Disqualification by design: Strategic inefficiencies in Canada’s legal response to sexual assault

Abstract

In Canada, perpetrators of sexual assault (SA) continue to benefit from near legal immunity, with the overwhelming majority of criminal complaints being funneled out of the justice system without legal accountability. This project explores the mechanisms within the legal system that work to slow and stop complaints of SA, analyzing them as barriers to justice. Drawing on intersectional feminist and decolonial theory and autoethnographic methodology, I analyze my own experiences of reporting my SA to the police and serving as a complainant in the SA trial that followed in conversation with selected narratives of other survivors in the feminist literature. I show that within Canadian policing systems, survivors encounter several barriers including a culture of skepticism, investigative apathy, and patterns of critical police errors. In the trial process, barriers include the misapplication of SA law, a hostile courtroom culture, the “reasonable” perspective, alienation and domination through courtroom talk, and strategies to “whack the complainant”. Indigenous women, women with mental health or substance use issues, and poor women may be more likely to experience barriers in the justice system and may experience them more harshly. Drawing on Ahmed’s (2018, December 20) concept of strategic inefficiency, I argue that inefficiencies within the justice system are not simply “failures” to do something, but that they are doing something. Barriers in the criminal justice response to SA work to support existing hierarchies including (White) heteropatriarchal domination and men’s access to the bodies of those considered to be outside the circle of respectable femininity.