We’re trying to understand how we can better insert victims rights into the legal process… without superseding the rights for accused individuals.
We’re trying to understand how we can better insert victims rights into the legal process… without superseding the rights for accused individuals.
0:10 - Accused rights and victim rights
3:56 - Jane's police interview
6:32 - Understanding legal terminology: complainant, defendant, accused
7:51 - Who supports victims through the system
10:57 - Shannon's story: the permanence and power of a statement
12:07 - Cross-examination and victim preparation
15:18 - Defence lawyer perspectives
20:16 - Striking a balance between accused and complainants' rights
All sources, statistics, multimedia clips, and music credits are available on Substack.
Disclaimer: This podcast explores sexual violence and the court process surrounding it. Please listen with that in mind, and be kind to yourself. We have resources in the show notes.
Voice Actor: Under the Canadian Charter of Rights and Freedoms, upon being arrested you have fundamental rights.
You have the right to be informed as to the reason for your arrest.
You have the right to an attorney, and to financial assistance to afford an attorney if you are below the income threshold.
You have the right to remain silent, and the right against self-incrimination.
You have the right to a fair trial, in a timely manner, where you are presumed innocent until proven guilty.
Voice Actor: Under the Canadian Victims Bills of Rights, victims of crime have rights too.
The right to be informed - meaning to be told about the status of the case.
The right to protection - to reasonable measures to be taken to protect you from retaliation and intimidation.
To request your identity not be disclosed publicly.
You have the right to participation - you are allowed to write a victim impact statement if the case goes to sentencing and you are allowed to voice an opinion.
You have the right to restitution - you are allowed to seek monetary compensation through the civil system from your offender for the loss of income you may have suffered due to the crime.
Jane Aster Roe: I wonder if you noticed what jumped out at me when listening to the reading of the victim’s rights. Victims rights are much broader than the rights for accused individuals which means there’s much more room for interpretation and they’re therefore harder to enforce.
For example you can request for your identity to not be disclosed publicly, doesn’t mean you’ll be granted that request. You can ask for protection and are entitled to reasonable measures. But it doesn’t define what reasonable measures mean, and you’re not the one who decides that. You can enter an entirely different legal system and go through a whole process to try to get some monetary restitution. You can request this. You’re allowed to do that. Doesn’t mean you’ll get it. But no one will stop you from asking.
The Victim Bill of Rights exists because this is how we want victims to be treated. An accused individual’s rights are much more specific and clear because at the end of the day they’re the ones we’re considering taking freedom away from. That’s why they’re charter rights. Charter rights are the most fundamental rights we have (they’re like constitutional amendments in the States). They can’t be superseded by what we hope for victims.
In a recorded session at the Ted Rogers School of Management, a criminal defence lawyer said, quote:
"The one person who needs a fair trial is the accused person who's being charged with criminal offences, and the issue we should always be grappling with is did the accused have a fair trial? Nobody else is entitled to a fair trial, just the accused."
...unquote.
I don’t disagree. When we’re grappling with the consequences that come out of criminal trials, we need to hold fast to an accused individuals' rights to a fair trial.
I question though, whether this means that we cannot give victims better defined rights that we can uphold and standby.
We are a complex species. Capable and clever enough to invent democracy, philosophy, and the judicial system we’re critiquing in the first place.
Surely we can do better than this.
I'm Jane Aster Roe. You're listening to The Defendants, an exploration of justice for victims of sexual violence. We want to know what has to change within the system for it to actually work, and we are interrogating what justice means in the aftermath of trauma. This is Episode Two: You Have the Right to An Attorney.
Today, we're trying to understand how we can better insert victim's rights into the process without superseding the rights of accused individuals.
Jane Aster Roe: I went to talk to the police four days after my eighteenth birthday. I was invited to the child sex crimes unit to speak to a social worker and a detective about my reluctance to share my story with the police. We talk in the Earth Room. There are trees and flowers decorating the walls. I take my shoes off and stare at my socks while the police detective asks me why I don’t want to talk to her.
I tell her I don’t want to fight him because that would break me even more, I don’t want to go to court, I want to move on and the court process seems horrible. She says she gets it, and she’s not going to lie, the court process is horrible, but she hasn’t heard my story yet, so she doesn’t know whether it will even go there. Then I hit her with the big one.
I don’t want to have to see him. So, she promises I'll never be in a room alone with him.
Her eyebrows pinch together the whole time. Her forehead creases in concern.
She’s bouncing her knee slightly, and leaning forward. “I just want to hear your story.”
So I tell her my story. What I don’t realize, because I wasn’t told, is that this video recording of me, where I was just telling my story, is what will become the most important piece of evidence the police and prosecutor will have. Without knowing it, I had given my statement.
After I tell my story, we go back to the earth room and sit down.
The detective thanks me for telling her and lays out my options. For privacy, I won’t share the full details of option 1 but it basically amounted to her giving my abuser a formal police warning and a potential job loss. Option 2, she tells me, was to arrest and charge him.
Option 1. I tell her, right away. That was easy. I already had said I didn’t want to do the whole court thing. Tell him not to do it again, make those around him aware, and we’re good.
She immediately looks uncomfortable. Oh. She says. I’m probably going to arrest him, unfortunately. I sort of feel like I have to.
Then why did you ask? I demanded.
Her reply?
I was hoping you’d pick option 2.
She’d wanted me to feel empowered I guess. Like it was my choice.
Anyway, she continued the investigation, collected evidence, and around five weeks later he was arrested and that’s how I went from being a victim to a complainant.
There’s a lot of legal jargon that gets thrown around in the justice system. A lot of terms you suddenly have to know. In a sex crime case, the victim of the crime is dubbed the complainant for the purposes of the judicial process.
If you’ve listened to our first episode, you might remember that they are also the witness. As the person the crime happened to, they are usually the most important witness for the prosecution.
I personally hated being a complainant because it sounded too much like complaining, which sounds so horribly negative. Like I was a whiny little girl who wouldn’t shut up about how this man had bothered her. Like I was being a tattle tale and a pest.
But then again, I hated most of the court process, so what I was being called really was the least of my issues.
The person accused of the crime has a lot of names too. During the judicial process they will never be called a perpetrator or an abuser or assailant or anything like that because all those names imply guilt.
And you’re innocent before you’re proven guilty. So what are they? Well, they’re the defendant. They’re the one the government is charging with the crime. More commonly, they’re called the accused. An accusation of criminal activity has been made against them.
As we’ve stated - the accused has the right to an attorney. They’re getting a lawyer who works for them to get them through the process. So who gets the complainant through the process?
Many people think that it’s the prosecutor or the crown attorney. But that’s not their lawyer. It is not their job to represent the complainant, the complainant is just a witness for their case.
So let’s talk about who is here for the complainant because in theory it’s a few people. But a complainant will get passed off between them which can make it hard to form coherent support. And again, none of these people are working directly for the complainant, they all work for the government. Here’s what this typically looks like:
During the investigation, your primary contact is the police detective. These investigations can take a long time and people form relationships with the officer in charge, especially since they’re sharing such vulnerable details.
However, once charges are laid, your contact changes over the Victim Service Worker at the prosecutor’s office. The police detective can stay in touch, but the responsibility to answer questions and keep you informed is now on the prosecutor’s office.
The Victim Service Worker is supposed to guide you through the process. Sometimes these people are amazing. Sometimes they’re not.
I was told by my Victim Service person that I couldn’t go to university out of province because I’d have to be around while the trial progressed. I now know they shouldn’t have phrased it that way. They should probably have just made me aware that I would have to fly back when necessary. Which would have been an added cost, but I could have done it. I turned down a full scholarship to stay in the province because of what I was told.
If you're under eighteen when you were assaulted, you might get a Child and Youth Advocate depending on your province or state. This person is similar to the Victim Service Worker but oriented to Youth and has access to Youth based services.
Finally you have the government prosecutor. Typically you have the least amount of direct contact with this person. You’ll probably speak to them leading up to trial.
This process is not necessarily envisioned incorrectly; these people and these services exist with the idea in mind that victims need and deserve support. In a perfect world the victim would always have someone to help them through the process: the problem is that in practice the reality falls short of the ideal.
I don’t think the people in the system are bad. My theory is that they’re stretched thinly across too many victims. For example I was told I could probably get something like three weeks of therapy for free. Once I got off the waitlist. Which would take approximately three years. When the trial would probably be over. Which felt deeply unhelpful.
But it gets worse. The lack of unified support can actually hurt the case. Like I said, I thought I was just telling my story when I did my first interview with the police. I didn’t know that I was delivering what would be the most important piece of evidence that the police and prosecutors had. If I’d known that, I might have been able to give them more information, in a better way. I also didn’t know that I wouldn’t really be able to add anything or to revise it, without being called quote - inconsistent. This is a common experience for survivors. Shannon Burns told me about it when we talked. What was your understanding of the justice system before you got involved in it?
Shannon Burns: Yeah, I didn't know much. Like even when I went into the police station to give my statement. I didn't fully know what that meant. And I was like eighteen at that time. So I just Yeah, went in and then I just learned that they were going to - I was going to sit in a room and a police officer was going to come in and ask me a bunch of questions. And I didn't realize that that was like what a statement was, and that that is something that is a record of like, your situation. And then that's something that you're gonna have to refer back to throughout the whole court process. I kind of thought it was like, Oh, I'll give a statement. And then I'll be able to add to it later, or I'll be able to like, then fully tell my story. I thought it was just kind of the first step.
Jane Aster Roe: Imagine if the support systems were actually unified. If the police provided sexual assault victims with the opportunity to speak to a victim service person before their interview who could tell them about the process, and how important this interview would be to the prosecution. I think they currently don’t because they don’t want to in any way quote - lead their witness in an interview. But what’s happening instead is we’re going in the opposite direction and we’re getting interviews where victims don’t understand what the purpose of them are, and details are getting missed which can contribute to failures in prosecution.
Remember in our first episode when professor and author of Putting Trials On Trial Dr. Elaine Craig advised everyone to go to a lawyer before they go to the police? This is why. So you can understand what lies ahead in the process.
Because, if you get to trial, there’s the cross examination.
Cross examination is when a party questions the witness presented by the opposing side. So if the victim is the prosecutor’s witness, cross examination is the defense lawyer’s chance to question that witness. The goal during this questioning is to challenge the witness’ testimony, reveal inconsistencies, bring up facts that might support the defense’s version of events, and generally discredit this witness.
Now there are rules about what you are and aren’t allowed to ask. This is the part of court you’re probably most familiar with from pop culture.
Audio Clip: "Objection. Mr. Evans isn't it true that you're a longtime drug dealer and your testimony today is only happening because you signed a deal with Ms. Gibbs giving you immunity?
"Doesn't mean I'm lying."
Jane Aster Roe: During a cross, the lawyer isn’t allowed to provide their own evidence, they have to get you to provide it through phrases like, I’m going to suggest to you, and isn’t it possible that? And they aren’t allowed to badger a witness, essentially meaning they can’t be mean without a purpose for being mean - like they have to have a reason for bringing up things that would cause reasonable distress.
Sometimes complainants are prepped for cross-examination by the Prosecutor. Sometimes they’re not. I was prepped by my Child and Youth Worker. Prep consisted of a pamphlet telling me who all the people in court were, what cross examination was, and re-watching my police interview.
In sex crime cases, the cross examination is when the defence lawyer typically has to essentially “rip the victim apart” on the stand because that can often cause the victim to say something that perhaps doesn’t fit with their original testimony, or is contradictory to something they said earlier on the stand, and that’s how a lawyer can show that there is reasonable doubt a crime was committed by their client.
Since the cross examination is so important, and is where so much pain takes place, I asked lawyer Amanda Carrasco why prosecutors don’t spend more time helping victims prepare and she reminded me of an important and obvious fact:
Amanda Carrasco: You do have to be careful in terms of coaching a witness. So you have to navigate those boundaries as well in terms of witness prep and that can be really, really challenging because you can't tell them what to say, there's ways to do it, but it's also a very fine line, you know. That's not an easy thing.
Jane Aster Roe: The prosecutor is not your lawyer. You are their witness. A witness has to give testimony freely without interference from the prosecution. If the prosecution spends too much time prepping you for what you're about to encounter, they risk destroying the integrity of the case. It makes sense, but it's yet another example of how the system is set up to leave you vulnerable.
Let's look at how attorney Mike Kruse handles cross examination in these cases.
Audio Clip: "I'm going to pick out every single inconsistency, and I'm going to hit them with the hardest right out of the gate. There's always inconsistency, even in a truthful witness...
Jane Aster Roe: He goes on to say:
Audio Clip: Then you have to think about what are all the improbabilities in their statement, things don't accord with common sense. You're cross examining about that as well, and going through it carefully.
You're presenting rhetorical questions to them in a leading way that show that their story doesn't make sense. You're then working their version of events to create more inconsistency. And if you if you see a good lawyer cross examine, it's a real an art form. It's learned, but it's not a science, but it's a real learned behavior.
It's leading questions, leading a person down a garden path. And I've seen good lawyers really destroy very brilliant people who are not prepared to testify, they don’t know what’s hitting them."
Jane Aster Roe: A pamphlet handed to you by a victim service employee can’t prepare you for that. And it’s why many victims describe being so traumatized after trial. Listen to these quotes from a 2025 Guardian article called “Three women speak: the trauma, humiliation and shame of being a victim-survivor in the court system.”
Voice Actor: "They expect the victims to remember years after what had happened to them in such great detail. How are you going to remember every single little detail about something traumatic that has happened to you?"
Voice Actor: "It felt retraumatising to the point where the trial process was significantly more traumatic than the actual rape."
Audio Clip: "The incident was horrible, and then the court case came about and I do feel that it was worse than the assault."
Jane Aster Roe: During my cross-examination I dug my nails into my arms so hard I drew blood.
We wanted to find defence lawyers who would talk to us about what it's like defending sex crime cases. Nobody really wanted to talk to us, so we went looking for where they've already spoken about it.
Here's Ryan Handlarsky and Maya Shukairy speaking on the Who Cares podcast.
Audio Clip: "People who are not defense lawyers don't understand, I think, which is why I love defense lawyers, to get back to the point they do understand, you know, like they understand the pain that I'm I'm going through, and so, yes, the stress for criminal defense, particularly when you have a client who you believe is innocent."
"and who's facing a lengthy custodial sentence, potentially?"
"Right…well, on a sex assault, it's just an all or nothing proposition, like the life as the person knows it is going to be over if you're found guilty of a sex assault, and typically, the clients who are charged with a sex assault are… there... it's sort of like, I don't know how better to say this, like normal people crime, you know, it's not something...
"No criminal background, right? No involvement, no prior involvement in the criminal justice system. And this is their first time, and then once they're found guilty, it's like they're stuck in the system for the rest of their lives."
Jane Aster Roe: These are normal people, who’ve had no involvement with the system, and need to be saved.
This outlook a very good encapsulation of I think the general attitude that we found amongst defense lawyers.
In that same podcast episode. Maya said this:
Audio Clip: "It's becoming more and more frustrating in the practice, especially in jury trials, sex assault trials, it is becoming frustrating because the law is making less and less sense, and when the judge has to apply the law, it just makes it very difficult to defend these types of cases."
Jane Aster Roe: I don’t actually know what laws she’s referring to, but I would guess she’s talking about rules that require you to get permission from a judge before submitting prior sexual history evidence for victims, as later in the episode they reminisce about being able to do so. I’m curious about her claim that it’s harder to defend these cases when statistics show that these are the easiest cases to win for defense lawyers.
What I will say again is that we as a podcast team are not advocating for a system that does not give fair trials to accused individuals.
I think defence lawyers are incredibly important and I think their job is deeply stressful.
I also do not blame defence lawyers for operating under the assumption that their client is innocent because that’s their job, but it adds an additional obstacle for making things easier for victims if defence lawyers are resistant to any sort of rule change that is put in place to try to make the court process even slightly easier for survivors.
The stakes are high for accused individuals, it’s true. But the stakes are high for victims too.
Perpetrators of a sex crimes have delivered them extreme, long term consequences and we cannot seem to hold them in any way accountable.
The problem when you’re trying to solve huge systemic issues like this is that you can get tunnel vision and lose track of the unintentional consequences.
There’s a case currently moving through the Ontario civil system that’s trying to overturn the right to a speedy trial. The rationale is that sexual and domestic assault cases are sometimes stayed, meaning thrown out because they took too long, which means that potential offenders go free without being evaluated by the justice system.
The problem with overturning this right is that it causes huge repercussions to ALL accused individuals. It’s the same reason as to why we assume innocence, what happens to that person who was falsely accused or charged under a system where they could wait for years for their chance to prove their innocence?
Additionally, our legal system is based on case precedent, which means that what is decided in a sexual assault case could conceivably be applied to other types of cases. In other words: we need to find a way to make our system better for survivors, yes, but we can’t do so at the expense of accused rights.
So. We want solutions that are not going to make things “less fair for accused individuals” but are going to make the process more fair for victims.
I think part of the problem is that we’re fixated on rights as absences. Meaning you have the right not to be harmed. The right for bad things to not happen to you at the hands of other people. And once those rights have been violated. You have the right for the system to exact punishment which focuses on the person who harmed instead of you who was harmed. What if we looked at it like you have the right for good things to happen to you, instead of just for bad things to not happen? Safety, as not just the absence of bad things… but the presence of good ones?
I think that starts with going back to the victims bill of rights and creating more specific, defined rights that can be enforced. For example, let’s put systems in place to ensure victims actually receive the quote - reasonable protection that they are supposed to be entitled to.
If we know the system traumatizes people, why aren’t we finding a way to have it offer free therapy that you have access to while going through the court process? Why aren’t we allowing victims to sit down with someone ahead of talking to the police who can explain the process?
This doesn’t have to be hard. An author named Don Miguel Ruiz said that we are all living in a world that someone else imagined.
The most imperative thing to remember in working to change these systems is that we made them in the first place. So we can start to imagine the system we want to exist. And then work towards it.
Jane Aster Roe: You've been listening to The Defendants, an Aster Roe Production. It's executive produced by me, Jane Aster Roe, Rachel Arundel and Katie Jensen. Our story producer is Jessica Strachan. Editing and sound design by the incomparable Isis Madrid and Katie Jensen. Our research producer is Charlotte Gregg, our fact checker is Rachel Bromberg and our mental health consultant is Michelle Crossman. Lindsey Keene is our outreach coordinator. Dawson Fleming is our production assistant. The voice actors featured in today's episode were Lindsey Keene, Rachel Arundel and Mackenzie Langdon. Special thanks to Annette Studios and Vanessa Zoltan. We explored a lot of information in this episode. All our sources are in the show notes. It's also there that you will find resources and organisations that offer support. Thank you for listening.