In March 2017, Justice Lenehan acquitted a taxi driver of sexually assaulting a female passenger who was so intoxicated that she urinated on herself and passed out in the back of the cab, declaring that “clearly, a drunk can consent.”
In October 2017, Justice Robert Smith found a man not guilty of raping his wife because the man thought he was entitled to sex from her. That same month, another judge told a 17-year-old girl who had been sexually assaulted that she “was a bit overweight” and suggested she enjoyed getting the attention. In December 2017, yet another judge gave no sentence to a man who admitted to assaulting his girlfriend because it would “hamper his plans” for the future.
These are some of the most distressing SGBV (sexual and gender based violence) cases in Canada last year. But there are many more. These judgments are not unique; they are expected. Sexual assault survivors often recognize that they are better off not to access our criminal justice system, as their experience is inevitably worse than that of the accused.
That is what was so refreshing about following Justice Aquilina’s trial of the former U.S. gymnastics team doctor Larry Nassar, who pled guilty to seven counts of criminal sexual misconduct. For once, the survivors had the floor, the power and the respect. Finally, it was the accused who was on trial, not the accusers. It was a complete 180 degree turn from what we have come to expect in sexual assault trials. It was a glimpse into what justice could look like for survivors of sexual assault. But, unfortunately, it was also an example of what happens when a judge goes too far.
What Aquilina did differently.
There were multiple aspects of the Nassar sentencing proceeding that were novel and positive. First and perhaps foremost, Aquilina gave the opportunity for any survivor to speak at the sentencing hearing. Counsel opposed this, but Aquilina did it anyway. Nassar himself was vehemently against letting the survivors speak, saying it would be difficult for him to hear their testimonies. This didn’t deter Aquilina in the slightest, who said: “Spending four or five days listening to them is significantly minor considering the hours of pleasure you’ve had at their expense and ruining their lives.”
This was a rare and wonderful thing to do. Any time a survivor wants the chance to speak, to share their story, to tell their truth, we provide a healing opportunity when we give them that chance. Aquilina allowed the courtroom, which so often silences victims, to be a place where victims could speak without retaliation.
Beyond letting every survivor who wanted the opportunity to speak, Aquilina went a step further. After each survivor spoke, the judge shared words of encouragement and affirmed the women in their experiences and their decision to speak. She thanked them and said their voices were heard. She called them "sister survivors.” She told them to push away nightmares. She reassured them that they were not alone.
As Erin Roberts, the executive director of Lansing-based End Violent Encounters, reported, there were also numerous advocates in the courthouse to provide support to the survivors who spoke. This is particularly important, as the women who spoke performed extensive emotional labour, reliving such traumatic experiences as their shared their stories.
Justice Aquilina also recognized her place in the case when she addressed the countless media requests. She said that she would not make any public statements with news outlets until the appellate period was over, and if she did speak, it would only speak with a survivor by her side.
What this case meant.
The legal system did its job in this case. Finally. The man who preyed on hundreds of young girls will spend the rest of his days in prison. But Justice Aquilina managed to do something that the criminal justice system rarely, if ever, does. She provided faith and hope to the countless number of people who have been sexually assaulted. Not just that they might one day bring their attackers to justice in court (this has happened before), but that in their traumatic process they may also be able to transform their pain into power. “Leave your pain here,” Aquilina said to one survivor, “Go out and do your magnificent things.”
This proceeding was not just a liberating release from the status quo, but an example of what happens when women speak up and people choose to believe them. This was one illustration of the #MeToo movement making its way from powerful women in Hollywood to not-so-powerful young women and girls in competitive sports. Many of the survivors spoke of their doubts about what had happened to them, wondering whether they could trust their instincts and whether they could speak out. One by one, they did just that. And as more women came forward, other survivors were bolstered by their strength and came forward themselves. A bittersweet picture was created of women banding together against a bad man and a deeply flawed institution.
As I watched the sentencing on a television screen at the gym, I cheered. I actually let out a “Woo!” and a “Yes!” in front of my fellow treadmill mates when Aquilina spoke. And as survivor after survivor shared their truths, I cried. I cried tears of sadness, trying to comprehend all that they have been through. But I also cried tears of joy, so overcome seeing a justice system properly serve survivors; so overcome by gratitude for a judge like Rosemarie Aquilina.
Feminism is more than one feminist.
Once the proceeding ended, I couldn’t stop thinking about the sentencing. I constant loop of “Yaaaaaas, girl” played in my head as I celebrated Aquilina’s sassy one-liners. But the more I thought about it, the more my discomfort grew. Being sassy is one thing, but vindictive is another. Attitude on an activist might be fine, but perhaps not for a judge.
In so many ways, what Justice Aquilina did was amazing. But, unfortunately, she was not amazing in every way. Aquilina showed us what survivor-centric justice looks like, but she also showed us what going too far looks like.
“I’ve just signed your death warrant,” Aquilina said as she sentenced Nassar. That was before she read his letter and tossed it to the ground. That was also before she said that, but for the eighth amendment (cruel and unusual punishment), she would “allow someone or many people to do to him what he did to others."
None of that should have happened. None of those words should have been uttered. No matter how much hatred a judge has for a perpetrator, a judge must maintain decency and fairness. To throw a letter on the ground is to disrespect his words (no matter how repulsive they are). To suggest his sentence is a death warrant is to change the purpose of our criminal justice system. And to insinuate you wish rape upon someone…that is unacceptable. If you are an anti-rape advocate, you cannot wish that upon anyone. To say this kind of thing in a court of law is to offend the honour and sanctity of the court. To say this kind of thing at all, is to reduce rape to a punch line.
Aquilina’s disposition during the sentencing fell short. She went too far. This is to the dismay of many, but especially to the feminist community - those who fight so fervently for feminist principles to be integrated into the law. This is the story of a woman - with a heart of gold working to support some of society’s most vulnerable people - who was imperfect.
I am afraid that this case will cause some people to push feminism farther from the courtroom, rather than into it. Their takeaway, I fear, may be: “this is what happens when we let crazy women be our judges and they give emotional and vindictive sentences.” In such a wildly successful case for survivors, Aquilina may have in fact produced a damning outcome for future survivors.
As a feminist legal reform advocate, this is perhaps, my worst nightmare. The bad cases - where judges dismiss victims, demean victims, support perpetrators – keep me up at night. But the bad cases also prove my point; they provide me with tangible examples of our flawed system. But a case like this, well it does the exact opposite. If our average sexual assault case is a damning example of the patriarchy, I don’t doubt that many will view Nassar’s case as a damning example of a hypothetical matriarchy.
Justice Aquilina is a shining example of a sexual assault advocate. She is a judge who is, so refreshingly, pursuing justice. But she is imperfect. And I am scared those imperfections will cost the feminist movement.