Secondary Victimization in the Legal System

From Catharine MacKinnon’s “Rape: On Consent and Coercion,” to Rebecca Campbell’s chapter “From Thinking to Feeling,” the idea of “secondary victimization” (Campbell 53) is a regularly discussed concept to describe sexual assault survivors’ experience within the criminal justice system. Secondary victimization may occur to women who press charges on their rapists, stating “they were raped twice, the second time in court.” (MacKinnon 179) This secondary victimization can also occur “if victims do not receive the services they want and are treated in an insensitive matter…[which] can magnify feelings of powerlessness, shame, and guilt.” (Campbell 53) In my CSL partnership with the Elizabeth Fry Society, where I have been assisting with its Court Program at the Provincial Criminal Docket Court in Edmonton, I have witnessed this secondary victimization firsthand.

Wednesday morning was my first CSL hour in court with the Elizabeth Fry Society, and I was immediately confronted with how inaccessible the criminal justice system is for most people, and even more shocked by how people coming before the court were treated by the legal system. The Provincial Docket Court is incredibly difficult to navigate—physically and its legal procedures—for those who have never encountered the system before. To begin, a person must wait in a relatively long line at the Case Management Office to discover where her case is to take place, and eventually traverse the maze that is the Edmonton Law Courts to find it. Then, she must wait at the given courtroom until her case is called, so even though a person’s court time is scheduled for 9:00 a.m. it is possible to be waiting for hours for a case to come up. As well, most people are unaware that they need a lawyer to discuss their matters in court; luckily, the Elizabeth Fry Society is there to help them, and direct them to duty counsel, a lawyer who will provide preliminary basic services until another lawyer is found or one is provided by legal aid.

The above process would already be cause to feel powerless, confused, and humiliated if you talk to the wrong people, as it is difficult for many lawyers to keep the disdain out of their voices if you ask the wrong questions. And unfortunately, these feelings don’t go away, they are multiplied tenfold once you enter into court, where an atmosphere of intimidation immediately surrounds you, and there is no promise that the judge or even your legal counsel will treat you with respect. I was told that even something as small as whether or not the judge got his or her morning coffee would entirely shape defendants and survivors experiences when coming before the court. One lawyer directly referred to a female client, who hadn’t even left the room yet, as “completely psychotic,” hystericizing this woman’s claim and reinforcing the “humiliation, and indignity of being a public sexual spectacle” (MacKinnon 180).

This entire process is incredibly intimidating for people, especially when legal terms and procedures are not clearly defined for them, and this secondary victimization reinforces a humiliating and powerless feeling similar to what was experienced when a survivor had been sexually assaulted. The Elizabeth Fry Society does a good job in helping people navigate the Court when necessary, but the criminal justice system is overwhelmed with people accessing it, making it next to impossible to talk to every person. Unfortunately, as noted in “The Perils of Institutionalization in Neoliberal Times”, it was found that budgetary pressures often result in fewer staff being completely overworked, making it difficult to provide the same quality of services, which perpetuates the negative revictimization survivors may feel in court. Less project-specific funding for Sexual Assault Centres may help in providing survivors in court with support services (Beres et al. 153), however, it is not solely the lack of services for survivors that is the main cause of secondary victimization, it is the inherent subjectivity and condescension within the legal system that contributes to the secondary victimization of survivors.

We are led to believe that the legal system is an objective method of justice, that it has no bias, it is rational, and it is not affected by the outside world. However, my experience in court has shown me that the legal system is quite subjective, opinionated, and is greatly affected by the dominant neoliberal paradigms of the day. Due to the rise of neoliberalism, “social and political problems [are]…redefined as individual problems, best managed through responsibility and self-regulation” which greatly contributes to the condescension within the legal system, where victims are blamed for not being “responsible risk managers.” (Gotell 217) This neoliberalist paradigm of “risk management” is a subjective opinion that is pervasive throughout the legal system, contributing to the rape myth that somehow being sexually assaulted is the survivor’s fault for not being a “responsible risk manager.” Therefore, secondary victimization cannot be eradicated solely by putting more money into centres that help sexual assault survivors access and navigate the court system, this neoliberalist “risk management” paradigm within the court system that calls people “completely psychotic”, must also change in order to reduce secondary victimization.

Works Cited

Beres, Melanie, Crow, Barbara, and Lise Gotell. "The Perils of Institutionalization in Neoliberal Times: Results of a National Survey of Canadian Sexual Assault and Rape Crisis Centres," Canadian Journal of Sociology 34.1 (2009), 135-163.

Campbell, Rebecca. “From Thinking to Feeling.” Emotionally Involved: The Impact of Researching Rape (2001): ch.2, 37-64.

Lise Gotell, "Canadian Sexual Assault Law: Neoliberalism and the Erosion of Feminist inspired Law Reform." Rethinking Rape Law (2010): 209-223.

MacKinnon, Catharine. “On Coercion and Consent.” Toward a Feminist Theory of the State. (1991).