Despite a social-conscious awakening, one trial proves archaic rape myths still exist.
A much-needed push against old-think myths and stereotypes of sexual assault victims led to a revamp of the Criminal Code. The changes updated when and how prior sexual activity of a complainant can be used in court. It took many generations and a consorted effort amongst feminists, lobbyists and victims of sexual abuse to convince many that, for example, a sex trade worker can be sexually assaulted. It was an almost novel and frustrating concept that some thought just because a complainant is sexually active – or was sexually active yesterday or even had sex with the accused on a prior occasion – that her character was flawed. And further that she was not only lying but could never be a victim. It is almost inconceivable that this was something we had to argue about.
In tandem with this push for social change is the need to dispel with rape myths and stereotypes around how a sexual assault victim should, must, and will act. It can hardly be disputed that some may cry, some may act perfectly “normal”, some may run into a police station, some may seek therapy, and some may not. In short, there is no “right” way to behave. The jurisprudence in our court system is clear: a judge cannot rely on these rape myths to assess a complainant’s credibility.
There was a recent social resurgence of the need to recognize these stereotypes and myths and to disengage from them. From high-profile celebrities to one’s next door neighbour, hundreds upon thousands of survivors screamed #MeToo. Survivors felt empowered to share their stories of sexual abuse, harassment and violence, and inspired others to do so without fear of repercussion.
I pause here for a moment to note that the #MeToo movement has not been all positive in terms of impact. As I have written about before, Marie Henein— a defence lawyer who is a woman of colour— faced unprecedented backlash and cruel hypocritical taunts for representing Jian Ghomeshi when he faced sexual assault charges. She was called a “traitor” to her gender for having the alleged audacity to do so. Ghomeshi was acquitted of all charges. Humbly I submit to you that the #MeToo movement cannot stand for the principle that any allegation of sexual assault must result in a verdict of guilty. That would be an irreconcilable, illogical fallacy and outcome of the intended purpose of the movement. It is still the burden of the prosecution to prove a criminal offence beyond a reasonable doubt— and that is surely difficult to accomplish when your complainants are caught lying red-handed in open court.
But what the #MeToo movement does stand for is a re-education of society on gender-induced rape myths. Just because a woman did not cry – or tell anyone right away, or report it to police, or quit her job, or break up with the accused – does not mean the sexual assault did not happen. Though unfortunately, that impermissible legal logic found its way into the recent case of R v Steele. The Ontario Court of Appeal reviewed the trial judge’s decision and reversed the acquittal. The Court found the trial judge grounded his reasoning in archaic myths about how a sexual assault victim should act.
The jurisprudence in our court system is clear: a judge cannot rely on these rape myths to assess a complainant’s credibility.In R v Steele, the Court of Appeal heard an allegation of the accused having had vaginal and anal intercourse with the complainant without her consent. The alleged assault took place after a day of drinking and hanging out together and in an abandoned trailer. The complainant, by all accounts, agreed to enter the trailer. The accused testified that the complainant invited him into the trailer and that the intercourse they had was consensual.
At trial, the judge held that, because the complainant testified she did not “like” the accused, she needed a proper explanation for entering the trailer. In other words: what was her excuse for agreeing to go into a trailer at night with a man she did not like? Because she did not give a good enough reason in her testimony, the judge reasoned she lacked credibility. This finding formed part of his basis for reasonable doubt.
The Court of Appeal held the following:
The implication in the trial judge’s reasons is that consent can be inferred from the complainant’s entry into the trailer. This is wrong in law.
…the trial judge went beyond assessing credibility and made an inference about consent because he could not imagine another reason to enter the trailer other than to have consensual sex. It was open to the trial judge to hold that the complainant’s inability to answer impacted her credibility, but he went further. In so doing, he relied on stereotypes and assumptions – that a woman would not enter a building at night with a man unless she wanted sex – to conclude that the complainant wanted to have sex.[Emphasis added]
Troubling the Court of Appeal in its review of the trial judge’s decision was another fact the trial judge relied on to discount the credibility of the complainant. When the complainant was in the trailer, she advised her parents (either via text or phone call) that she was at the Legion. When then asked why she was not home yet, she responded she would be home soon. The trial judge held this was not how a sexual assault victim, being held against her will in a trailer, would communicate with her parents.
The Court of Appeal ruled harshly:
Here the trial judge specifically found that [the complainant’s] conversation with her father “does not appear to be the response of someone who has just been sexually assaulted.” This is a classic example of an assumption made by a trial judge as to what a victim of an assault would do.
Not surprisingly, the Court of Appeal granted a new trial. The trial courts will rehear the case. And the complainant and the accused will likely have to endure the pressures, hardships and emotional strains of a trial all over again. All because, somehow in 2021, and despite significant gains in social change, old-think rape myths dictated the course of justice.
The information in this article was correct at time of publishing. The law may have changed since then. The views expressed in this article are those of the author and do not necessarily reflect the views of LawNow or the Centre for Public Legal Education Alberta.
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