Mon, July 11, 2005
How the system failed me
By Sue-Ann Levy
When Sun columnist Sue-Ann Levy was sexually assaulted by a stranger in her home last August, she found her ordeal had only just begun.
She soon encountered a legal system whose often harsh twists and turns do little to inspire confidence in victims of crime.
In yesterday's Sun, Levy chronicled how the Toronto police appeared to break every rule of Procedure 05-05 in the handling of her case -- an assault by a 22-year-old who came to her condo to assemble a piece of furniture she'd purchased from him at a nearby store.
The police protocol was put in place in 2002 following the landmark Jane Doe lawsuit and the scathing 1999 review by city Auditor-General Jeff Griffiths criticizing how the police treat sex crime victims.
Yet Levy found the police offered little support or advice when her assailant
was allowed to continue working in her neighbourhood. Neither they nor other
agencies were of much help in telling her where to turn for counselling.
Three months after the assault, Levy was asked by the police and Crown how she would feel about dropping the case. She indicated she was determined to proceed.
The assailant eventually said he would plead guilty. Levy pushed for an order against him that would keep him away from her home.
Today's installment begins with Levy's continuing fight with police over the case.
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In early November, I spoke to the investigating officer on my case. When I reiterated my concerns about the assailant still working at Structube, he told me: "If it bothers you so much, walk 30 minutes out of your way ... that's what I would do."
I also raised the fact that I had heard nothing from him for weeks on end. He responded that he had 150 cases to deal with and didn't have the time to give me special treatment.
I'd had enough. I told him he was insensitive and had no idea what I was going through. I said I expected better from him. After a heated discussion, we both calmed down and reached a truce.
To his credit, from that day forward he was helpful and far gentler in his approach to my case. Later that month, he contacted me to say the Crown was considering dropping the charges -- but he was recommending against it. I let him know that I would not allow that to happen and thanked him for his support.
On Jan. 7 -- the same day city auditor-general Jeff Griffiths' follow-up audit of police sexual assault procedures was released -- I met with Crown Attorney Chris Punter, the investigating officer and two Victim/Witness Assistance officers at College Park. It was the first time I felt all parties started to take my case seriously.
Punter, who seemed harried but was understanding, indicated that the assailant wanted to plead guilty to common assault. Given the "brazenness" of the attack, however, he said he would only accept a guilty plea if it was to the original charge of sexual assault.
He explained the sentencing provisions that might come out of such a plea -- the assailant would be listed on the sex offender registry but likely wouldn't get jail time because it was a first offence. He also offered little hope that any judge would make an order that would cause him to lose his job.
I was told I could either file my victim impact statement with the court, or deliver it in person. I chose the latter without a second thought.
I felt it would be my only opportunity to try to make the judge understand what it was like to walk by Structube and see my assailant waiting on other women as if nothing had happened.
The Crown agreed that would have a far greater impact, if I could handle it emotionally.
That same afternoon, I contacted Jane Doe for a news story I was writing on the city auditor's follow-up report on the police. I told her about my own situation and she offered help.
At a police press conference the following Monday, in response to the auditor's report, I listened to Police Chief Julian Fantino insist that his force had instituted practically all of Griffiths' recommendations and they were doing a good job with sexual assault cases.
I wanted to shout that all was not as it seemed, but bit my tongue.
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The court date for the guilty plea was originally set for March 9. I was ill that day, but dragged myself to court, only to find out that the case was being put over because the scheduled judge was off sick.
It was another two months before I would return to court. On May 3 at 2 p.m., I went to the appointed courtroom, at which time I was presented with a typed apology from the assailant.
Again the scheduled judge was unavailable, and again the defence lawyer, Jody Berkes, asked to have the matter put over -- but the Crown and the trial scheduling office refused. Justice Moore was found to be free and we were sent to courtroom 509.
Shortly after the assailant pleaded guilty, I was called forward to give my victim impact statement.
As I read through it -- vocalizing not just the impact of the assault on my life but how many times I'd seen or bumped into my assailant over the nine months -- I couldn't help but cry.
I told the judge I felt being forced to leave his job at Structube should be the "key outcome" of any punishment meted out to my assailant.
"I bought my condo in Yorkville figuring it was a safe neighbourhood. I should not have to change my life, walk out of my way or in trepidation along Avenue Rd. for fear we'll run into each other ... I should be able to go on with my life feeling comfortable and at ease in my own neighbourhood," I told Justice Moore.
When I stepped down from the stand, the courtroom was silent. Crown attorney Punter then got up and argued vociferously and articulately not just for the prohibition order but a suspended sentence, which would have given my assailant a criminal record.
(Punter kindly told me later my powerful victim impact statement had helped him make his point.)
I couldn't believe my ears when Berkes then told the judge that Structube would be happy to keep my assailant on -- and that unless the judge ruled otherwise, the store would resume sending him out on house calls.
Berkes described his client's act as "youthful exuberance" and produced a psychiatric assessment that said he would be unlikely to reoffend.
Judge Moore reserved judgment and asked that all parties come back the next day at 2 p.m. for his decision. It was a difficult night for me, after reliving the assault in all of its detail.
My heart sank again the next day when Moore ruled the assailant would get a conditional discharge, meaning no criminal record. I waited for the other shoe to drop.
But he very quickly turned to the prohibition order, declaring my attacker would be restricted from being with 1 km of my home -- save and except for the purpose of using the subway system -- during an 18-month probation period.
"Just as an aside, I really, really agree with Ms. Levy, I can't believe that he (the assailant) is still working there; that the store would keep him on," the judge said. "It is just incredible that they would want to keep him on, despite all the other good qualities he might have."
Outside the courtroom -- while her son was downstairs giving a DNA sample for the sex offender registry -- the assailant's mother came up to me and apologized for the trauma I'd been through. She was in tears. I thanked her for her graciousness.
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"You were very lucky," Jane Doe told me later, noting the average time for such a case to get to trial is two years.
In most cases, however, she thinks "the legal system does not work" for women experiencing rape and sexual assault.
Asked if there's hope for change, she notes that new Police Chief Bill Blair has formed a six-person steering committee to move forward on the auditor's recommendations not implemented by Fantino. She hopes to see progress within the next year.
For his part, Blair also seems committed to making change. At a recent meeting with the Toronto Sun editorial board, he said he hopes to "move as quickly as possible" on the recommendations.
"(The auditor-general) provided us with a very useful direction," Blair said, noting he hopes to enhance the quality of training for sexual assault investigations within three months.
Says Doe: "I always look for light at the end of the tunnel. However, I am not optimistic about change ... what I have heard or seen (so far) is the impression of change, the illusion of change."
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TORONTO POLICE SEX ASSAULT PROCEDURE 05-05
Police protocol put in place in 2002 as a means to ease the reporting of sexual assaults. It followed the landmark Jane Doe lawsuit and the scathing 1999 review by city Auditor-General Jeff Griffiths criticizing how the police treat sex crime victims.
- First-response officers are to seek only basic information during an initial interview with a woman who has been sexually assaulted.
- First-response officers are to request a supervisor attend the scene of a sexual assault to ensure the preliminary investigation is conducted appropriately.
- Investigators can delay the detailed interview with a woman who has been sexually assaulted if the woman's condition warrants it.
- The detailed interview may only be conducted by an officer with specific training in sexual assault investigations.
- Where possible, a woman should be given the option of being interviewed by either a male or female officer.
- Appropriate agencies involved in Victim Services should be contacted when interviewing women with special needs.
- The Violent Crime Linkage Analysis System (ViCLAS) report is to be submitted to the police sexual assault squad co-ordinator within 21 days of the assault.
- Consistent and regular contact is to be kept with the victim throughout the
investigative and legal process.
613-797-3237
Note: Here is a classic example of how one woman can undermine the crown's "absolute prosecutional discretion" and how the power of the media can intimidate the crown into making politically correct decisions rather than legal decisions.
Most of the time the Crown do not withdraw charges against men laid by women and police normally don't have any special pull with the crown unless of course you have well known columnist alluding some very negative press.