Undone
Hundreds of sexual assault cases each year are labeled "unfounded" by Canadian police departments. Victims and advocates are demanding answers.
Jennifer O'Connor
The sea will drum in my ears. The white petals will be darkened with sea water. They will float for a moment and then sink. Rolling me over the waves will shoulder me under. Everything falls in a tremendous shower, dissolving me. --Virginia Woolf, The Waves
Terese remembers the feeling. It's like treading water just below the surface and looking up, struggling to see the world as something washes over you. Gasp for breath. Memorize his face, his blond hair. Turn away from the stairs, look back in the living room. That doesn't sound right. What is she doing? It doesn't sound like they're having fun. Let the sound of her moans, low and groggy, over and over and over, disappear. Let the sight of her legs hanging limply, him naked, kneeling in front of her on the couch, slip away. Just go under.
Terese's sister shakes her awake. She is naked, lying next to a man she met in a bar the night before while celebrating her 22nd birthday. She remembers meeting this guy and his friend, she remembers walking away from them, but most of the hours since then won't surface in her memory. It's morning, and one of the men has called a cab. As they drive out of the posh Rockcliffe Park area of Ottawa, Terese looks in her purse. No money. No bank card. Realizing she's been robbed, she asks for a pencil to write down the address and goes home. In the afternoon, she can feel from the ache in her body that she has had sex. "I think you were abused last night," says the doctor at a walk-in clinic, words Terese had been hoping not to hear and doesn't want to accept. That evening, she calls the police, who take her to the hospital and get her statement, now part of a 60-page report. It begins, "Adv she and her sister were victims of a rape last night..." and ends, "This file will be finalized as unfounded."
According to Statistics Canada, for a case to be deemed unfounded "the police investigation must establish that a sexual assault did not occur or was not attempted." In 2002-the most recent StatsCan info available-an average of 16 per cent of sexual offences reported to police nationwide were classified this way, a rate that had remained steady since 1991. (By comparison, seven per cent of other violent crimes, such as homicide, abduction and robbery, were catalogued as unfounded in 2002.) "I think it's a statement on women's equality," says Susan Havart, administrative coordinator and counsellor at the Sexual Assault Support Centre of Ottawa. "Sexual assault cases are perceived differently in the courts and through the legal system. It speaks volumes that those that they don't want to do anything about or can't do anything about get pushed into that unfounded category."
Cases like Terese's are not pursued to court, nor are they reported to the Violent Crime Linkage Analysis System, a national database that allows police to identify whether someone may be responsible for multiple offences. They are not included in annual statistical reports, and, in many jurisdictions, information about them is only available through Access to Information requests. StatsCan no longer requires law enforcement agencies to supply data regarding these files. Most people don't even know the term exists. How does an investigation establish that "a sexual assault did not occur or was not attempted"? Too often, by scrutinizing who a woman is and overlooking how investigations are supposed to be done.
Some ripples glimmer on the surface: the Criminal Code defines sexual assault as "a crime when someone forces any form of sexual activity on another person without that person's consent." In 1983, Bill C-127, the so-called rape-shield provision, passed, ostensibly making it easier for a woman to report to police and to testify in court; the vast majority of people-85 per cent-who are sexually assaulted are women. It's most likely to be by someone they know. About 88 per cent of survivors don't report what happened to police. Chances are it's because they "dealt with it another way," didn't feel it was "important enough" or "felt it was a personal matter." Nationally, 44 per cent of cases that police are told about-and "founded"-are cleared through laying a charge. For those that proceed to court, fewer than half end with a conviction.
"The cops think, 'I'm going to drive up in my car. I'm going to walk up there. She's called me. She wants me here. And she's just going to tell me what happened,'" says Joanne Archambault, a former sergeant with the San Diego Police Department and training director of Sexual Assault Training and Investigations of Washington state, which offers training and consultation on sexual assault.
There are rules as to how officers carry out an investigation. The Toronto Police Service's Criminal Investigations Procedure 05-05, Sexual Assault, for example, requires first-response officers to contact Multilingual Community Interpreter Services, if needed. (A 2004 Auditor General's report, the most recent available, found that this didn't happen most of the time.) Toronto Police Detective Wendy Leaver is an authority on assault investigations and has trained officers across the country. "My victims are strangers," she told the Cornwall Public Inquiry in 2006. "They walk in off the street.... Just because I'm an experienced investigator, I have to stop. I've got to step back, and I've got to be sensitive. I hold the power. This person is sitting in front of a police officer, and you can never forget that....You're in control. It is one of the most-how can I say?-important training parts that we do and you have to be suited for the job and you have to want to do it because you can make or break it."
Despite the décor-framed prints on the offwhite walls, a grey rug that matches the dark couch and chairs-the interview room still feels sterile. It's a week later, and Terese has barely slept. She sits on the couch, her legs crossed, arms folded on her lap, and tells her story.
"I hadn't had a cigarette all night," she says and sighs. I feel so guilty. "So I agreed to go out with them." She shakes her head. "We got downstairs, out to the patio to smoke, and I put down my drink to light my cigarette." Pause. That's when it happened; it's the only time my drink was out of my hand. Then, she remembers her thoughts: "I don't know where I am." His voice: "You're a really good kisser." An image: her knees being held apart. And darkness.
I'm screwing it up. I'm not showing her the right way to be. What does she want me to say?
Detective Theresa Kelm sits in a chair to the right of Terese. She's been doing this job for many years, she says. She shifts in her seat as Terese speaks, resting her feet on the coffee table, stretching her arm out on the back of the chair.
The detective has questions: "How far away from the drink are you?" "Why don't you ever ask, 'What's going on?'" She leans forward. "Sometimes we do things in our lives that we think is the right thing at the time, and then later on we realize, oops, that was a mistake. Do you think that's what happened here?"
Terese hunches her shoulders, stops making eye contact. What if I look like I'm lying?
The meeting with Detective Kelm lasts just over an hour. Later, the officer writes in her report, "During the above interview, [Terese] did not display any obvious signs of emotion."
Lee Lakeman is a spokesperson for the Canadian Association of Sexual Assault Centres and has been a rape crisis counselor for more than 30 years. Having answered crisis lines across the country, she's noticed some patterns. If a woman lives in a poorer neighbourhood, a rural area or on a reserve, if English isn't her first language, if she's reporting about a man with any social privilege, or if she has none, she is more likely to have her case labelled unfounded. "Our biggest problem," says Lakeman, "is women are not taken seriously when they report and are immediately questioned as to their integrity."
"There are so many myths and stereotypes around sexual assault," says Havart. "Give women credit. Women know the difference between rape and making love. Why would women put themselves through all of that stuff-the rape kit and the hours of investigation? To get attention? To get back at her boyfriend because he left her?"
We still have beliefs about who rapes, who is raped, what we'd do differently so it wouldn't happen to us. We rely on a justice system that gives individual officers the power to make assessments and assumes that they don't have prejudices of their own.
What do numbers tell us about those assessments? Take a sample from 10 cities (see sidebar), then consider the three cities with the highest percentages of unfounded cases: Whitehorse (33 per cent), Ottawa (28 per cent) and Vancouver (20 per cent). Consider geography, age and gender (statistics regarding race are not kept).
The RCMP detachment in Whitehorse serves the entire city, so it's not possible to make any assessment by neighbourhood. But the median income in this city is $31,109, compared to the national average of $23,307. About one-quarter of the people are Aboriginal. Most speak only English, but 10 per cent speak a "non-official language." The survivors here, with one exception, are women, mostly in their 20s and 30s.
Ottawa released the number of reports in each district, but only reported the number of unfounded cases for the entire police service. The age and gender of the "victim" in each unfounded case was included. Again, most of the survivors-91 per cent-are women, and two-thirds of them are in their teens and 20s. In contrast, in cases that resulted in charges being laid, 82 per cent of survivors were female. Most (32 per cent) were in their teens, but many (21 per cent in each case) were in their 20s or 40s.
The Vancouver Police Department is divided into four districts. In District 1 and District 3, 19 per cent of cases were unfounded. In District 2 and District 4, 21 per cent were. District 2 includes parts of Northeast Vancouver and the Downtown Eastside, the poorest neighbourhood in Canada and a community that has almost twice as many "visible minorities" as the provincial average; 8 per cent of people here are Aboriginal. District 4 serves Vancouver's Westside. More people here fit into the $80,000+ category than any other income bracket. Twenty-eight per cent are members of visible minorities, and only one per cent are Aboriginal. The vast majority (96 per cent) of survivors who report to the VPD are women; more than one-third are between 20 and 29.
What do these statistics say? "It should be noted," writes Sgt. Mark Groves of "M" Division RCMP in a statement, "that the Yukon has a small population. Therefore, crime stats often vary from year to year. In some cases only one or two incidents can change a percentage substantially. Historically, there has been a significantly higher sexual assault incident rate in Nunavut, Northwest Territories and Yukon as opposed to other provinces." A report on an unfounded case, say Staff Sgt. John McGetrick of the Ottawa Police Service, "has to be very well detailed and articulated. It's not something they can just write down.... Every case is examined on its own merit. The officers are accountable for the decisions they make."
In a soon-to-be-released Department of Justice report, Police Classification of Sexual Assault Cases as Unfounded, authors Linda Light and Gisela Ruebsaat produce information gathered from the RCMP in Chilliwack, Langley and Richmond as well as from the VPD. They point out that highly subjective considerations play a part in police decision-making: Does she know the man who raped her? Does she have mental health issues? Unfounded.
Was force used? Did she resist? Did she say no? Does she seem upset? Founded.
Light and Ruebsaat's findings are congruent with earlier research, such as So Few Convictions: The Role of Victim-Related Characteristics in the Legal Processing of Sexual Assault Cases, a 1999 PhD thesis by Janice Du Mont, and Beyond Reasonable Doubt: The Influence of Victim Stereotypes and Social Biases on Police Response to Women's Complaints of Sexual Assault, by Martha Muzychka, published by the Provincial Advisory Council on the Status of Women, Newfoundland and Labrador, in 1991. The fact that the Supreme Court has ruled several times, most famously in 1993's R. v. Osolin decision, that factors such as a woman's emotional state, her economic standing, and whether or not she knew the rapist are irrelevant seems to have limited impact.
In Canada's Promises to Keep: The Charter and Violence Against Women, a five-year (1998-2003),nationwide study published by the Canadian Association of Sexual Assault Centres in 2004, researchers interviewed 100 women who had been physically and sexually assaulted. Investigators took pictures of the place of attack in only five instances, and only six women had their injuries photographed. Possible witnesses were interviewed in just 33 cases. "There are several cases of sexual assault where the woman has not had a forensic exam," writes Lee Lakeman, author of the report, "and the police say the reason for not pursuing the rest of the investigation is a lack of evidence [emphasis added]. There are also cases where the woman has given a description of the man, or even has his name and knows where he is, and the police do not proceed with picking him up for questioning." At the time the report was written,28 of the 100 reports were considered unfounded.
There are other examples of protocol being ignored. Rape crisis counsellors tell of police not sending a woman for a rape kit to gather forensic evidence, of women being threatened with public mischief charges, of police not recording a woman's complaint at all. Light and Ruebsaat's study shows that at least a quarter of the time files don't contain any information about an identified suspect, and most often suspects aren't interviewed and don't give a formal statement. In 2004, The Auditor General's Follow-up Review on the October 1999 Report Entitled: "Review of the Investigation of Sexual AssaultsToronto Police Service" found that-contrary to procedure-divisional officers were deciding whether cases were unfounded and not getting the needed written agreement from a detective sergeant.
Archambault advises officers how they can carry out more effective investigations. She suggests they not stand over the survivor, and urges them to watch the woman's body language to see if she is uncomfortable, use the woman's own terminology when speaking with her and clarify the meaning of any slang in her report. "Police officers just don't think about those things," she says.
She also contradicts some common beliefs. For example, a delayed report is not proof that a woman is lying (she may be intimidated by police or not want her family to find out what happened, for example), and women may change details not because they're untruthful but because they may be blaming themselves or trying to say what they think police want to hear. "As soon as cops sense that somebody is not telling them the truth," says Archambault, "then they think that this person is a liar." Sinking. Shouldering. Dissolving.
Another interview room, two weeks later. Terese pulls her plastic chair up to the rectangular activity table: Detective Kelm, to her left, sits on a padded office chair. There's nothing on the wall, no rug or floor lamps. They haven't spoken since the first interview. Over the next 10 minutes, Kelm asks questions about the lawyer Terese has contacted and what advice she has been given, about the joint she smoked the night of the assault. Lawyers first, now joints. Just close the fucking case. Having interviewed the accused men, the detective recounts what they told her. What is going on here? What is she talking about? She's not telling me his memories of the night; those are my memories. She says that the results of the sisters' drug tests won't be back for five months, that the men have offered to take a polygraph, "and these polygraph tests are extremely reliable.
"Since you don't remember having said no to them, you don't even remember having had sex was what you told me last time.... I don't have anything to indicate that there was a sexual assault, and this file is going to be closed." Without pausing, she adds: "It's funny how you're not surprised, eh?"
I want to punch her in the face.
The Criminal Code defines consent as saying yes rather than not saying no. No one can give consent if she's been using drugs or alcohol. There is no record that police contacted the cab driver or the doctor who first saw Terese. Deep within the file is one other detail: Terese knew that too much time had passed before testing for drugs to show up in her blood. Her sister also reported, and in her case there was no such delay, but her blood was never checked.
So files become flotsam. Women are calling for major changes to the system we have now. "What we want," says Lakeman, "is convictions and no prejudgment diversion. Because we want to put the pressure on the highest level of the justice system, which is the judge.... Then, we think we would know considerably more about what's going on overall, and it would be more possible to challenge it." Also, say advocates, if police had to share more information about unfounded cases, it would make them more accountable for their decisions and help get rid of the myths around sexual violence.
"Police have a tendency to isolate themselves," says Havart of Ottawa's Sexual Assault Support Centre, "and think that the law is the only way and that they can't learn anything." In some cities, such as St. John's, Regina and Halifax, sexual assault counsellors are invited to speak with new officers during their training. In other cities, they're even more involved. The Sexual Assault Support Centre set up a rapport committee with Ottawa police. They meet every other month so the frontline workers can talk about what they're hearing, what's bothering them and what can be done about it. There's a similar program in Winnipeg, where staff at the KlinicCommunity Health Centre's Counselling Services and Sexual Assault Program meet with local officers. Maybe Officer X stands over a woman, seems to bark questions at her, says Nadia La Rosa, an intake worker at Klinic, and they can talk about why that isn't the best way to go about getting information. Sometimes Officer X changes his behaviour; sometimes he doesn't. The Toronto Police Service had a steering committee (members included well-known advocates Beverley Bain and Jane Doe) that was working to improve sexual assault investigations. It was shut down in November 2007 with no explanation. The success of all of these initiatives is dependent upon the goodwill of individuals.
"A lot of times," says Pamela Rubin, coordinator for the Women's Innovative Justice Initiative, "what police are doing when they label something unfounded is reflecting their view that there is a lack of sufficient evidence to receive a conviction." Police, she says, need to be clear that their standard is "reasonable and probable grounds," which has a much lower threshold of proof. In fact, sexual assault response teams-made up of police, prosecutors, advocates and medical staff, and most common in the U.S.-agree on protocols as to everyone's proper role. Many, says Rubin, direct police to "not label cases unfounded because you feel there's insufficient evidence for a prosecution." What's needed, she adds, are more highly trained investigators and a change so police aren't rewarded for getting things off their desks quickly.
"I think a lot of police are trying," says Lakeman, "but I don't know that they're particularly successful. Partly, the framework needs to be dealt with. They have to have the support of their superiors to actually do even a basic, good policing job." If photographs were taken, interviews properly conducted, medical tests ordered, she says, the percentage of unfounded cases could be reduced by half.
These approaches have worked in some U.S. cities. In 2005, according to the FBI, 92,619 rapes were reported and 5,311 of those cases were deemed unfounded (however, the FBI doesn't require that all agencies report unfounded files). Annette BurrhusClay, executive director of the Texas Association Against Sexual Assault, used the bureau's unfounded statistics to figure out that after procedures changed in cities-among them New York, Philadelphia and Oakland-the unfounded rate dropped from 15 per cent to two per cent. Across the country, however, she writes, "law enforcement departments are commonly unfounding sexual assault cases for reasons such as: delayed reporting, lack of cooperation from the victim, recall of additional facts by the victim, lack of physical injury, inconsistent or untrue statements by the victim, a failed or passed polygraph (by the alleged victim and perpetrator respectively), a close relationship between the victim and the accused, or the sheer difficulty of investigating a case that boils down to 'he said-she said.'"
Similarly, a 2006 study by inspectors overseeing police and prosecutors examined 752 cases reported in Britain the previous year. There, files are categorized as "no crimes" if there is "verifiable information that no crime was committed." "No crimes" made up 23.8 per cent of records; however, 57 of those were found to be in non-compliance with Home Office Counting Rules. Sometimes, police couldn't find enough evidence to prove that an assault had taken place ("There was no verifiable information that it had not taken place" notes the report), sometimes survivors' credibility was questioned because of their drinking or behaviour, and sometimes no reason was given.
After her second interview, Terese feels as if her life has been destroyed. She goes from being an independent young woman with a house, a car and a job as a daycare teacher that she loves to someone so depressed she can't keep up with the responsibilities of her work and almost ends up homeless. "The police could have said, 'We're sorry. We believe you, but our hands are tied; we can't do anything,'" she says. "But they didn't do that. They made it as bad as they could."
It's been five years since Terese was assaulted. Sitting at the kitchen table in her shared townhouse, she sips coffee, sifting through a stack of papers dotted with Post-it tabs. Most of the time her voice is steady, but there are things she can't talk about without crying.
She is fighting back. She has returned to work and is connecting with supporters and other survivors. She's also planning a lawsuit against the police. "It would be great to know that I've gone through all of that," she says, "and even though it was terrible and traumatic and nothing good came out of it in my own personal life, if it could make a difference in somebody else's. That would be great." She continues to struggle. She continues to heal.
