Convicted on Sexism: How does sexist reasoning in favour of the complainant work in today’s #metoo culture? - LawNow Magazine

Convicted on Sexism: How does sexist reasoning in favour of the complainant work in today’s #metoo culture?

criminal law

In R. v. J.L. 2018 ONCA 756, The Ontario Court of Appeal allowed the appeal of an accused who was convicted of sexual assault. The trial judge convicted the accused because he felt that the complainant would not engage in the acts as described by the accused because she was a young woman. The alleged incident happened during a school dance, where the accused testified that the complainant engaged in consensual sexual activity.

Simply believing someone for the sake of believing someone, or because you have sexist notions of what a young woman will consent to, has no place in the courtroom. As the Ontario Court of Appeal noted, the trial judge said aloud:  “I cannot accept that a young woman would go outside wearing a dress in mid-December, lie down in dirt, gravel and wet grass and engage in consensual sexual activity.”

In response and in review of this decision, the Court of Appeal found the following:

“In other words, the trial judge could not accept, or even have a doubt arising from, the appellant’s evidence because the trial judge was of the view that  young women would not do what the complainant was said to have consensually done. There is a real danger that this reasoning contributed to the trial judge’s assessment of whether, on the whole of the evidence, the Crown had proven the appellant’s guilt beyond a reasonable doubt. I do not share the trial judge’s view that it can be taken as a fact that no young woman would consensually engage in the alleged behaviour.”

The trial judge clearly had an impression and bias about how young women would act and what types of sexual activity a young woman would consent to. This type of reasoning is the antithesis to the very core of feminism: that women cannot be painted by a standardized oppressive paintbrush. All women do not do or refrain from certain things because of how ladylike something is. So too does the Me Too movement serve as a cautionary disclaimer that all women experiencing sexual assault do not behave in a cookie cutter fashion. The very point of this reality is that women, in all forms and ways, are challenging the social construction of what women ought to do: what all women must do, according to society.

For these reasons and in the climate of social awareness around these issues, the reform of the recent sexual assault laws has fallen into place. They allow complainants to know what records the defence plans to use to impeach their credibility (i.e. the Ghomeshi complainants would have had a chance to review their emails prior to their testimony, instead of being surprised at trial).

The trial judge clearly had an impression and bias about how young women would act and what types of sexual activity a young woman would consent to.What’s unfortunate and perplexing is the fact that the very point of the Me Too movement, to believe women at all costs when they allege sexual assault in any form, is advanced in a courtroom by a jurist who reasons that, because the complainant is a young woman, she would not have engaged in the sexual activity as described. This type of reasoning (in addition to being offensive, sexist and riddled with patriarchal ideas of gender binary norms), is counter intuitive to the enormous shift  happening now in our social awareness, but yet gives this movement what its supporters want: a conviction.

The correction and analysis of this reasoning by the Court of Appeal is significant. This decision serves as an important reminder of the logical fallacies that exist in even the most learned justice actors in the court room. Simply believing someone for the sake of believing someone, or because you have sexist notions of what a young woman will consent to, has no place in the courtroom. Our Constitution is one that requires all of us to presume the innocence of those who are accused, and to give them a fair trial by holding the Crown to its onus of proving a charge beyond a reasonable doubt. Without this, our justice system will fall from its pillar and land on shaky ground where we are all at risk of facing the swift hammer of “justice” coming down upon us.

Authors:

Melody Izadi
Melody is a criminal defence lawyer with the firm Caramanna Friedberg LLP, located in Toronto, Ontario.
 


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