I am Jane Doe, I am Pissed, and I have an Idea

I, like women around North America, and probably around the globe, am enraged, but not surprised, by the news coming out of Cornell over the past few weeks.

Most women on my therapist couch- hell, me in my therapist chair, are finding ourselves retraumatized, angry, dissociated, reflective, ashamed, and confused about our own experiences as rape is placed front and centre, once again, in the media.

How long ago was #MeToo? 

Has anything changed? Will anything ever change? 

I know most women are sitting in the despair of these questions.  

Because when we talk about sexual violence, the statistics are stark. I’m writing from Canada and here’s the latest: 

In 2019, Statistics Canada estimated that approximately 940,000 sexual assaults occurred in this country.

Only 6 percent came to the attention of police.

Between 2015 and 2019, only 36 percent of sexual assaults reported to police resulted in charges being laid or recommended. Of those, 61 percent proceeded to court. Of the cases that reached court, 48 percent resulted in a finding of guilt.

DO YOU UNDERSTAND WHAT THIS MEANS? 

It means we can generally estimate that 0.3% of sexual assaults in Canada result in a custodial sentence. 

It means rape in Canada is basically an unpunishable offense. 

Does that piss you off? Because it sure as shit makes me real fucking angry. 

But I have an idea.

Perhaps it's foolish. Perhaps it's constitutionally impossible in the form I've imagined it. Perhaps someone who went to law school will read this and immediately find a host of problems with it.

That’s okay. Find the problems. Please, build something better. 

I’m old. Law school is not likely on my bingo card. We need the movers-and-shakers, grad students, law students, researchers, legislators and social-policy people who understand the machinery better than I do. 

So here it is, my idea: run with it young Padawans… make it better, make it real. 

A Sexual Violence Accountability Tribunal

Canada currently offers survivors two very different legal pathways.

Criminal prosecution requires the Crown to prove guilt beyond a reasonable doubt.

A survivor can also bring a civil action against the person who assaulted them. Civil cases use a different standard: balance of probabilities. In ordinary language: is it more likely than not that this happened?

These standards are different for good reason.

Taking away someone's liberty requires an extraordinarily high evidentiary threshold. I am not suggesting we abandon that protection.

I am asking a different question.

Why are criminal prosecution and a privately funded civil lawsuit essentially the only legal models we can imagine?

What if there were a third pathway?

Imagine an independent Sexual Violence Accountability Tribunal.

The way I imagine this is that survivors could bring allegations of sexual violence before a specialized panel operating under the civil standard of proof: balance of probabilities. 

The question would not be:

Can we establish this beyond every reasonable doubt?

It would be:

Considering all of the evidence, is it more likely than not that sexual violence occurred?

And the people answering that question would be specifically educated in sexual-assault law, consent, coercion and the neurobiology of trauma.

They would understand freeze, appeasement and fawning. They would understand why memory after trauma isn't necessarily linear. They would understand why someone might continue speaking to the person who assaulted them. They would understand that the absence of physical resistance does not equal consent. 

And even though false allegations are rare- they would also understand due process, evidence, credibility and the profound consequences of an erroneous finding. 

Because justice cannot require us to choose between creating a standard so difficult to meet that countless people who experience sexual violence never see meaningful accountability AND believing every allegation without examination. 

We need something different. We deserve better. 

Now comes the part of my idea that needs the lawyers.

What consequences could such a tribunal constitutionally impose?

Here are my rudimentary thoughts, but I leave the rest to you and your brilliant minds: 

·         A publicly searchable website for those found responsible for sexual violence.

·         A notice on the site for repeated offenders.

·         Mandatory education and therapeutic intervention. 

·         Potential restorative options, if and only if, the survivor wanted them. 

·         An opportunity to be removed from public listings if rehabilitation was demonstrated through therapy and a thoroughly educated panel. 

Concerns I’m aware of: 

I do know that public identification carries enormous consequences and would require rigorous procedural safeguards. I know that creating a government body whose consequences become primarily punitive could raise serious Charter questions.

That's why this isn't legislation.

It's an idea.

But I am unwilling to accept that because the solution is complicated, the status quo is inevitable.

Let's revisit how we respond to sexual violence.

Let's make the world safer for women.

To those that know better than I: take the idea and run.

For the love of God, take any idea and run. 

I refuse to accept that violence against women of this magnitude is inevitable. 

Let’s do something. 

Let’s go. 

Let’s fucking go. 

Author’s note: I recognize that sexual violence affects people of all genders, including men and boys. This article intentionally centres the experiences of women and girls, who are disproportionately affected by sexual violence and gender-based violence.

For the Statistics Canada data referenced in this article, please see the sources below:

https://www150.statcan.gc.ca/n1/pub/85-002-x/2024001/article/00007-eng.htm

https://www150.statcan.gc.ca/n1/pub/11-627-m/11-627-m2024051-eng.htm