How the Justice System Fails Victims of Sexual Assault
When Access to Counseling Records Is Allowed
Edward Renner, PhD
Department of Psychology
In 1999 the Supreme Court of Canada heard the case of R. vs. Mills challenging the constitutionality of the rape shield law (C-46). This law protects the counseling records of sexual assault victims from being used in the trial by the defense of the accused.
The legal issue has been defined as a conflict between the rights of the victim to privacy and the rights of the accused to present a defense against the charge. When the matter of access to confidential records by the accused is cast in these terms, our system will of necessity put a premium on the rights of an accused for a full defense.
However, this is an incorrect and incomplete definition of the problem. It distorts a victim's process of recovery from the effects of a violent crime which falsely aids the accused. The re-definition of the issue requires an understanding of "crisis intervention."Crisis Intervention
When an individual has been the victim of a traumatic experience, specialized intervention often is required to assist the individual to recover and to prevent serious after effects from traumatic experiences.
Crisis intervention is NOT simply support given to someone who has had a traumatic experience. It is a specific medical intervention that requires special skills.
Crisis intervention is widely accepted as the treatment of choice following traumatic events. After airplane crashes and hurricanes, for example, emergency response teams are brought in to deal with the survivors and the family of victims. There is good reason for this.
If the strong emotions associated with traumatic experiences are not dealt with effectively at the time, the aftermath may last for years, in the form of nightmares, guilt and depression. Soldiers often carry the trauma of a war experience with them for the rest of their lives.Rape Survivors
Best medical practices requires providing formal crisis intervention at the time of a traumatic event. An example is perhaps the best way to explain why this is so.
A woman I know had a serious brush with cancer. In anticipation of what was likely to be a report of a terminal diagnosis, she asked her mother to come and be with her. Her mother did not arrive at 5pm as expected. Late that night the RCMP appeared at her door with the news that her mother had been killed in a fatal accident on Highway 401.
Her eyes still fill with tears when she tells this story. The cancer diagnosis was negative and is now behind her; but the series of events are the reality of her life. Yet she is at peace with herself, knowing that if it was her mother who had asked for support, she too would have been on the road for her. She knows that if she had gone to the appointment herself, to tough it out alone, her mother would have said: "You should have phoned, Precious, I would have gone with you." She knows her mother would have been hurt if she had not asked for her help, just as she would have been hurt if her mother had not called her under similar circumstances.
As a psychologist, I teach and practice crisis intervention. One of the essentials of crisis intervention is to immediately deal with self blame. After every traumatic event, the survivors ask Why? What if? Why did I insist that my husband be on that plane. What if I had heeded the weather warning; I should have known better!
This is the normal, common human reaction. And it can be psychologically destructive. The perspective achieved by the woman with the cancer scare does not come easily. Often, it takes help from someone trained in crisis intervention.
This is the reason workers trained in crisis intervention are sent in as a part of emergency response teams. It is essential that victims walk away from the experience knowing that "It is not my fault." This is the single most important aspect of crisis intervention.
A rape is often a traumatic event, claiming the person's sense of freedom of movement and security of person. It calls into question their social judgement. It violates their sense of trust. These are all self-doubting and self-blaming states. States that can be psychologically crippling for years, even a life time, if not effectively put to rest.The Legal Contradiction
The time to put these demons to rest is at the time of the crisis, while the person is still in emotional turmoil, well before the doubts and blame have worked their way into a suppressed belief system. A skilled crisis worker will always cover this ground of self-doubt and self-blame. This is the preferred treatment; it is the best medical practice.
Counseling records from agencies supporting victims of sexual abuse and assault can be expected to document the process of crisis intervention undertaken with survivors.
Yet, this is the very material that a good defense lawyer will go after. "Is it not a fact that you said 'Why did I invite him up, why didn't I realize what he would think'." Any record of good crisis intervention will include countless references to self-doubt and self blame. These are the demons a rape survivor, no less than Precious, must put to rest.
This is what I do. This is what I teach. This is crisis intervention.
No survivor of sexual assault should be forced to forego the best medical practices intervention in order to have a legitimate case before the courts.
No rape crisis worker should be forced to forgo providing the treatment of preference, nor the keeping of accurate notes, to ensure that the treatment does not damage the legal recourse of the victim.
It is for this reason the definition of the legal issue over access to counseling records is NOT a simple conflict between the rights of the victim to privacy and the rights of the accused to a full defense. There are far more fundamental considerations. If the legal decision on access to confidential records is based solely on the resolution of this conflict between rights, the court itself will become an instrument for violating the principles of fundamental justice ensured in the Charter of Rights and Freedom by effectively denying victims of sexual assault recourse to the best form of treatment available, or by allowing their case to be falsely undermined.
Simply put, the court itself can not become an instrument of injustice in the service of justice. The means and the ends of justice must be in harmony. Equal protection of the law requires that a victim should not have to choose between treatment or prosecution.
The means used by the defense must be legitimate, otherwise justice is compromised. Just as threatening a witness is not a legitimate means of defense, neither is withholding or distorting best medical practices justified. In the limiting case, withholding best medical practices in cases where a witness has been harmed would ensure fewer living witness and would falsely afford the accused a better defense. This is wrong in the limiting case, and wrong in rape cases.
In my research over the past 15 years on sexual assault and child sexual abuse, my students and I have documented additional ways in which the justice process actively fails to protect women and children from male sexual violence. We have called this "discounting." Through multiple forms of discounting, the legal system designed to protect women and children actually contributes to their victimization. The failure to understand the therapeutic context is but one example of why reform of the legal doctrine on sexual assault is necessary.
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