Retraumatizing victims of abuse in court occurs less frequently because of trauma-informed litigation, but it must be eliminated if we want to realize the justice we claim to pursue in the Canadian legal system.
If I must be honest, I was preparing to write about Osgoode’s neglect of social justice-related legal work. Even though that conversation is important, I believe this topic is also in need of being addressed. Before I continue, if gender-based violence isn’t a topic you are prepared to read about, I implore you to stop reading this and take care of your wellbeing.
I love Keke Palmer—as in, we basically grew up together (at least in my head). The Akeelah and the Bee movie got me, a notoriously bad speller, to be serious about learning how to spell. The Nickelodeon show True Jackson, VP made me laugh and believe in myself a little more. Megan Thee Stallion ran my Spotify playlist from 2019 to 2020. There was no way I ever dreamed that I, a mere mortal, could be like these successful black women.
I believed these role models were untouchable—until, later on, when the abuse that Keke Palmer and Megan Thee Stallion respectively endured became news. What haunted me the most about these stories were the responses all over social media. This included denial, gaslighting, victim-blaming, and even public threats directed at these women while they were trying to protect themselves from their abusers. Before Megan and Palmer bravely shared their experiences, they were publicly beloved—only to face questions like “why didn’t you say something before?” or “what did you do to make them mad enough to do that?”
Of course, these celebrities received support. Still, the negative comments were especially biting, particularly when read by someone who has experienced abuse of their own. I’m careful not to speak for others’ experiences—but let me share my own.
I’m sure that the law students reading this have either followed a court case or, at the very least, heard about a court case dealing with abuse. Some are fictional, like those on Law and Order and some are real, like the Heard v. Depp case or even the more recent The People of the State of California v. Daystar Peterson (otherwise known as “Tory Lanez versus Meg Thee Stallion”). Those who paid attention in criminal law may recall R v Lavallee or R v Malott, cases that deal with similar subject-matter albeit in the Canadian legal context.
I have seen lawyers rip apart testimonies and victim experiences in the same manner that social media did to Megan and Palmer. I feel that the law retraumatizes victims of abuse to get a win, or treats their stories as “factors” to consider for judges and adjudicators. We don’t look at the survivor’s experiences outside the courtroom, as case analysis tends to focus on the decision and the judge’s reasoning. To the legal scholar, they are the characters in our textbooks and not real people who dealt with these experiences.
This does more harm than good. It causes law students to discount traumatic instances of abuse, which translates into lawyers and even judges who are unable to empathize with survivors. It also brings our legal system into disrepute and discourages survivors of gender-based violence from coming forward.
Retraumatizing is a losing strategy, and our legal system would be better served abandoning it.