshold, not the destination. They are reactive measures designed to help a survivor survive a broken machine. We need to keep moving forward.

To truly eradicate juridogenic harm, we must deploy our radical imagination to permanently restructure the legal landscape:

• Universal proactive presumptions: Rather than forcing survivors to undergo gruelling, heavily contested legal applications to protect their well-being, the default structure of sexual assault proceedings must automatically incorporate protective measures — such as remote testimony, screens and the standard use of pre-recorded evidence.
• Systemic accountability and transparency: We must champion legislative tools like Ontario’s proposed Lydia’s Law (Accountability and Transparency in the Handling of Sexual Assault Cases). Named after a survivor who endured agonizing, state-sanctioned court delays, this bill targets juridogenic harm by forcing the Attorney General to track and publicly report exactly why so many sexual assault cases are stayed or withdrawn. Crucially, it advocates for lifting all administrative time limits on funding for psychological rehabilitation, recognizing that healing from institutional harm cannot be bound by an arbitrary bureaucratic timeline.
• Alternative pathways to justice: True progress means scaling robust, properly resourced restorative justice and community-led accountability pathways outside the traditional criminal court binary. Survivors — particularly those who are racialized or non-status — must have access to safe avenues that centre validation, healing and meaningful accountability without forcing their nervous systems into a hostile adversarial arena.

The pursuit of accountability must no longer require the destruction of the survivor. It is time to move past a system of institutional betrayal and build a justice system that heals rather than harms.
  
Deepa Mattoo is the CEO of YWCA Toronto and a licensed barrister and solicitor in Ontario. A recipient of the Law Society Medal, she is the former executive director of the Barbra Schlifer Commemorative Clinic and a deeply experienced human rights advocate who has led systemic law reform and litigation before all levels of court, including the Supreme Court of Canada. Her work centres on intersectional equity, and she frequently provides international expertise and training on trauma-informed legal practice and access to justice for survivors of gender-based violence.

The opinions expressed are those of the author and do not reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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