“My job as a prosecutor is to do justice. And justice is served when a guilty man is convicted and an innocent man is not.” ~ Sonia Sotomayor
Recently, the Canadian military justice system has been criticized for having a lower conviction rate than the civilian courts in sexual assault trials. The current rate, according to a CBC News statistic, is a little more than 23% of trials ending with a conviction. In contrast, they report the civilian court conviction rate as being 43%. “What’s the goal of the criminal system if it is not to have a conviction?” asks retired master corporal Stephanie Raymond, a complainant in a past high-profile military sexual assault trial.
Raymond is not alone in believing that the conviction rate is indicative of the justice system’s efficacy in handling sexual assault cases. Earlier this year CTV Atlantic announced that Nova Scotia was hiring two new lawyers with expertise in prosecuting sexual assault trials, with the intention of raising the conviction rate. These new Crown attorneys are supposed to help with “improving outcomes of cases that make it to court.”
The notion that increasing convictions in sexual assault trials would improve justice is very dangerous territory. A guilty verdict does not equal a successful trial because not all accused are guilty. People are not numbers and statistically driven trials would be inhuman.
CTV also tells us that, according to the Nova Scotia Minister of Justice Mark Furey, the government needs to “address and ensure that these matters are getting to the courts, that they are presented in the most appropriate manner, and that we are securing convictions in these types of circumstances.”
The ideal is to secure convictions only of actual criminals, not of everyone merely accused of a crime. Obtaining convictions is not the goal of the justice system as a whole and, in fact, it is a forbidden for the prosecution to pursue this goal for good reason.
Prosecutors do not represent complainants, they represent the state. The goal of the state is supposed to be the pursuit of justice, not the pursuit of results. In other words, they must not prosecute people without reasonable proof, they must cease prosecution when a conviction would be unsafe, and their duty is to protect the rights of both the complainant and the accused.
Thankfully, at least some have expressed a more reasonable view about the objectives of the justice system. As the Director of Military Prosecutions, Col. Bruce MacGregor rightfully holds, “the rate of conviction isn’t a measure of success in any prosecution service, whether it’s a military prosecution service or a civilian criminal justice system across the country.”
One of the sparks for this concern about the conviction rate in sexual assault trials appears to be a Statistics Canada publication from October of 2017 titled “From arrest to conviction: Court outcomes of police-reported sexual assaults in Canada, 2009 to 2014.” In a Globe and Mail article about the new Nova Scotia Crown prosecutors, it is written that:
“According to Statistics Canada, less than half of all sexual assaults reported to and substantiated by police between 2009 and 2014 resulted in a criminal charge being laid. Of those, one in five went to court; from there, slightly more than one in ten – 12 per cent – led to a criminal conviction.”
This statistic does seem rather alarming – only 12% of sexual assault trials end with a conviction?!
However, this is not in fact what the Stats Can article reveals. Here are the actual numbers published:
The result is that just shy of 12% of all police-reported sexual assault allegations end with a conviction, but this number is still misleading due to other factors. The conviction rate is 55% in sexual assault trials. This is higher than that 43% conviction rate cited in the CBC article.
The Stats Can article provides enlightening information as to why so many cases do not go to trial. Mainly, only 59% of sexual assault accusations brought to police involve an identifiable perpetrator.
This means that in only 3 of 5 cases has an actual person identified as the accused, and in the remaining 2 of 5 cases there is no one who could even be put on trial!
Other common reasons given that a case may not make it to court were that the accuser “sought an alternative to the court process,” or the Crown determined that a conviction would be unlikely given the evidence or lack of evidence available – even with the elimination of a need for corroborating evidence.
Interestingly, the Stats Can article also states that the conviction rate of sexual assault trials (55%) is only slightly lower that that for physical assault trials (59%), but the punishment tends to be much more severe for a guilty conviction in a sexual assault trial.
56% of those convicted of sexual assault are taken into custody, compared to 36% of those convicted of physical assault. Additionally, only 5% of sexual assault trials conclude with an acquittal, whereas only 1% of those accused of physical assault are deemed not guilty.
The statistics appear to demonstrate that there is nothing particularly alarming about the conviction rate of sexual assault in Canada. However, University of Ottawa criminology researcher Holly Johnson believes that the fact that so many allegations of sexual assault do not make it to trial “points to a failure on the part of the criminal justice system to provide a reasonably just response to a very serious violent crime.”
Johnson asserts that police failing to believe victims of sexual assault is a large reason why so many cases do not make it to trial. She also thinks that many women decide not to go through the court process due to the prevalence of “rape myths” in the justice system and due to the “pressure to testify at trial.”
In contrast, UK family lawyer Helen Reece has argued that in the UK (which, at 7%, has an even lower conviction rate of police-reported sexual assaults) the conviction rate is comparable to that of other crimes. Reece rejects that the low conviction rate is a product of victim blaming or a lack of belief for the victims. She states that “rape myths are used as a convenient label to explain away low conviction rates.” Instead, Reece identifies the lack of independent witnesses as the primary reason why the majority of allegations brought to the police do not result in a conviction.
The low acquittal rate in sexual assault trials suggests that the issue at play is not a failure to #Believe women.
In cases where a guilty verdict is not reached, the most common outcome of a trial is that the charges are dismissed, stayed, or withdrawn. None of these results are the equivalent of saying that the accused did not commit the crime in question, or that the accuser is a liar.
If 55% of trials end with a conviction and 5% end with an acquittal, in roughly 40% of the cases it is determined that there is insufficient evidence to make a decision either way.
We need to correct the damage of the widespread assumption that any outcome for an allegation of sexual assault other than a guilty verdict in court is a failure of the system. This is not true, and not just because of the high standard of reasonable doubt in criminal courts.
No one has fun in court. It is expensive, time-consuming, and emotionally draining for all parties involved. Perhaps the complainant withdraws from the legal process because of the stress. Perhaps there is insufficient evidence and the prosecution decides that a conviction is unlikely. If a conviction is unlikely, then the complainant is better off not having to go through the process as well. A criminal court is not a substitute for therapy and it should not be treated as one.
So, if the conviction rate isn’t the measure of success of the justice system then what is?
Common sense and history shows that the focus ought to be on the quality of defence and prosecution services in sexual assault trials. Everyone agrees that we want the maximum number of guilty people to be convicted in court. That goal cannot ethically be achieved by assuming that the majority of those accused of sexual assault are guilty.
Because the integrity of our justice system depends on the presumption of innocence and the burden of proof remaining with the prosecution, the best way to ensure that actual victims of sexual assault are being best served (and that those accused are treated fairly) is to ensure that prosecutors remain non-partisan.
The limitations and weaknesses in our justice system are designed to prevent injustice.
Prosecutors have not failed if they do not obtain a guilty verdict. A point eloquently made by the Supreme Court of Canada in the 1954 case of R. v. Boucher:
“It cannot be overemphasized that the purpose of a criminal prosecution is not to obtain a conviction; it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented; it should be done firmly and pressed to its legitimate strength, but it must also be done fairly. The role of prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness, and the justness of judicial proceedings.”
Admittedly, sexual assault cases are difficult to prosecute. Very often there are no independent witnesses and the testimony of the complainant is evaluated in the absence of corroborating evidence.
If it is true that the quality of prosecution services needs to be improved in sexual assault trials, that improvement can not be measured by conviction rates.
The goal of increasing the conviction rate in sexual assault trials on the basis of numbers and statistics is neither honourable nor ethical. Rather, it is the aspiration of dogmatic social justice ideologues who are trying to force statistics into matching their narrative.