Reflections on Victim-Blaming in the Courts
I see my friend’s body crumple: her shoulders drop and her head hangs.
She is on the witness stand, giving testimony about her experience of domestic violence at the Court of Queen’s Bench. The defence lawyer has just asked her, with no small measure of incredulity, why she would attempt to follow a man who had, “apparently,” harmed her violently, and asked him not to leave her. On the surface, perhaps, this seems like a rational question.
Yet what caused her body language to change so completely was the defence lawyer in effect telling the court that “he couldn’t possibly have hurt you that badly if you wanted him to stay.” I looked around, waiting for some objection to this language, this logic, in a domestic violence trial.
Later on, the same defence lawyer asked why my friend would approach her husband when he had clearly wanted to be left alone—as though “bothering” one’s husband might be legitimate grounds for violence. In this same vein, my friend was questioned about why she would return to a man who had harmed her, giving him the opportunity to harm her a second time. This line of questioning came up multiple times in the defence’s cross-examination and his closing arguments to, in his words, “this honourable court.” Her actions, he pronounced loudly, lacked any rationality and defied logic.
To be clear, I stand firm in the right of any person to have a thorough and robust defence. It is a right that everyone is entitled to, irrespective of what they are accused. This is absolute and essential to our courts, and to our democracy as a whole.
However, I am left deeply unsettled and distressed by the events I witnessed over the course of my friend’s three-day trial. How can our court system render itself fit for deciding justice in matters of sexual and domestic violence, while simultaneously demonstrating a fundamental ignorance to the social, emotional, interpersonal, and systemic circumstances under which such violence occurs? How can we ask any woman to put their faith in a legal system to render a process of justice-seeking in these matters when our courts demonstrate a lack basic knowledge of how gender violence actually operates?
Beyond demonstrating a lack in trauma-informed practice, a judicial system tasked with issues of gendered violence that allows rhetorically positioning a complainant as being potentially responsible for that violence questions the very legitimacy of our justice system. Validating patriarchal beliefs and stereotypes is, in the plainest and most obvious fashion, perpetuating structural, systemic violence against women (and all victims of domestic and sexual violence).
A robust and thorough defence must be undertaken without intimating that a woman might somehow deserve the violence that she is testifying against. If not, how could we possibly expect any woman to come forward to report her experiences? We cannot, and we must not, continue to view these kinds of accusations (rhetorically framed as questions) as a component of a sound defence for those accused of violence.
My friend’s trial did not have the outcome that we were hoping for. The judge stated in his decision that he believed the version of events offered by the accused. In our devastation, my friend and I spoke at length, debriefing after the trial, about whether it is foolish to believe that a system designed by men, for men, and still largely overseen by men, and if a system steeped in prizing rationality and logic over emotion and experience can ever offer real justice for survivors of gender violence.
Regardless of the outcome of my friend's trial and the outcomes of all trials past, present, and future dealing with gendered violence, what I do know is this: until we no longer permit such questioning as valid; until any and all entertaining of victim-blaming as a meaningful defence for those accused of such violence is dismissed outright; until questions like “what were you wearing?” and “why did you go back?” and “why would you bother your husband when he clearly wanted to be left alone?” are immediately stopped in their tracks, our courts are soundly failing those who come forward, at an immeasurable cost, long before any ruling is determined.
And there is nothing honourable about that.
Natasha Pinterics is an Instructor in English and Gender Studies at NorQuest College. She resides in Edmonton, AB, with a blended-family menagerie of kids, cats, dogs, and birds.