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If you have been reading or watching the news over the last couple weeks, you will have been inundated with stories and commentary about the Jian Ghomeshi sexual-assault trial and the way our criminal-justice system processes sexual-assault charges.

The Ghomeshi trial, which wrapped on February 11 after eight media-saturated days, is the latest event to highlight concerns about how sexual assaults are reported and prosecuted.

Athough there are no quick fixes for the issues being raised around sexual-assault prosecutions, one idea gaining currency is the creation of specialized sexual-assault courts.

In a sexual-assault trial, as in any criminal trial, the right of the accused to a full defence must be balanced with the right of the complainant to a fair and nondiscriminatory trial. After watching Ghomeshi’s trial, many are asking if the legal system has the balance wrong.

Ghomeshi was charged with four counts of sexual assault and one count of choking to overcome resistance. Three separate complainants alleged Ghomeshi assaulted them during dates.

In the credibility battle that sex-assault cases often end up as, the defence looks for ways to make the complainant appear unreliable at best, dishonest at worst. It makes for an ugly trial, and Ghomeshi’s trial was no exception.

Based on the media reports, and without seeing court transcripts, it seemed clear that all three witnesses were ill-prepared for cross-examination. All three witnesses were found to not have disclosed during police interviews contact they had with Ghomeshi after the alleged assaults. And it was the behaviour of the three witnesses before and after the alleged assaults that the defence zeroed in on and held up for scrutiny.

Lucy DeCoutere, the only witness to waive the publication ban on her identity, testified that she didn’t tell police about her romantic communications with Ghomeshi after the alleged assault because she didn’t think they were relevant. The third witness said she didn’t tell police about a consensual sexual encounter with Ghomeshi after the alleged assault because it was embarrassing.

In not disclosing encounters and correspondence with Ghomeshi, the complainants had their credibility brought into question and were characterized by defence as unreliable witnesses.

Section 276 of the Criminal Code of Canada, better known as the rape shield law, is meant to limit the ability of the defence to use the complainant’s sexual history. As the Ghomeshi trial showed, however, the rape shield is permeable.

In the past, evidence of sexual history was often used by defence to make the case to the court that the complainant was more likely to have consented to a particular sexual interaction. Now, although questions about the complainant’s sexual history may be forbidden, their actions before and after the sexual assault can be used to determine whether or not their behaviour is consistent with having consented or not to a sexual interaction. Advocates of sexual-assault-trial reform take issue with this and point out that the current system is not equipped to take into account the common behaviours and reactions by victims of sexual assault.

Regardless of where you come down on pre- and post-offence behaviour, sexual-assault statistics indicate a lack of public faith in the legal system’s response to sexual assaults. According to Statistics Canada, 91 percent of sexual assaults are not reported to the police.

There is a consensus by those pushing for reform that a one-size-fits-all criminal-law system is failing victims. Specialized courts are not new in Canada. A number of jurisdictions have specialized domestic-assault courts. There are also specialized First Nations courts, specialized courts for offenders with long-term drug addictions, and specialized courts for those with mental-health issues. Each of these courts are presided over by judges who have a specialized knowledge of offenders or offences in a particular area.

Those pushing for creation of sexual-assault courts believe that specialized knowledge by crown prosecutors and judges is needed to combat the myths and stereotypes that can infuse cross-examinations, arguments, and judgments. A crown with sexual-assault trial expertise, for example, may be more likely to object to a defence cross-examination that references rape myths either overtly or subtly.

Access to legal counsel or advocacy by complainants is another issue that sexual-assault courts may address. The accused in a sexual-assault trial has the right to a government-funded lawyer if they cannot afford to retain counsel. Complainants do not have the right to a funded lawyer. If they do pay to retain a lawyer, their lawyer has no standing in court. Their lawyer can brief them on what to expect when they are put on the stand at trial, but once in the courtroom, the complainant is very much on their own. One proposal is that specialized sexual-assault courts would provide complainants with trained legal advocates to prepare and support them throughout the trial process.

Justice William Horkins will deliver his verdict on the Ghomeshi trial on March 24. It is unlikely the verdict will do much to rehabilitate public faith in sexual-assault prosecutions. There is not a single easy fix for the problems that beset sexual-assault trials, but specialized sexual-assault courts may be a place to start.

Clodagh O’Connell is a lawyer and writer based in Tofino, British Columbia. She can be reached at clodagh@oconnelllaw.ca/