The ethical identity of sexual assault lawyers.

Author:Craig, Elaine
Position:Canada
 
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DESPITE PROGRESSIVE LAW REFORMS, sexual assault complainants continue to experience the criminal justice response to the violations that they have suffered as unsatisfactory, if not traumatic. One emerging response to this dilemma involves greater consideration of the ethical boundaries imposed on lawyers that practice sexual assault law. What is the relationship between a criminal lawyer's ethical duties and the reforms to the law of sexual assault in Canada? How do lawyers themselves understand the ethical limits imposed on their conduct of a sexual assault case? How do lawyers that practice in this area of law comprehend their role in the criminal law's response to sexual harm? What is their sense of professionalism when acting in this capacity? If reforms to the law of sexual assault will not alone result in significant improvements to the experience of sexual assault complainants, perhaps greater focus on the ethics of sexual assault lawyering could improve the legal response to sexual harm. While the body of legal scholarship examining the issue of sexual violence has grown substantially in the past several decades, there has been very little research on the perspectives of criminal lawyers themselves. This is the first research aimed specifically at ascertaining how sexual assault lawyers understand their ethical obligations. Through analysis of semi-structured, in-depth interviews with experienced criminal defence lawyers and crown attorneys across Canada, this article presents a portrait of the ethical identity of sexual assault lawyers.

MALGRE L'AVENEMENT DE REFORMES du droit progressistes, les victimes d'agressions sexuelles continuent de recevoir de la part du systeme de justice penale une reponse aux violations subies qui se revele insatisfaisante, sinon traumatisante. Afin de repondre de maniere plus adaptee a ce dilemme, il faudrait tenir davantage compte des limites imposees par la deontologie aux avocats qui exercent le droit en matiere d'agressions sexuelles. Quel est le rapport entre les devoirs ethiques du criminaliste et les reformes au droit en matiere d'agressions sexuelles au Canada? De quelle maniere les avocats comprennent-ils les limites ethiques imposees a leur conduite dans une cause d'agression sexuelle? Comment les avocats qui exercent dans ce domaine du droit envisagent-ils leur role dans le cadre de la reponse du systeme de justice penale a un prejudice d'ordre sexuel? Quelle vision ont-ils de leur propre professionnalisme lorsqu'ils agissent en cette qualite? Si des reformes du droit en matiere d'agressions sexuelles ne parviennent pas a elles seules a ameliorer de maniere significative l'experience vecue par les plaignantes dans les affaires d'agression sexuelle, en accordant davantage d'attention a l'aspect deontologique de la defense de causes d'agression sexuelle, on parviendra peut-etre a ameliorer la reponse judiciaire aux prejudices sexuels subis. Bien qu'au cours des dernieres decennies, la doctrine juridique sur ces questions de violence sexuelle se soit sensiblement etoffee, les recherches demeurent toutefois encore rares en ce qui a trait aux perspectives des criminalistes eux-memes. Il s'agit la de la premiere recherche visant specifiquement a determiner de quelle maniere les avocats exercant dans ce domaine comprennent la portee de leurs obligations ethiques. Au moyen d'analyses d'entrevues en profondeur semi-dirigees avec des procureurs de la defense et de la Couronne aguerris dans l'ensemble du Canada, cet article dresse un portrait de l'identite ethique des avocats specialises en matiere d'agressions sexuelles.

CONTENTS The Ethical Identity of Sexual Assault Lawyers Elaine Craig I. Introducing the Portrait II. Methodology III. Role-Differentiated Morality A. The Primary Objectives Identified by the Lawyers Differed B. Primarily Lawyer-Controlled Decision-Making C. Statements Consistent with the Hired Gun Model IV. Role-Differentiated Thinking A. Refusal to Know B. Insistence on Innocence C. Possible Functions of Role-Differentiated Thinking V. Individual Incongruity and Intra-Professional Diversity A. Individual Incongruity B. Intra-Professional Diversity VI. Reluctance to Label Conduct Unethical VII. Conclusions and Recommendations I. INTRODUCING THE PORTRAIT

Studying sexual assault lawyers is much easier than practicing sexual assault law. Not only is the important work of sexual assault lawyers personally taxing and frequently thankless, these members of the legal profession are sometimes unfairly vilified for the legal services that they provide. (1) At the same time, members of the criminal defence bar have been rightly criticized for perpetuating a "whack the complainant strategy" that discourages victims of sexual violence from coming forward, and traumatizes those that do report sexual offences. (2)

Beginning in the late 1970s, sexual assault law in Canada underwent nearly three decades of significant renovation. (3) Today, the substantive law of sexual assault in Canada is among the most progressive in the world. (4) Unfortunately, law reform efforts have failed to repair what remains a dysfunctional legal response to a prolific social problem. Conviction rates for sexual assault in Canada decreased during this thirty-year period of reform. (5) Although reporting rates increased in the years immediately following the initial changes, they too have begun to decrease. (6) Indeed, reporting rates for sexual assault remain dramatically lower than for other violent offences (7) and attrition rates are dramatically higher. (8) While notoriously difficult to measure, rates of sexual victimization do not appear to have diminished as a consequence of these reforms. (9) Perhaps most importantly, sexual assault complainants continue to experience the criminal justice response to the violations that they have suffered as unsatisfactory, if not traumatic. (10)

Legal commentators continue to identify defence counsel conduct that may contribute to these negative experiences. (11) The reasons why these reforms have failed to increase reporting rates, decrease rates of victimization, and better serve the needs of complainants are complicated, multifaceted, and in some respects extend well beyond what can be achieved through law. (12)

Nevertheless, it remains important to ask what can be done to improve the legal response to the problem of sexual harm, without unduly compromising the constitutional interests of those accused of sexual offences. One emerging response to this dilemma involves greater consideration of the ethical boundaries imposed on lawyers that practice sexual assault law. (13) What is the relationship between a criminal lawyer's ethical duties and these significant reforms to the law of sexual assault in Canada? How should professionalism and the ethical obligations owed by a lawyer limit their conduct of a sexual assault case?

In previous work, I advanced the claim that, at a minimum, lawyers are ethically obligated to restrict their carriage of a sexual assault case to conduct that supports findings of fact within the bounds of law. (14) In other words, defence counsel should be ethically precluded from using strategies and advancing arguments that rely, for their probative value, on stereotypes or social assumptions about sexual violence that have been legally rejected through law reform. (15)

This article examines how lawyers themselves understand the ethical limits imposed on their conduct of a sexual assault case. How do lawyers that practice in this area of law comprehend their role in the criminal law's response to sexual harm? What is their sense of professionalism when acting in this capacity? If reforms to the law of sexual assault will not alone result in significant improvements to the experience of sexual assault complainants, perhaps greater focus on the ethics of sexual assault lawyering could improve the legal response to sexual harm. In part, such focus will require an increased understanding of how lawyers themselves understand their ethical obligations in the context of sexual assault cases. The purpose of this study is to contribute to that understanding.

Literature examining the ethical identity of professionals characterizes identity as "a relatively stable and enduring constellation of attributes, beliefs, values and motives and experiences in terms of which people define themselves in a professional role." (16) Professionals are thought to manifest this ethical identity through the decisions they make when confronted with ethical quandaries. (17) According to some identity theorists, the relative salience of professional identities-that is the likelihood that an identity will be invoked across either a range of situations or a variety of individuals in a particular situation-is a consequence of "how embedded the role or set of roles is in the group that provides context for the meanings and expectations associated with the role." (18) The more entrenched the role is in the group, the greater the individual commitment to that identity. (19) This notion of identity salience maybe of particular significance to a professional group such as the criminal defence bar. Criminal lawyers are thought to have an established, readily identifiable, and extremely embedded set of roles. (20)

While the body of legal scholarship examining the issue of sexual violence has grown substantially in the past several decades, there has been very little research on the perspectives of criminal lawyers themselves. (21) This is the first research aimed specifically at ascertaining how sexual assault lawyers understand their ethical obligations. Through an analysis of semi-structured, in-depth interviews with experienced criminal defence lawyers and Crown Attorneys across Canada this article presents a portrait of the ethical identity of sexual assault lawyers. Some of the themes identified are consistent with the conclusions already drawn...

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