Despite numerous reforms to the law around sexual assault, many judges still appear to be analyzing evidence and credibility based on outdated assumptions, say some experts in the field.
Judges continue to cite issues such as views about how complainants should react, their appearance, reactions toward the person accused of assaulting them, and delays in reporting incidents in determining the credibility of victims, says Elaine Craig, a professor at the Schulich School of Law at Dalhousie University.
“Even if the assessment of credibility is correct, you see decisions by judges that continue to rely on stereotypes about sex, gender, and rape,” she says.
Applying these assumptions makes it even less likely there will be a criminal conviction in sexual assault trials, she suggests.
The adult criminal court survey published by Statistics Canada shows there were close to 4,000 sexual assault cases across the country in 2011-12, the most recent years for which data is available. There were guilty findings in 41 per cent of the cases with charges stayed or withdrawn in 47 per cent of them.
Those statistics also fail to reflect the overwhelming number of sexual assault complaints that don’t get to court, says Elizabeth Sheehy, a law professor at the University of Ottawa. “The bulk of cases never make it to the police station and then another 10 to 35 per cent do not get past police,” says Sheehy. To combat that obstacle, Sheehy suggests Legal Aid Ontario should provide funding for sexual assault victims right from the moment of a complaint.
Joseph Neuberger, a defence lawyer and past president of the Toronto Lawyers Association, says the statistics around sexual assault can create a misleading picture. The overwhelming number of trials in the area involve defendants and complainants who know each other. “In no other area of criminal law is there a greater motive to fabricate,” says Neuberger.
Regardless of the relationship between the complainant and the defendant, there are still common stereotypes in judgments, says Craig, citing examples that arose in three acquittals issued in the past year by senior Superior Court judges in Ontario. “I read these types of rulings all the time,” says Craig.
In acquitting two men of multiple charges of sexual assault against a woman with a developmental delay who was plied with alcohol and taken to have sex at a field in the north end of Toronto, Justice Michael Quigley described the defendants as reprehensible. But he still had a doubt as to whether the woman had consented. As well, she had a past history of lying to police about incidents.
Craig says the woman’s previous examples of being untruthful made it a very difficult case for the Crown. While not questioning the verdict, she says some of Quigley’s observations, including one about the complainant not remembering if she was wearing underwear, were inappropriate. “This was a case about consent. Underwear was not relevant,” says Craig.
Quigley also concluded it was “contrary to common sense” that the woman didn’t mention a rape or sexual assault when she was able to use someone’s phone to call 911 while still disoriented. “That is relying on the hue-and-cry stereotype that she did not scream rape at the first opportunity,” says Craig.
In a sexual assault trial in London, Ont., in which the defendant engaged in sexual relations with a woman sleeping in his roommate’s bedroom, Justice Andrew Goodman said he didn’t believe the defendant. However, he added that he didn’t accept the testimony of the complainant about how she reacted when she realized who was in the bed. He suggested she may have been upset because she thought it was the roommate and not the defendant in the bedroom. “This was a woman who was asleep. She doesn’t know how this started,” says Sheehy.
In a recent decision in Toronto, the court acquitted a music teacher of sexually assaulting a young student a decade earlier. Justice Kenneth Campbell, former director of the Crown law office in Ontario, began his judgment with a lengthy note about the presumption of innocence.
Campbell noted it was several years before the complainant reported the alleged sexual touching; she made positive comments at the time about the teacher; and she didn’t remember the most explicit allegation in her original statement to police.
An adverse inference about “delayed disclosure” is improper, says Craig, as is suggesting there’s a proper way to respond to sexual abuse. The invocation of myths and stereotypes, however, isn’t just an issue with male judges, according to Craig. “This is a societal problem,” she says.
Neuberger disagrees and says that in his experience, judges take sexual assault cases very seriously.
“This is not about stereotypes. It is about the evidence and applying common sense,” he says.