Law and the Human Factors

• Author: Judith Daylen, Wendy van Tongeren Harvey, and Dennis O'Toole
• Pages: 101-136

101

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Law and the Human Factors

Vignette Four

A young woman, Carol, attends a private par ty at a rented banquet hall.

When Carol leaves, a man from the party fo llows her into the parking lot,

forces her into the bushes, and has anal sex with her. Bystanders hear her

cries, run up to the scene and hold the assailant until the police arrive.

Carol is taken by ambulance to the hospital where she is examined by

a doctor. While at the hospital, she gives a full account of the assault to

police. The Crown lays charges against the assailant. Three months later,

when Crown counsel contacts Carol, the key witness in the tr ial, to go

over her testimony, Carol remembers being in the parking lot prior to the

assault and being in the ambulance after the assault, but she n o longer

has any memory for the assault itself. Crown counsel ask s Carol to see

a psychologist, an exper t in memory issues, for an assessment and tells

her the case will have to be adjourned until the assessment is comp leted.

The Crown feels Carol’s inability to give details of the assault in cour t will

seriously weaken the case. Because of the adjournment delay, the court

releases the accused on bail. Carol is very upset. She fears the assailant

may attempt to harm her again, she thinks the Crown lawyer b lames her

for the adjournment, and she worries that her memo ry problems indicate

that she has some serious mental disorder.

    a long, venerable history, but it can be an in-

timidating experience with its arcane language and complex rules. Despite

the focus on procedure and ritual, it is ultimately a system for people con-

ducted by people and consequently imbued with human elements. In this

chapter, we review some of the human factors that are important to con-

102 ,  ,   

sider when participating in this venue. We discuss memory issues, relation-

ship dynamics, lega l system stressors, and emotional buoyancy. e chapter

ends with some thoughts about the personal benets of participating in the

court proce ss.

Some crime victims can be dismayed and confused by their rst experi-

ence with our adversarial court system. is reaction applies equal ly to those

involved in civil litigation or criminal prosecution. In an adversarial system,

each side presents a case before a court (judge alone or with a jury), whose

function is to balance the rights of the defendant with those of the com-

plainant to ensure that each side follows the legal rules when presenting its

case. is adversarial, accusatorial method, which pits one side against the

other, dominates most of what happens in a courtroom. It has ancient ori-

gins and a long history, but only recently have there been any noteworthy

modications recognizing the human factors important to the process.

To the non-professional, a court case conducted in this s ystem can be

a complicated, complex process. Court ocials frequently use esoteric lan-

guage that you may not understand and they will engag e in rituals unfam-

iliar to you. In contrast, the justice personnel who make their living in t his

environment are comfortable with it. You may feel that the unfamiliar lan-

guage and arcane courtroom rules hinder, rather than help, you tell your

story. Some par ticipants may wonder why their concerns appear to take a

back seat to seemingly trivial deta ils and obscure legal wrangling.

Although you might feel like an outsider, your role in the legal process

is an important one. While you are not the one who steers or controls the

case, a s the complainant, you a re the central witness . You provide valua ble

information and testimony when required, but you do not act as an inves-

tigator or prosecutor; you should turn these functions over to those “in

the know,” those with the necessary skills and competence to do the job

well. To some, not being in complete control can be disconcerting, but the

experience can also be liberating if you learn to trust those around you to

prosecute the o ender fully or to conduct your civil su it fairly.

When it comes to legal proceedings, we have to consider not only the

adversarial context but also the inuence of historical myths related to

women and children, and the causes of sexual oences. In the past, au-

thorities expected that the victim of a sexual crime (most oen women and

children) would report the crime immediately and failure to do so raised

suspicions about the complaint. e law also considered children to be un-

reliable wit nesses, and a woma n’s sexual reputation was used to undermine

Chapter 4: Law and the Hu man Factors 103

her credibility. For example, if a woman consented to sex on previous oc-

casions, it was taken as evidence that she likely consented to sexual activ-

ity with the accused during the al leged oence. Further, to determine the

victim’s credibility at trial, the court, until recently, accepted her personal

records willy-nilly, without consideration of privacy issues. Accumulating

knowledge demonstrates that some of these myths and outmoded proce-

dures are detrimental to fair legal practices.

Aer lengthy legal strug gles, legislation now prohibits courts from us-

ing some of these spurious assumptions in the legal analysis of a case. Nev-

ertheless, in the adversarial context, and in spite of prohibitions, lawyers

do occasionally stray into arguments and positions based on this outdated

thinking. Enlightenment is coming slowly in some quarters, but there are

indications that Canadian law is evolving away from some of the narrow

biases that have marked it in the past. is evolution is particularly evi-

dent in cases involving harm di rectly inicted by one person on another,

as in sexual crimes. ere is a shi toward increased victim participation,

particularly in the prosecution of young oenders and at the sentencing

stage of adult oenders, where victim impact statements are now common

practice. Increasingly, human factors that aect the legal process are being

recognized and accommodations are being found that do not diminish the

legal system’s integrity.

In this chapter, we discuss some of the human elements that will be

important when you take part in the legal system. We begin with an exami-

nation of memory pro cesses; this i ncludes a review of our c urrent scientic

understand ing and its relation to cou rt expectations t hat a victim provide

an accurate and detailed account of past experiences. is section does not

oer any easy solutions to the legal stressors encountered by a victim, but

it does address the complexity of memory and reviews some long-standing

misconceptions about human recall.

MEMORY

     events accurately typically plays a central role in

legal proceedings related to sexual crimes. ere may be limited physical

evidence in a case, particularly with respect to crimes, such as childhood

sexua l abuse that occ urred years b efore the prosecution b egins. I n this typ e

of case, the primary evidence is generally the complainant’s description of