Wickwire Lecture: The ethics of sexual assault lawyering

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Well-publicized sexual assault cases in recent years have sparked intense public debate in Canada, prompting some in the legal world to examine how our justice system handles these matters.

What are the professional responsibilities of defence lawyers and Crown attorneys in sexual assault cases? What are their ethical obligations?

According to legal scholar Elaine Craig, who has researched extensively on how complainants are treated during sex assault trials, these queries are relatively simple to answer: lawyers must work within the framework of the law and not overstep boundaries that shouldn’t be crossed.

“We have lots of sexual assault complainants, lots of women who are traumatized by our state’s process, and . . . the legal profession is contributing to that trauma in ways that I think are unnecessary – and that’s a problem,” Craig said December 1, 2016 during a public talk at the Schulich School of Law at Dalhousie University.

The associate professor was the featured speaker at the 26th annual F.B. Wickwire Memorial Lecture in Professional Responsibility and Legal Ethics, co-hosted by the law school and the Nova Scotia Barristers’ Society.

Defence lawyers do have a professional duty “to raise every argument and ask every question, no matter how distasteful,” Craig told the packed lecture hall, but this duty to “advocate resolutely” is limited by law.

“The right to full and fair defence is a right to a fair trial,” she said, but added, “lawyers have a duty not to discriminate and a duty not to knowingly mislead the court.”

Her research has shown that behaviour exhibited in court by some defence lawyers includes unnecessarily aggressive cross-examination and other line-crossing strategies that are abusive toward complainants, who are often women from disenfranchised communities in society.

NSBS building trauma-informed lawyering resources 

The Society is developing resources and training to assist lawyers in addressing the needs of survivors of domestic violence and sexual assault, in partnership with such community organizations as Avalon Sexual Assault Centre and YWCA Canada.

Among other projects, we’re designing an education seminar and building a section of trauma-informed resources in the Society’s online Equity Portal, with articles, best practices and short educational videos. A partnership with Be the Peace Institute in Bridgewater is examining the roots and consequences of violence against women and girls in Nova Scotia.

Also see “Supporting Survivors of Sexual Violence: A Nova Scotia Resource”, a training program created as part of the province’s Sexual Violence Strategy: breakthesilencens.ca/training.

“Defence lawyers have an ethical obligation not to engage in such strategies,” she said.

Craig earned her doctorate in law at Dalhousie University. She received a master’s degree in law from Yale University after earning her initial law degree at Dalhousie’s law school.

In her academic research, Craig has examined how lawyers in Canada working on sexual assault cases handle their ethical obligations. She has interviewed practitioners, reviewed trial transcripts, studied case law and checked websites of Canadian law firms. Though her lecture focused on the conduct of some defence lawyers, a book she’s writing on the ethics of sexual assault lawyering addresses the work of Crown attorneys and judges, too.

The Nova Scotia government’s anti-sexual violence strategy, put forward in 2015, estimates that only 10 per cent of sex assault survivors report to police. In 2013, 647 sexual assaults were reported to police departments in this province.

The Avalon Sexual Assault Centre in Halifax says that research and current data about sexual assault are limited. “Provincial and local data that (are) available may not be consistent with other research or portray trends accurately. For example, women with disabilities or Aboriginal women are at a higher risk of experiencing a sexual assault although local data may not show this,” says Avalon’s website.

A commentary in Canadian Lawyer magazine by retired lawyer Philip Slayton, a former law school dean, said there’s little doubt “sexual assault cases, by their very nature, are unpleasant if not awful for those involved, and arguably this may impose particular obligations, if only those of human decency, on all those caught up in the process.”

Slayton’s view is that “almost no one denies the sensitivity of the (sex assault) issues and the need for balance and maturity.” But for lawyers, he concluded, “to arrive at the right balance is hard indeed.”

Craig warned attendees early on that her lecture material included explicit content.

“The full texture of the treatment that some complainants are subjected to by some defence lawyers cannot be captured through description or paraphrase,” said Craig. “And so sanitizing this content, I think, would betray both the objective of this work and the justification for using the stories of these women.”

During the question-and-answer portion of the event, Craig was asked what advice she could offer new defence lawyers. She said “it’s hopeful” the inappropriate tactics she described aren’t as entrenched in the legal profession as people might think. “I think all of our (law) students, regardless of the area they practice in, are going to be faced with these kinds of ethical challenges.”

Prior to her lecture, Craig told a Halifax radio talk show that legislation covering sexual assault in Canada is solid, with our sex-assault laws among the most progressive in the world.

“The problem isn’t with the legislative framework,” Craig told News 95.7. “It’s with the way in which these laws are interpreted by judges, the way in which they are complied with by lawyers (and) the way in which they’re enforced.”

The F.B. Wickwire Memorial Lecture is named for former Society president Frederick (Ted) Wickwire, QC. He graduated from Dal’s law school in 1962 and had a distinguished career that included public service.

— Article by Michael Lightstone, freelancer