Is there a new view on defence ethics?

Philip Slayton
What are the ethical boundaries for a lawyer defending someone accused of a sex crime? Is he a hired gun, expected to do everything legally possible to win the case, concerned only about the fate of his client, free to attack the complainant unreservedly in cross-examination, dedicated — as it is sometimes put — to proof, not truth? That, I think, was the old idea, unchallenged for many years.

Or does the defence lawyer have broader social obligations that mitigate his or her responsibility to the accused, obligations that include not embracing myths and stereotypes about women and sex and giving special consideration to the complainant? That is more modern thinking, let’s call it the “new view,” born of high-minded concern for the well-being and rights of those alleging sexual assault, and promoted by a new generation of academics and ethicists.

David Tanovich of the University of Windsor Faculty of Law succinctly expresses the new view in a series of rhetorical questions in “Whack No More: Infusing Equality into the Ethics of Defence Lawyering in Sexual Assault Cases” in a recent issue of the Ottawa Law Review: “The fundamental questions all defence counsel should ask in sexual assault cases include whether their conduct . . . is grounded in stereotypes about sexual assault and gender, sexual orientation, race, or disability? Will their tactics in cases of truthful complainants cause irreparable harm? Will it perpetuate disadvantage such as dissuading other complainants from seeking justice in the criminal justice system? Will it bring the administration of justice into disrepute?”

Tanovich believes any conduct by a defence lawyer that promotes or exploits stereotypes violates his ethical duty not to act in a discriminatory fashion. “This would include cross-examination on what the complainant was wearing, whether she immediately reported the incident, whether she spoke to a psychiatrist, her socio-economic status, drug or alcohol use, lifestyle, or marital status.”

Tanovich’s ideas are representative of the views of most members of the contemporary professoriat who bother with the issue. But what do so-called sexual assault lawyers, the people on the front lines, think? Professor Elaine Craig of Dalhousie University’s law school has looked into the matter. She conducted 20 “semi-structured interviews” with experienced criminal lawyers in four Canadian provinces (British Columbia, Ontario, Nova Scotia, and Newfoundland). Her findings appear in a paper entitled “The Ethical Identity of Sexual Assault Lawyers,” soon to be published in the Ottawa Law Review. What Craig discovered was a state of bewilderment.

Defence lawyers who do sexual assault cases don’t seem to know what to think about the relationship between professional obligations and ethical duties. Craig writes: “Members of the criminal defence bar have been rightly criticized for perpetuating a ‘whack the complainant strategy’ that discourages victims of sexual violence from coming forward, and traumatizes those that do report sexual offences.” But she finds, based admittedly on a small sample, that not all defence lawyers feel this way.

None of her interviewees explicitly invoked the hired gun metaphor. Their thinking was often incoherent. Writes Craig: “Most of the interview participants offered comments that seemed at odds with other responses they had provided.” She concludes that — in Canada at least — there is more than one professional vision of how to practise sexual assault law. Criminal defence lawyers, it seems, are torn between Scylla and Charybdis, finding it difficult to choose between unfettered loyalty to their client and vague obligations to the complainant, society, and the justice system.

Craig and Tanovich often refer in their writings to the “context” of sexual assault cases. By this they imply that sexual assault cases exist in a separate world where unique ethical considerations apply. There is no question that 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.

But this is true, in different ways, of many criminal trials (and, indeed, of trials in general). Human happiness does not flourish in the courtrooms of the nation. No one enjoys being cross-examined. It is hard to see that sexual assault trials are sui generis, completely unlike any other, requiring special ethical rules.

Indeed, in one crucial respect, sexual assault trials are very much like any other criminal trial. The accused, yet to be found guilty, perhaps eventually to be found innocent, has the fearsome power of the state arrayed against him, and it is usually a him. He stands to lose his liberty, let alone his reputation, livelihood, and God knows what else. His fate depends in part on our system of law and justice, and the unceasing and energetic efforts, and skill and loyalty, of his advocate. In our system, in our country, he is entitled to these things. Were the process to be excessively complainant-centric, the accused’s access to loyal and zealous advocacy might be in doubt and his reliance on justice misplaced.

To return to Craig’s findings, it is small wonder that Canadian criminal defence lawyers are confused when it comes to sexual assault cases. The new view, and perceived political correctness frequently and vociferously expressed, pushes them in one direction. Their natural instincts and a long tradition push them in another. What are they to do? Almost no one denies the sensitivity of the issues and the need for balance and maturity. To arrive at the right balance is hard indeed. Pity the poor lawyer.

One more thing. These days someone who alleges sexual assault is often carelessly described as a “victim.” This is not right. The dictionary definition of “victim” is “a person harmed . . . as a result of a crime.” The use of the word “victim” assumes that a crime has been committed and that the accused is guilty. Let us remember, the whole point of a fair trial is to determine if that is the case.

Philip Slayton is immediate past president of PEN Canada, an organization that promotes and protects freedom of expression.

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