How A Sex Assault Survivor Found Justice Outside The Courtroom

TORONTO — For three years, Marlee Liss burned to ask the man who raped her why he did it. 

She wanted the stranger to acknowledge the harm he caused when he sexually assaulted her for hours in his downtown Toronto condo and that the trauma had changed her entire life. 

She was no longer the innocent 21-year-old university student with an idealistic view of the world. For a long time after that 2016 summer night she said she was close to broken. She dropped out of school, moved back home and struggled not to succumb to constant self-blame.

“I experienced a lot of my grief in the form of confusion that was paralyzing. That was breaking my brain. That was making it hard for me to continue in the world,” Liss, 24, told HuffPost Canada. 

“I just didn’t understand how a human can experience emotions like I do and commit a crime like (sexual assault).” 

The accused was charged with sexual assault, which started a long and traumatizing court process. However, what Liss wanted most wasn’t for him to go to jail, but to answer the questions she couldn’t stop thinking about. Why did he rape her? How could someone do something like this? 

Eventually, Liss made that conversation happen through a relatively unknown option in the court system called restorative justice. It’s a mediation process that focuses on repairing damage and relationships, unlike criminal trials, which focuses on proving guilt and handing down punishments.  

“It gives the person who has been harmed a voice they might not have in court, and a chance to have their questions answered, which they definitely don’t get in court,” said Catherine Feldman Axford, the co-ordinator of community mediation at St. Stephen’s Community House who facilitated Liss’s case. 

Restorative justice is a set of principles that, when applied to conflicts and crime, enables participants to work through emotional and psychological damage and understand one another, which is not part of the rational, fact-finding criminal justice system, added manager Peter Bruer. 

“You get a better resolution because you’re working with more,” he said. 

The Toronto organization has only mediated a handful of sexual assault cases, including Liss’s.

The Ministry of the Attorney General was unable to provide further statistics about how often restorative justice is used in the court system but a spokesperson said, “it is not used in in sexual assault cases in Ontario unless in very exceptional circumstances.” 

In a healing circle earlier this fall, Liss and the accused, her mom and sister, his close friend, their lawyers and a Crown attorney talked together for eight hours with the help of mediators.

“He looked me in the eye and took accountability and said, ‘I’m sorry, I’m sorry I sexually assaulted you. It was wrong,’” Liss said. 

“And I didn’t even know that I needed that as much as I did. Hearing him say that, just instant tears. 

“The next time I spoke, I’m like I wish this moment for every survivor because it was so healing for me and offered so much closure. I felt like a huge weight had been lifted. I felt like my voice matters again, and I was actually being heard in the system for the first time.”

Liss signed a confidentiality agreement with the accused and his identity is protected. They reached a settlement in a civil suit and following the circle, and at Liss’s request, the sexual assault charge was withdrawn.

“I feel some level of forgiveness but forgiveness does not equal justification,” Liss said. “I also feel rage, devastation and sadness. Forgiveness can co-exist with any other emotion.” 

The night of the alleged sexual assault, Liss met the accused at a bar. She danced to one song with him and then, separated from her friends, she decided to leave, she said. The accused helped her hail a cab, and they realized he lived in the same condo building as her friend’s place, where she’d planned to spend the night.

So they shared the ride, and sat in the back seat, where he got uncomfortably touchy, and she shrugged off his advances, Liss said.

At the building, Liss said she couldn’t reach her friend to get into the unit, so the accused invited her up to his for a glass of water. Drunk and exhausted, Liss agreed. She laid down on the couch in his living room, close to unconsciousness, she said.

“He pulled my pants down. I said, ‘No, I don’t want this.’ I wasn’t being listened to at all. I froze completely,” Liss said. 

The assault lasted at least four hours, she said. He would stop and apologize, pacing back and forth, and then begin again — a contradiction Liss would later replay in her mind. He continued, Liss said. She realized the sun was coming up. 

Finally, he went to the bathroom for a long time, and Liss said she gradually become more alert. 

“I was in shock. I was like, holy shit, I don’t want to be here. I grabbed my clothes,” she said. The accused was coming out of the bathroom as she approached the front door. “We made eye contact for a second. I grabbed my wallet and then I ran out.” 

Liss said she got dressed in the elevator, and went straight to her friend’s house. Together they went to the hospital — and after waiting 24 hours for a nurse to be available — she got a rape kit to collect forensic evidence, including semen. The nurse told her she had two options: go home and do nothing, or report it to the police. She did the latter.

“I wanted something, but I didn’t know what,” Liss said. “I felt very much like I was going into it blind. I had no idea what to expect.”

The first year after the assault was the darkest of her life. She said she struggled with depression and for a time was suicidal. 

Eventually, Liss found therapy, and tapped into her passion for yoga and meditation. She reflected on the patriarchal system and how men are conditioned to suppress their emotions, and how that might play a role in systemic sexual violence. She went on women’s retreats and circles and eventually helped lead them, creating a space for participants of trauma to grieve and heal. She shared her experiences in a book called Re-Humanize. 

But when it came to navigating the criminal justice system, Liss continued to feel mostly on her own. 

A spokesperson for Ontario’s Ministry of the Attorney General told HuffPost Canada it recognizes “the devastating impact” sexual assault has on victims and their families. It has established a sexual violence advisory group, where senior crowns attorneys serve as mentors to those prosecuting sexual assaults, and provide education and training for defence lawyers, judges, police and victim support workers. 

In Liss’s case, the accused was charged and she was subpoenaed to testify as a Crown witness at a preliminary hearing — a step before trial, she said. For hours the defence tried to discredit her with invasive questions.

“Court was so traumatizing and I knew a criminal trial would be horrible to have to sit in a room and listen to my assailant lie, blatantly lie about that night. I couldn’t do that,” said Liss.

The criminal justice system was beginning not to make sense to her anymore. In the best case scenario, the accused would be found guilty and incarcerated for a couple of years. To Liss, that didn’t seem like a real solution. 

“I was learning about the prison system and how it often it leads to more violence, I don’t know why I’d put my own mental health at risk in order to fight for something I don’t want,” Liss said. 

Through a friend, Liss learned there was a name for the type of conversation she wanted to have with the accused. It was called restorative justice. She put out a call for more information on Instagram, and was ultimately connected to defence lawyer Jeff Carolin, a restorative justice advocate. 

Carolin says the all or nothingness of the punitive system, where a person accused of violent crimes either walks free or faces punishment, doesn’t necessarily make society safer.

“We have a very long standing system that’s rooted in eye for an eye. If you hurt someone, then we hurt you,” said Carolin. “We take away your freedom, we make it harder for you to get a job, we separate you from your family. We put you in a cage. 

“Very few people come out rehabilitated or better integrated when they return to the outside world.”

And that’s only if the victim reports the sexual assault, police determine there’s enough evidence to prosecute, and the case makes it to court. In Canada, only five per cent of victims report sexual assault to police, research suggests . Of reported cases, only 12 per cent result in a criminal conviction within six years, compared to 23 percent of physical assaults, according to Statistics Canada. 

If the accused pleads or is found guilty, the victim can make an impact statement, but the accused does not have to respond. In fact, they’re often encouraged by counsel not to show remorse or change their position as it could affect a future appeal, Carolin said. 

Restorative justice is a way to slow things down and possibly help those affected by the crime to heal and for the accused to change in a positive way, he said. 

Carolin took on Liss’s case and together they pitched the idea to Crown attorney Cara Sweeny. She backed the idea as long as the accused participated in good faith, and it was what Liss wanted. 

“I’ve been involved in dozens of sexual assault trials — and even more cases,” Sweeny said in an email statement. “The trial process is devastating. Many victims say that the trial is worse than the rape. 

“Marlee came along and suggested something different. And I was hooked. I was hooked at the possibility of something that was healing and open and safe for victims.” 

The judge signed off on it and, after the accused agreed and prepared by attending counselling, they gathered this fall for the healing circle. 

“The most meaningful aspect of it was the opportunity just to be raw, and show my grief and talk about how I never wanted to go through this punitive, three year legal case,” Liss said. 

“And it felt really miraculous to look him in the eyes and say from the beginning I just wanted this exact moment where we’re both acknowledged as humans. It was really powerful.”

By the end, it was clear to Liss and Sweeny the accused would not commit this crime again, and that he’s changed.

“I said to him, you’re not in prison. Do something with your life and make meaning out of this the way I have,” said Liss.

Sweeny described the process as “incredible.”

“When I left the circle, I was convinced this was a better way. It felt like everything you want from a sexual assault trial.  It was actually about the truth.  About moving beyond the offence to something healing.”

Liss wishes that somewhere along the way — at the hospital, or police station, at therapy, her university, or court — she’d been given more guidance about her options following the sexual assault, and informed sooner that restorative justice existed. 

“Justice looks different to everyone and healing is going to look different to everyone,” Liss said. “But what really bothered me is there is no consideration of the survivor’s voice and someone asking, ‘What do you want?’”

She’s launching a foundation with the same name as her book, Re-Humanize , with the goal of educating sexual violence survivors about restorative justice and how it can make “healing and justice synonymous,” Liss said. 

It’s unfair to victims to keep restorative justice “under the radar,” said University of Montreal Prof. Jo-Anne Wemmers, who focuses on victims, the criminal justice system, and healing through restorative programs. 

Research suggests that while restorative justice is not for everyone, as many as one in four victims of sexual assault is interested. 

“There’s a lot of prejudice about it, in particular when there’s violence against women,” she said. Society views it as “we have to protect victims and criminalize these behaviours. It’s not a private issue. It’s a public issue.”

But restorative justice can fill a void left by the court process. 

“It’s about understanding that justice has a wider meaning and there’s other ways we can acknowledge and recognize victims’ experiences and suffering,” Wemmers said. “Often in the criminal justice system, until there’s a conviction, that doesn’t end up happening. The system is set up to deny, deny, deny.” 

Restorative justice can take other forms than a healing circle with the victim and accused. There’s a Quebec program organized by the Centre for Restorative Justice Services where victims of sexual violence, who’ve never been able to identify the perpetrator, meet with men convicted in similar crimes. 

One of Carolin’s clients, convicted in a robbery, was overcome with remorse and participated in a restorative justice-type meeting with a victim advocate and his sentence was reduced. 

“We’re making this path as we walk it,” Liss said. “I think that that moment is really important and that survivors should have a right to know their options.”

Update: This story has been updated with Crown attorney Cara Sweeny’s comments.