Last evening, I had an opportunity to attend a program co-sponsored by both the Nova Scotia Barristers’ Society and the Avalon Sexual Assault Centre. The program centered around a presentation and follow-up discussion regarding the best practices for addressing victims of sexual assault. As you might imagine, lawyers — including this one — have been confronted with clients and witnesses who presented as victims. The management of such individuals’ interests is not an easy one, requiring a certain level of strength, empathy, care, and — in each, individual situation, the capacity to gauge the best possible approach.
The discussion was a lively one — especially, for me. Sadly, I was the only male attendee of this invaluable seminar. I was also the only lawyer present who had both represented victims of sexual violence, while also having represented others (obviously, in completely different cases) criminally charged with sexual assault. I hope that I was able to contribute to the discussion by bringing in some perspective from — at a minimum — the criminal defence side.
Lawyers are confronted with the difficult paradox of representing the client’s interests vs. representing the best interests of society. Sometimes, there are many that will view such interests as competing. However, from the criminal defence side, those interests are typically viewed as consistent. The representation of the criminal defendant charged with sexual assault is viewed as vindicating society’s interests in justice, and to the overall objectives of the Charter of Rights — ensuring that the Crown abide by its burden to prove guilt beyond all reasonable doubt, and further ensuring that the innocent are not the subject of wrongful conviction.
Now, some of my colleagues from last night’s discussion would disagree with this proposition. Indeed, one mistakenly believed that the only goal of the criminal defence lawyer was to “win” the case. I contested such a stereotype, and also disagreed with applying such a label to Crown prosecutors. Both sides in a criminal case — prosecution and defence — hold unique roles, roles intended to vindicate separate interests. In one case, the Crown is seeking to fulfill society’s interest in justice by bringing to trial cases where there is a reasonable opportunity to secure a conviction. At the same time, the criminal defence lawyer is attempting to similarly achieve vindication of our constitutional system of justice by compelling the Crown to meet its burden, and by providing a diligent defence to the charged client.
So, are these perspectives consistent with the needs of alleged victims of sexual violence? Perhaps, not — at least, not all of the time. A conscientious prosecutor will attempt to work with their alleged victims to prepare them for a difficult process, and will certainly attempt to empathize with that individual while remaining conscious of their individualized needs. This is not an easy road, as the prosecutor is also required to represent the interests of society in bringing the guilty to justice.
The position of the criminal defence lawyer is all the more peculiar, as the interests of the client charged with the sex crime becomes tantamount. It is extremely difficult to focus on the issues surrounding the alleged victim of sexual violence while attempting to provide diligent, effective representation designed to vindicate a charged client’s constitutional interests. Plus, there is a general feeling in the defence community that the interests of alleged victims/victims is already being safeguarded by the Crown, and by those support services that are designed to address victimization.
Last night, one of my fellow participants raised the prospect of the criminal defence lawyer pushing a client to accept a plea, in lieu of forcing possible victims to suffer the strain of testifying in court at trial. Again, I profess some difficulty with embracing such a notion to this extent — to the extent that it presses us to ignore a client’s own interests and to substitute a conflicting interest. That being said, criminal defence lawyers — generally speaking — take reasonable steps to secure a fair plea agreement from the Crown, present it to the client, and — if it is believed by the lawyer to be in the client’s best interests — recommend acceptance of the ‘deal.’ We can be persuasive, but we cannot impose our will over that of the charged client. Ethically, the criminal defendant has carte blanche to decide whether or not to proceed to trial. In some instances, the decision of a client to go to trial may not necessarily be privately endorsed by the lawyer — nonetheless, the criminal defence lawyer is duty-bound to accept this decision, and to go forward with reasonable diligence.
Of course, from the perspective of one who has represented victims of sexual violence, my perspective as a lawyer changes. I must diligently effectuate the victim’s interests — whether when involved in a civil lawsuit versus the perpetrator of sexual violence, or in engaging in other ethical, lawful methods to fulfill a client’s interests. Recently, without going into any real detail, a client — and a past victim of sexual violence — did not wish to pursue criminal charges or civil suit against her abuser, except as a method of last resort. Rather, she wanted the perpetrator to simply go far, far away. So, after making an initial effort to persuade her otherwise — based upon my perception of society’s interests in justice against the perpetrator — I recognized the deep, personal, psychological interests of my client. I was required to — paramount to all others — effectuate her interests. So, after a period of days, I successfully met her objectives — the perpetrator went far, far away.
The bottom line is that these issues are never easy, and require a bit of perspective — and education. The possible failure here is that of lawyers and judges to (1) become fully educated regarding these issues; and (2) failing to speak out against issues of sexual violence. Hopefully, my participation in last night’s seminar; this blog posting; and my dedication to continuing to vocalize on these issues will play a small part in changing this landscape — of addressing these notable deficiencies.
I will end this post by going one step further: addressing an issue(s) besetting my law alma mater, Florida State University. Over the past year, it has become a matter of public knowledge that players on the FSU football squad may have been engaged in criminal activities, including sexual assault. Indeed, when reading two recent, compelling New York Times exposes on the matter, it appears that these players have been insulated from public accountability by both law enforcement and university officials.
Today, USA Today released its own interesting piece: http://usat.ly/1wAmcjO. Based upon what I have read, it appears that — in the case of the alleged victim of sexual violence — there has been a perceived, decided effort by FSU officials to undermine her interests and to humiliate her, all in the interests of protecting a star quarterback, one who cannot remain out of trouble. Where is the accountability? Well, let us start with those individual(s) targeted in the above USA Today piece: the head coach of the FSU football team. He needs to go — by ignoring the perceived lawlessness of several members of the team, he is — I believe — only encouraging additional acts of those same players. Profit and football victories can never substitute for societal interests in justice, nor the rights of victims of violence, especially the young lady who alleges a case of sexual violence.
As members of the legal community, we are in a position to speak out — indeed, our voices should carry greater credibility, as it is our voices which can, together, push change in both our legal and political processes.