VI. The Cultural Frontier: #BeenRapedNeverReported, Unfounded, and #MeToo

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It is clearly an understatement that addressing the systemic problems of law enforcement for sexual offences has been an ongoing challenge for the law. Change has been actively promoted and pursued, at least since the early 1980s, through myriad statutory reforms as well as by Supreme Court of Canada jurisprudence, under the Charterand at common law. Strategies to improve reporting and law enforcement have included complainant anonymity and multiple changes to the law of evidence, including on the scope of cross-examination and production of complainant records. Progress has been slow and the results discouraging: rates of reporting have remained low; the trial process is problematic for complainants at many levels and in many ways; and the victims of sexual offences have been reinforced in their skepticism and unwillingness to trust criminal justice.130

That pattern has been disrupted by the arrival of an alternative narrative. Victims of sexual offending, including workplace harassment and other misconduct as well as criminal offences, stood up, pushed back, and advocated for solutions, including sanctions outside formal legal processes to hold transgressors publicly accountable. The events that generated this narrative could not have been predicted but, once ignited, evolved spontaneously and organically. Movements that forged bonds of solidarity, connecting victims of sexual transgression through shared experience, re-set the culture around sexual offending in Canada, the United States, and worldwide. In doing so, victims, as individuals and as a class, began to replace the assumption and perception of powerlessness with newfound appreciation of their essential power as change makers.

In 2019, the clock cannot be turned back, and there is little doubt that sexual offending has entered a new era. As noted, this transformation took place, for the most part, outside the formal processes of the law. That said, this update and discussion of victim privacy would not be complete without some discussion of that narrative and how it has defined the cultural and socio-legal legal environment. The focus in this brief discussion is on three pivotal moments. The first arose with Jian Ghomeshi’s prosecution, trial, and acquittal on charges related to sexual domination and assault, from late 2015 to early 2016. The second is Robyn Doolittle’s game-changing investigative report on police practices and the large incidence of sexual complaints dismissed as “unfounded”, which was published in February 2017. The third is the #MeToo movement, starting in October 2017, which expanded the social media campaign against sexual transgression, globally and exponentially. Each had monumental impact on conceptions, perceptions, and assumptions, and cumulatively consolidated key changes in the public discourse and cultural narrative of sexual offending.

Specifically, solidarity across borders, generations, race and ethnicity, and experience empowered victims by attenuating the isolation, shame, and stigma traditionally and chronically associated with sexual offending. Part of that empowerment led women, in significant numbers, to waive the protective right to anonymity that made this class of victims invisible in the criminal justice system and to the public. Transgressors could now be held accountable in the public domain and very publicly, by their victims and accusers. Finally, these dynamics of change began the difficult – and at times seemingly insuperable – task of breaking down the barriers to effective law enforcement. Perhaps most optimistically, the process of reforming police practices has started across Canada and data in the last year or so have tracked the first substantial increases in reporting in many years.131

Complex forces that are fluid and organic – yet evolving – have bearing on this study for two reasons. The first speaks to reporting and the early signs of movement away from the chronic underreporting of sexual offences. #BeenRapedNeverReported and #MeToo enabled a collective perspective to take shape and begin the healing process of dulling and reducing the isolation, stigma, and shame of violation that chronically deterred victims from reporting sexual offences. In tandem with the impact of the “Unfounded” investigation, this has led to increases in reporting that were not achieved through the process of formal law reform. The second is closely related because equally, and by the lessening the stigma and shame of transgression, the networks of support that emerged spontaneously in the digital world motivated scores of sexual assault victims to speak and stand up, for themselves and for others, and to do so increasingly in their own name.

The first transformative movement – marked by hashtag BeenRapedNeverReported – formed part of the events surrounding criminal charges against former CBC radio star Jian Ghomeshi. In the circumstances, his trial could not have been other than notorious: the defendant was a celebrated media star who claimed that he was being unfairly treated for enjoying sex that involved choking and other acts of domination and violence. This pattern of behaviour was substantiated in media stories reporting complaints from up to nineteen women, as well as two men. Though the trial dealt with discrete events, the media and public narrative was awash in sordid details about multiple complainants, alongside Ghomeshi’s rebuttal that all sexual encounters had been consensual.132 Part of the narrative took the form of a rapidly snowballing social media movement – hashtag BeenRapedNeverReported – which began in October 2014 as a forum for victims of sexual assault to share their stories.133

The significance of Ghomeshi’s trial and acquittal on March 24, 2016, which was experienced by the complainants and many others as a form of betrayal, cannot be quickly or lightly discussed. Two points are set apart for purposes of this update. The first concerns a monumental disconnect between the public and courtroom dynamics at play. Specifically, when the story of Ghomeshi’s firing from the CBC broke, multiple victims who had not filed complaints broke their silence. At that point, police urged complainants to come forward, reportedly providing assurances that their accounts would be taken seriously, and stating that “[w]e believe them right from the outset”.134 What then transpired in the trial process, especially in testing the evidence and credibility of the complainants, did not conform to expectations that had formed in the public discourse, especially concerning Ghomeshi’s supposed guilt. In the circumstances, his acquittal was a shock that confirmed the flaws of a system that could not provide justice, either in its trial process or its verdict, for the victims of these offences. While it was countered that the system had worked as it should, reserving the benefit of the doubt for the accused, the acquittal sparked massive anger and outrage.

The hashtag BeenRapedNeverReported was a critical part of the dynamic, before and after the charges, for the solidarity it forged and promoted among a wide and diverse class of sex assault victims. A chorus of voices that could not be shut out represented an organic and reflexive response to events, and in certain ways it changed the culture of sexual offences so that there was no going back.135 Unlike Unfounded, discussed below, the Ghomeshi trial did not build trust in the system, to the contrary. But it mobilized communities who, by words and actions, expressed their determination to support each other, speak out against perceived injustice, and advocate fundamental, systemic change.

Second, Ghomeshi’s trial focused attention on individual complainants who did not stand alone, but together against their transgressor, and had high profile in the media. Though only Lucy DeCoutere was an identified complainant, the three came forward together, supporting and protecting each other throughout the process.136 Linda Redgrave was one of the Ghomeshi trial complainants who revealed her identity, and on the day of the verdict, she asked the trial judge to lift the publication ban on her name.137 Redgrave launched comingforward.ca, a resource for other survivors, explaining that by revealing her name and face she was “holding herself accountable” to that project.138 As a result, other sex assault victims began to feel less isolated and shared their experiences through the hashtag, other social media, and in other ways, and did so both anonymously and by self-identifying.139 At a simple level of observation, the point is that the law cannot direct this kind of change. It is catalyzed instead by events, and the Ghomeshi dynamics served, at the level of shared experience on social media, to open up a discourse and begin reversing the stigma and shame that silences and renders sex assault victims invisible.

Distrust of the system, from making a complaint through to a courtroom verdict, is a profound and longstanding barrier to the enforcement of sexual offences.140 On February 3, 2017, The Globe and Mail published an in-depth investigative report by Robyn Doolittle, titled “Unfounded: Why Police Dismiss 1 in 5 Sexual Assault Claims as Baseless” (“Unfounded”), which exposed assumptions and practices of policing, nationwide, that confirmed and reinforced victim distrust of the system.141 Briefly, after gathering and analyzing national policing data, The Globe and Mail discovered that one of every five allegations of sexual assault is dismissed and catalogued as “unfounded”. In sheer numbers, it meant that an average of 5,000 cases of sexual violence per year was reported to police, but dropped out of the system “long before a Crown prosecutor, judge or jury [had] a chance to weigh in”, leading to “a game of chance” for sexual assault complainants.142 More to the point, the high rates of unfounded designations in police units across Canada suggested that large numbers of complainants were not believed, and this “reinforce[d] damaging myths that women lie about sexual victimization”, which could act as a “deterrent to already low reporting”.143

Suffice to say that Unfounded sparked a storm of controversy that led to massive reviews, nationwide, of case files and policing practices. This was referred to, in a follow-up by The Globe’s Doolittle, as “The Unfounded Effect”.144 Though so much more can and should be said about the investigative journalism, its consequences for police accountability, and its impact on police practices, two observations again stand out. First, according to data, unfounded rates began to fall as reporting rates started to show an upward trajectory.145 Meanwhile, police practices were revised and reformed, with at least one investigation initially designated as unfounded resulting in a conviction 19 years later.146 Second, the response led some complainants, including Ava Williams, whose story was profiled in Unfounded, to reveal their identity. As Williams explained, “I feel like I’m in a place that I can use my voice to help other people”.147

From one perspective, anonymity for sexual assault complainants confirms or underlines the view that this class of victims requires protection – due to the shame associated with these offences – to promote law enforcement. Mandatory anonymity also assumes and reinforces their lack of confidence in the justice system. Despite extensive law reforms aimed at the barriers, trust in the system is not easily won. In light of that longstanding reality, the impact of Doolittle’s investigative journalism, the Unfounded Report, and the systemic changes it forced, cannot be easily overstated.

In sheer scale and magnitude, #MeToo eclipses the Ghomeshi trial and Unfounded investigation, both of which were local to Canada. #MeToo dates from 2007, when activist Tanya Burke introduced the hashtag to support women of colour who had been victims of sexual assault. Resurrected in October 2017, soon after women came forward to tell of sexual harassment and assault by Harvey Weinstein, #MeToo served in that context as an invitation to victims to come forward. As tweeted by Alyssa Milano on October 15, 2017: “Me too. Suggested by a friend: If all the women who have been sexually harassed or assaulted wrote ‘Me too’ as a status, we might give people a sense of the magnitude of the problem”.148 The movement it stirred was about reclaiming power and seeking accountability for sexual violence against women in its various forms.149

This call to action rapidly became a social media phenomenon, worldwide, releasing a profusion of voices that would not be stilled and could not be silenced. Within ten days, 1.7 million tweets were sent, with 85 countries counting more than 1,000 tweets on the hashtag.150 #MeToo generated allegations of misconduct, harassment, and assault against a variety of prominent men in business, entertainment, and the media. In some cases, this led to charges or the loss of powerful positions and roles for those accused of sexual transgressions.

Like #BeenRapedNeverReported, #MeToo connected individuals in a discourse of sharing that validated experience, legitimized the movement, and profoundly altered public discourse and its responses to sexual offending. #MeToo was a force worldwide, including the United States and Canada. Most notably, Statistics Canada reported a 13% increase in reported cases of sexual assault in 2016 and 2017. In 2017, there were more police-reported sexual assaults than in any year since 1998, and fewer complaints deemed unfounded.151 The number peaked in October, and the reports in October and November – just after #MeToo began – were higher than in any other calendar month since comparable data were available, in 2009, with reports to Winnipeg police rising by 142%.152 There was a substantial increase in demand on Canada’s sexual violence support services, with calls to the Ottawa Rape Crisis Centre increasing by 100% since #MeToo.153 Similarly, the Barbra Schlifer Commemorative Clinic in Toronto reported an 83% increase in the number of requests for sexual assault counselling.154

As stated, transformative change of this kind cannot be planned, and once it has taken place cannot be turned back. If #MeToo was a more global version, it served to legitimate, validate, and extend the impact of #BeenRapedNeverReported and Unfounded. The data confirm that in combination, these intersecting events fundamentally challenged the status quo of sexual transgression and led, in a relatively short period, to far-reaching change in the discourse, the efficacy of law enforcement, and the validation of victims’ experiences.

To conclude, there can be no doubt that sexual transgression is a profoundly private and intimate experience that strikes at the core of a victim’s social, psychological, and sexual identity. There is likewise no doubt that the psycho-social dimensions of violation and the socio-historical setting of sexual offending created deep-seated and systemic barriers to the reporting and enforcement of the criminal law. Through various episodes of reform, the law has wrestled with these challenges. Protecting the identity of victims was one strategy to mitigate the stigma of these offences and promote enforcement; in the face of compound and overlapping barriers, anonymity was not sufficient to build trust in the system.

Meanwhile, the forces that trigger systemic change can be enigmatic and unpredictable. For whatever reason, the momentum in Canada rose in crescendo to cause tectonic shifts in the social, psychological and legal culture, as well as in the public discourse of sexual offending. Of all the complexities and insights that are found in these narratives, perhaps most instructive here is the way those who have experienced sexual offences have started to work together to demand accountability – and many have begun to shed the cloak of anonymity in publicly vindicating their rights and standing in solidarity with others. In doing so, they distanced themselves from the shame and stigma that for so many years reinforced the barriers to reporting and enforcement, and the perception that they needed the law’s protection to avoid being publicly named and identified as a victim of sexual assault.

The process of transformation catalyzed by #BeenRapedNeverReported, Unfounded, and #MeToo is incomplete, and challenges remain. The vital point here is that systemic barriers have been fractured and weakened, albeit not removed. Sufficient trust in their status and power, and in changes to criminal justice, has led complainants to report offences and, in doing so, to shed some of the shame and stigma of the past. In sum, a remarkable and incalculable power shift has occurred, transferring power of those who have suffered sexual transgression.

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