Alarming Attrition Rates for Women in Criminal Law
I once commented to one of my Criminal Procedure professors that the Crown’s office seems like a better place for women who want to practice criminal law. My professor, who is a female Ontario Court of Justice judge and former defence attorney, responded that if all the women who want to practice criminal law end up working for the Crown, the criminal defence bar will regress into what it looked like thirty years ago, and many of the gains fought for by female criminal defence attorneys would quickly evaporate.
A report released earlier this month by the Criminal Lawyers’ Association entitled “The Retention of Women in the Private Practice of Criminal Law” seems to suggest that that has already happened.
The report, which analyzed data from the Law Society of Upper Canada and Legal Aid Ontario, as well as information gathered from focus groups, suggests that female criminal defence lawyers are leaving the practice in droves. The numbers are stark: of the forty-seven women who started practicing criminal law in 1996, only thirteen are still practicing. The rate of attrition for women, the report states, is far higher than that of men.
Many women leave after five years of being in practice; most are gone after ten. They cite unpredictable work hours, and the challenges of taking maternity leave, including the fact that few women qualify for the LSUC’s maternity leave program, and the financial burdens of Legal Aid work. Indeed, the reality that so much of Legal Aid work is done by women (see Abel and Lewis’s Lawyers in Society) should raise some concerns about how work is divided among the criminal defence bar. As the report highlights, senior male lawyers are more likely to refer clients to other male lawyers. It appears that in terms of referrals, the criminal defence bar is still an old boys’ club.
Most troubling of all, however, is that many cited lack of respect from colleagues, opposing counsel, judges, and court workers as a reason for leaving their chosen practice area.
I have seen several female lawyers perform and adopt affectations in order to be accepted by male colleagues; being one of the boys can be a survival mechanism. Indeed, the way women dress, act, and even speak is so closely scrutinized that it is no small wonder that women find the time to hone their craft while having to ponder how will this dress affect the way I am treated today?
The disrespect starts early on in women’s legal careers. It is usually subtle and hard to identify, but can also be more overt. A friend who was summering at a criminal defence firm intimated that she was always the one who was sent to get coffee, while none of her male colleagues were asked to do the same. At an articling interview with a male criminal defence attorney, I was asked if I thought there was any truth to the old adage about scorned women in the context of sexual assault complaints, suggesting that women routinely lie about being sexually assault because they are vindictive.
Once we get to court, little changes. Some female defence attorneys have complained about being berated by condescending or aggressive judges and opposing counsel. Being sidelined by colleagues when deciding who will speak with clients and being relegated to performing administrative tasks seems to be commonplace.
The bench, too, is not immune to outmoded and frankly outrageous ideas about women. Justice Robin Camp is facing an inquiry by the Canadian Judicial Council for his suggestion that a sexual assault complainant simply close her legs in order to avoid being raped. His were merely the latest in a long line of outrageous comments about women from the bench (Justice Bourassa’s suggestion that Aboriginal women are promiscuous drunks—“a pair of hips” to which a man can “help himself”—and therefore not rapeable, is another example).
Female judges can similarly be targets for opprobrium in ways that would not apply to their male colleagues. Last year, Associate Chief Justice Lori Douglas’s career came to a screeching halt when the Canadian Judicial Council mulled over whether a female judge could continue to sit on the bench if she had taken nude photographs of herself.
The LSUC Rules of Professional Conduct clearly state that civility and commitment to equality are part of lawyers’ ethical and professional obligations. Rules 5.1-5 (courtesy, civility, and good faith), 6.3 (sexual harassment), 6.3.1 (discrimination), and 7.2 (courtesy and good faith) are particularly instructive. These rules are not guidelines or suggestions; they are binding on all lawyers. The CJC’s Ethical Principles for Judges is the equivalent of the LSUC Rules for members of the bench.
The LSUC Rules are clear and the Law Society should start enforcing these rules more seriously and encourage the reporting of violations. The Law Society cannot, however, shoulder the burden alone. Likewise, the bar and bench have an important role to play.
Male criminal defence attorneys, Crowns, and judges must show leadership if the mass exodus of women from the criminal defence bar is to be stemmed. Reflecting on and challenging one’s own attitudes and thinking before speaking will go a long way. Calling out colleagues who engage in disrespectful and discriminatory behaviour is also crucial. There is simply no room for name-calling, sexual harassment, intimidation, condescension, or mansplaining. Part of being a professional is treating other professionals, and indeed everyone one encounters, with respect. And just so we’re all on the same page, it’s pronounced, “counsel,” not “sweetheart.”
The CLA report highlights the effects of discourteous and disrespectful behaviour, but the exodus of women will itself have truly unfortunate consequences. There will likely be more “complainant whacking” (the discriminatory practice of aggressive cross-examination of sexual assault complainants, the improper introduction of otherwise inadmissible evidence in these cases, and other tactics aimed at intimidating and silencing complainants based on outmoded attitudes about women, flouting legislative reforms and well established case law) and perhaps a smaller pool of qualified and passionate advocates.
Additionally, it may limit female defendants’ options; women survivors of intimate partner violence are increasingly being counter-charged when their abusers file complaints against them, and considering the attitudes of many male members of the criminal bar, these women may benefit from having a female defence attorney. What is almost certain is that the attrition of women will result in fewer female criminal court judges, and an overall less diverse bar and bench. Given the recent focus on access to justice, and its corollaries of diversity and inclusion, this alarming trend will have far-reaching repercussions.
Criminal law is certainly not for the faint of heart: gruesome crime scene photos, coming face-to-face with hardened criminals, and dealing with the police. Criminal defence attorneys are the shields protecting our democracy from arbitrary justice, and women are perfectly capable of rising to the challenge of this critical work. They should not, however, be made to endure harassment and disrespect in order to do so.
Many of my female friends and I are interested in criminal law and are excited to begin our careers in this dynamic and important practice area. While we are encouraged and supported by our professors and mentors, I cannot help but wonder how many of us will still be practicing criminal law in ten—or even five years from now.