The hidden costs of sexual assault: Lessons from the Mandi Gray case

How does the court decide whether or not to compensate victims for costs related to pursuing a charge? An expert explains.

Mandi Gray stands with supporters as she talks with media outside court in Toronto on Tuesday, March 14, 2017, as Mustafa Ururyar appeals his conviction and sentence on the sexual assault of Ms. Gray. THE CANADIAN PRESS/Chris Young

Gray was awarded $8,000 for her legal costs, to be paid by Mustafa Ururyar, who last summer was convicted of raping Gray. On Tuesday, Ururyar appealed his conviction. Photo, Chris Young/CP.

On Tuesday, the day of her rapist’s appeal hearing, Mandi Gray stood outside a Toronto courthouse with an oversized novelty cheque from “The Bank of the Patriarchy.” It was made out to “All the J’Does” — in other words, all the women protected by a publication ban, whose abusers have been to court on sexual assault charges. And it offered these survivors a massive, imagined payout: $9 trillion.

A symbolic stunt, sure. But the fake cheque and accompanying conversation highlighted an under-discussed fact: It’s really expensive to be sexually assaulted and pursue a charge — and the costs are not always recognized by the courts. “Often we talk in terms of trauma, emotional harm, but we don’t [talk] about the actual logistics of, ‘Can I actually afford to be sexually assaulted right now,’ ” Gray told the CBC this week.

Mustafa Ururyar was found guilty last summer of sexually assaulting Gray while they were students at York University in 2015. After the decision, Gray sent an informal survey out to survivors in her network asking them to tally the cost of their assault. As of Sunday night, 156 respondents reported a total of $7 million in losses, citing costs including lost tuition, Plan B and anti-anxiety medication, therapy and travel costs to and from court. (In the past few days, the number of respondents rose to 200.) “Someone said they just couldn’t bear having the mattress they were assaulted on anymore,” Gray told Chatelaine. “So there’s the cost of throwing out their bed and buying a new one.” Gray and her fellow advocates are sending invoices to the Prime Minister Justin Trudeau and Ontario Premier Kathleen Wynne to claim these costs.

Gray herself was awarded a “restitution order” which said Ururyar must pay Gray $8,000 for her legal costs (the full cost of her lawyer was more like $10,000). Legal costs are something restitution orders don’t usually cover, so it was debated in court Tuesday during the appeal, with interventions heard from both sides of the issue (the appeal judge also scrutinized the trial judge‘s handling of the case). Besides lawyer fees, what are the hidden financial costs of sexual assault? And what’s involved in seeking restitution? Here’s a primer:

What is a restitution order?
Since the Criminal Code of Canada’s creation in 1892, the courts have been allowed to award victims of crime “compensation” for the harm caused — but only if the accused is found guilty. In 1996, the term “restitution” was introduced to clarify that this kind of payment had to come directly from the guilty party, not from the state. These costs also must be attributable to the crime, says Deepa Mattoo, legal director of the Barbra Schlifer Commemorative Clinic in Toronto, which intervened on the Ururyar appeal in defence of Justice Marvin Zuker’s order. The court also takes into account the financial means of the offender. Mattoo said restitution orders rarely come up, because sexual assaults have such a low conviction rate.

What kind of costs might it cover?
The order might cover the financial fallout from missed school, lost wages, medical and psychological help, moving costs and safety planning if the survivor still believes she’s at risk of assault. All of these things can be linked to the crime in the eyes of the law and be subject to some kind of compensation, should the offender be found guilty. In her work with women who seek services at the Barbra Schlifer Clinic, Mattoo helps them calculate these costs, which are then submitted to the court. If the victim has receipts, it will increase their chance of getting a good percentage back, Mattoo says.

How is restitution in criminal court different from damages awarded in a civil case?
A civil case is premised on seeking financial compensation for a crime committed against you. There is a much lower burden of proof on the complainant, and the accused has to provide far more evidence to support his or her position. It is also more expensive to pursue civil action, though in Ontario, sexual assault complainants can apply to the Criminal Injuries Compensation Board. Civil damages are different mainly because they take into account possible future costs the complainant will face, which could include loss of future economic opportunity (for example, delayed entry into the workforce because you had to take time off as a result of the assault) or future therapy bills.

Why doesn’t a restitution order usually cover legal costs?
Since the Crown represents the public, a complainant does not have legal representation of her own and is meant to use Victim Services — a service offered by the courts. The offender pays a mandatory fine which carries a “victim surcharge” that funds programs like Victim Services. Gray’s case is unusual because she hired her own lawyer to counsel her through the process of being a complainant — and Justice Zuker agreed that Ururyar should pay these costs.

What are the arguments for and against having the accused be on the hook for legal fees?
Daniel Brown of The Criminal Lawyers’ Association says Zuker’s restitution order might have the “chilling effect” of making accused people wary of going to trial because they might have to pay a complainant’s legal costs if found guilty (it could mean they opt to plead guilty instead). The organization intervened in this case and said Justice Zuker interpreted the section of the Criminal Code that deals with restitution orders too broadly. “What if [a complainant] goes out and hires Marie Henein and flies her across the country?” Brown said.

On the other hand…
Victims’ Services is overburdened and typically can’t really help a complainant understand what she’s in for when she testifies during a criminal trial, Mattoo says. (Brown says if Victims Services is not doing a good enough job of preparing complainants, the government should answer to that, not the accused.) Mattoo argues legal costs as restitution would introduce more accountability measures in the criminal justice system, deterring people from committing sexual assault and giving survivors more confidence to come forward. “Why does the victim have to bear the harm – why is everything on her shoulders? Why is she supposed to do everything? Why are we as a society at this point structurally afraid of bringing any accountability on the perpetrator?”

The appeal judge will return to court with a decision June 8.

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