A teenage girl who testified to being sexually abused by her father figure for years had to answer inappropriate questions from the defense, leading the judge to intervene. A case that highlights the limits of cross-examination and the existence of myths and stereotypes in court, further obstacles for victims who want to file a complaint.
Josiane*, now 17, recounts having lived through hell for almost nine years. Her grandmother’s partner, a man she considered her father, would have sexually abused her on numerous occasions from a very young age. To get more “WiFi” time, she had to perform oral sex on her attacker, for example, she told the court.
The 58-year-old Montrealer faces 11 counts of sexual assault and crimes of a sexual nature committed between 2012 and 2021. To protect the identity of the child, the accused cannot be named. His preliminary investigation took place last month at the Montreal courthouse. This is a pre-trial step, scheduled for January 2024.
Some questions asked of the teenager during cross-examination may seem particularly intrusive. The young girl was questioned with insistence on the aspect of the sexual attributes of the presumed aggressor, had to explain and describe very precisely her pains during the aggressions or the sexual positions used.
In the eyes of M.e Justine Fortin, director of programs at Juripop, this cross-examination does not “correspond” to the guidelines of the Bar in the recent “guide to best practices” in matters of sexual assault.
If you want to explain to a law student what it would be like to convey sexual stereotypes and myths, [ce contre-interrogatoire] would be an example.
Me Justine Fortin, program director at Juripop
This “insistence” by the defense to dwell on “irrelevant details about the appearance of the penis and the aggressor’s ways of ejaculating forces the victim to relive these traumatic events in an unsafe context and is strong probably retraumatizing for her”, analyzes Malorie Comtois, clinical specialist in sexual violence at Juripop.
Such cross-examinations force agencies, like Juripop, to prepare victims for the “worst” possible questions. “Unfortunately, it is a job that we do. It is frequent enough for us to prepare them, ”explains M.me Comtois.
In an interview, the defense lawyer in this case, Mr.e Olivier Cusson, defends his work. He believes he has respected the “acceptable parameters” of cross-examination by focusing on the “search for the truth”. He claims to have shown “empathy” towards the complainant.
“Defence lawyers, society sees us a bit as detached beings, but we are completely human”, insists Me Cusson.
An experienced defense lawyer who analyzed the file at the request of The Press finds that the cross-examination was conducted within the standards, with one exception. She emphasizes the “calm and respectful” tone of the lawyer.
“As long as we stay in the facts of the aggression, it is unpleasant and intrusive, but it is part of the process. […] Child or no child, there is proof to demonstrate, the burden of proof does not change. […] The way our adversarial system is made, we have no choice but to go into these details to raise doubts about reliability and credibility,” explains Ms.e Michèle Lamarre-Leroux, a criminal lawyer who sometimes represents victims.
Use of correct terms
In front of the court, Josiane notably recounted having had a sore jaw during certain attacks. Me Cusson wanted to get more details: “What exactly was hurting you? “The Crown prosecutor, Mr.e Charles Doucet, raised an objection for a question of relevance. An astonishing discussion followed during which the term “blowjob”, used by Josiane, was taken up by both the judge and the lawyers.
“What will it change? […] She says it hurts her,” Judge Silvie Kovacevich asked.
“Sometimes it might have something to do with what the defendant does, it might have something to do with how she does it, or it might have something to do with the size of the penis itself. My job is to determine how the facts happened. […] I am in preliminary investigation. There is nothing impertinent there “, justified Me Cusson.
“It stops there. Do not forget that she is 17 years old. You have enough details. It will stop there, ”said the judge.
According to Malorie Comtois, clinical specialist in sexual violence at Juripop, the use of the word “blowjob” by the lawyers and the judge “minimizes the reality of forced fellatio” and is not “appropriate”. In his opinion, the actors have absolved themselves of responsibility by justifying the use of this term, because “it is the chosen vocabulary of the victim”.
This is an example of the ignorance of what it is, the culture of rape, and the ignorance of what it can have on the victim.
Me Justine Fortin, program director at Juripop
On the contrary, this approach was relevant not to “make the child feel bad”, analyzes Me Michèle Lamarre-Leroux, defense lawyer for the Sherbrooke region.
“The child may be reluctant to use sexual terms. We don’t want to force him to use dictionary terms, ”explains the criminal lawyer. As for the question regarding jaw pain, it is more of an irrelevant question than a myth and stereotype, in his opinion.
In an interview, Mr.e Cusson agrees that his question was “extremely sensitive”, but maintains that it was necessary to ask it.
A “vexatious” question
During cross-examination, the defense attorney made the Crown jump by asking the teenager if she was negotiating with the defendant for the use of WiFi. “Are you negotiating? I want so many hours for such services? “, then asked Mr.e Cusson. A “vexatious” or even “abusive” question, the Crown prosecutor was indignant.
“There is nothing vexatious. The plaintiff herself says that to obtain additional WiFi, I was doing services of a nature… I use the term “services”,” Ms.e Cusson.
“She doesn’t use ‘service’. […] We must change our language, ”replied the judge. The magistrate added that this question gave the impression that it became the “fault” of the complainant. “I’m not trying to be vexatious, maybe I don’t understand the limits [où] I can go”, conceded Me Cusson.
The terms “negotiate” and “services” sexual for acts of sexual abuse “completely distort the non-consenting nature of these”, analyzes Malorie Comtois, of Juripop.
These words imply that the teenager “intentionally ‘solicited’ the acts and that she was consenting”, she explains.
Me Cusson concedes that his use of the word “service” was “clumsy” and that he could have asked his question “differently”. However, he maintains that he had no “vexatious intent”.
Me Michèle Lamarre-Leroux makes only one criticism of the defense lawyer: having asked the teenager why she had taken “the trouble to tell the investigator [qu’elle] knew it was wrong, what was going on”.
“We fall into the myth and stereotype of the perfect reaction. Who cares, he’s a child. She, in her journey, she was afraid to file a complaint. What difference does it make to have the answer? “, argues M.e Lamarre-Leroux.
On this subject, Mr.e Olivier Cusson agrees that this question, isolated in “a vacuum”, could be a stereotype. However, “we must be very careful”, he nuances, since the questions must be “analyzed in their entirety”.
The criminal lawyer hopes that training will be offered to address best practices, given the current “metamorphosis” of sexual assault law. He cites, for example, a training where complainants would come to discuss their experience.
“We might be less inclined to use a reproving tone or leading questions when conducting a cross-examination,” he illustrates.
Continuing education on these issues is essential, according to Ms.e Justine Fortin, from Juripop. The lawyer also hopes that the new Court specializing in sexual violence and domestic violence – gradually being rolled out in the province – will change the experience of complainants for the better.
* Fictitious first name