What to expect if you report a sexual assault to the police

1. Police interview

First, if you called the police about a sexual assault, you will likely have an appointment with a sexual assault investigator. At that appointment, you will give a videotaped statement to the police. The police officer has a duty to disclose all of this information to the Crown who then must disclose your video statement to the defence lawyer if charges are laid. Any evidence you give to the Crown, police or Victim Witness Assistance Program (VWAP) employee throughout this process will be disclosed as evidence if the case proceeds.

2. Investigation by police

Next, the police conduct an investigation. They look for corroborating evidence, meaning evidence that supports the statements you gave to them during the police interview. They are looking to see if there are reasonable and probable grounds for laying charges. This means that the police have evidence to believe that the accused could have committed the offence.

In sexual assaults, there are often very few witnesses, but there are still ways to corroborate the peripheral details. The police investigation can gather that possible evidence. Even if you did not have a sexual assault kit completed or a long period of time has passed since you were sexually assaulted, the police may still find evidence to corroborate (support) the statement you provided in the interview. For example, if you told the police during your interview that you shared a taxi with a friend on the evening that you were sexually assaulted, the police can speak to that person to corroborate that part of your statement. Social media and text messages can also be a part of the evidence gathered during the police investigation.

3. Charges are/are not laid

Based on the investigation, a charge may or may not be laid. If the police do not believe an offence was committed it will be categorized as ‘unfounded.’ However, there are other reasons the police use their discretion to not lay a charge. There is no appeal process to challenge the police’s decision to not lay charges.

Robyn Doolittle investigated the high rate of ‘unfounded’ cases in Canada and published a report in the Globe and Mail. She discovered that police forces across Canada had incredibly high unfounded rates in sexual assault cases and that they were disproportionately higher than any other crime. Currently, the number of unfounded cases is lower, but that may be because of a new categorization system in place. There are also committees of community members in certain communities set up to review the unfounded files. However, there is still a lot of work to be done in this area.

If a charge is laid, you will be contacted by VWAP. VWAP is meant to be a liaison between you and the court process, including the Crown and police. VWAP employees will keep you apprised of developments in your case, and can provide you with non-legal advice about the court system. Anything you share with VWAP may be disclosed to the Crown, police and defence lawyer, as your relationship with them is not confidential.

4. Bail hearing

If a charge is laid, bail conditions will be determined or the Accused will be denied bail and the accused will be detained for the period of time leading up to the trial.

If the accused is released on bail, there will likely be a court order that the accused not communicate or associate with you and not attend your residence, employment or educational institution. If the accused does not follow their bail conditions, you should immediately call the police so that the police can charge the accused for breach of bail conditions.

After bail is established, the accused is given some time to get a lawyer, financial assistance through Legal Aid Ontario, and review the ‘disclosure’ provided by the Crown. Disclosure is evidence collected by the police during its investigation, and it will include your videotaped statement from the police interview. You are not permitted to see the other evidence collected by the police, to prevent your own evidence from being influenced by it.

5. Determination of whether the accused pleads ‘guilty’ or ‘not guilty’

It is not common for an accused to plead guilty to the charge of sexual assault. However, sometimes the Crown and defence lawyer negotiate a ‘plea agreement’, which can result in an exchange of the accused’s admission of guilt for a lower sentence. The Crown will likely consult you about this and take into consideration your wants and desires. However, the Crown can decide to make a plea agreement against your wishes.

6. You testify at trial

You will be required to testify at the trial of the accused. The trial will either be heard before a judge alone or a judge and a jury. You can expect to wait potentially a year or more from the time your statement was given to the day you testify. The Crown will prepare you to testify but is restricted from going into too much detail due to the risk of new disclosures. It may take several days for the Crown and defence lawyer to complete their questions of you during your testimony at trial. The defence lawyer’s cross-examination will involve challenging your credibility and your reliability.

You will be recounting your traumatic story, which can be very difficult and may result in reliving the same feelings you felt when you were sexually assaulted. This is one reason that having mental health support during this process is critical to your well-being.

The defence lawyer will try to raise a ‘reasonable doubt’ in the mind of the judge or jury. To do that, the defence lawyer may suggest a narrative about you in an attempt to put your credibility and reliability into question. For example, they may suggest you have a ‘motive to fabricate.’ They may try to identify inconsistencies in your evidence, even in the peripheral detail. They may also rely on the fact that you did not behave in accordance with the behaviour expected of the ‘perfect victim’, as described above. These tactics may or may not harm your case, and they may be difficult to hear.

7. A decision is made

After testifying at trial, you may or may not be allowed to watch the remainder of the trial, including closing arguments by the Crown and defence lawyer. When the Crown discusses that with you, you should indicate your wishes in that regard. Following the end of the trial, a judge will either make a decision regarding the accused’s guilt immediately or will delay providing a decision to a future date. The decision will either be communicated orally or in writing. Regardless, you will be advised of the decision usually by the Crown or a VWAP employee.

If there is a conviction (i.e. the judge or jury renders the accused ‘guilty’), a sentencing hearing will usually be held on a different date. At the sentencing hearing, you will be allowed to submit a victim impact statement and you will have the option to read it aloud. A VWAP employee or a lawyer you contact through ILA can help you with your victim impact statement. The decision on sentencing could be made on the same day as the sentencing hearing or delayed to a future date.

8. The Crown or defence lawyer may appeal the decision

Decisions regarding conviction and regarding sentencing can both be challenged by the Crown or the defence lawyer through an appeal process. As a complainant, you do not have your own personal right of appeal and therefore do not have a say as to whether a decision should be appealed. You will be notified if there is an appeal, however, you will not be required to testify in the appeal process.

One possible outcome of an appeal is to have the matter sent back for a new trial. In that case, you may have to testify anew.

Regardless of the outcome at trial and sentencing, you should feel proud of yourself! Disclosing a sexual assault and participating in the criminal justice process is no easy feat. The outcomes are out of your control, but doing what is right, for the right reasons in the face of adversity is something of which to be proud.