When will they ever learn?

As 2019 comes to a close, three recent sexual assault cases make apparent the continuing and desperate need for judges to receive proper education in the dynamics of sexual violence. As Patricia Hughes wrote recently in Slaw:

“Will we ever reach a point when how women dress or whether they don’t immediately rush to tell someone they’ve been sexually assaulted are not interpreted as superseding consent in determining whether a sexual assault has occurred?”

“An interest in sex”

When his girlfriend’s daughter was between 11 and 14 years old, L.M. sexually assaulted her a number of times.  He was charged with four offences and, in a voluntary statement to police, admitted to one incident of oral sex and one of penetration, which he then denied at trial. The trial judge did not believe his denial and agreed with the Crown that the police statement amounted to a confession of “a sexual crime.”  Nonetheless, Justice Tramner of the Superior Court of Justice acquitted him, stating that the girl’s “interest in sex” detracted from her credibility as a witness.

The Crown appealed, and the Court of Appeal unanimously sent the case back for a new trial. Writing for the court, Justice Mary Lou Benotto, noted:

“Evidence of a complainant’s prior sexual activity is never admissible to support the twin myths that the complainant is less worthy of belief or more likely to have consented to the activity . . . Clearly, there was enough evidence to convict.”


In 2017, a Saskatchewan trial court judge found Mr. Kishayinew guilty of sexual assault and sentenced him to 4.5 years in prison. The case hung on the complainant’s testimony, in which she told the court that she was too intoxicated to give consent.

Mr. Kishayinew appealed his conviction, and the Court of Appeal, in a 2-1 decision, agreed with him.

The trial court judge found that the complainant’s testimony about the events of the night was reliable and that her state of intoxication was such that she could not “freely and consciously grant, revoke or withhold her consent.”

Two of the Court of Appeal justices ruled that the trial judge’s finding of incapacity conflicted with the judge’s finding that her evidence was reliable, so the conviction was set aside and the case sent back for a new trial.

In commenting on the Court of Appeal decision, University of Saskatchewan law professor Lucinda Vandervort said:

“A more nuanced approach is required. Testimony may be reliable in whole or part. An impaired witness whose evidence of some of the circumstances is unreliable may nonetheless provide reliable evidence about their own state of mind.”

Impermissible stereotypes

In 2015, Richard Lacombe was charged with two counts of sexual assault against another resident of an assisted care residence for adults with disabilities. At trial, in 2017, Justice Wright of the Ontario Court of Justice, acquitted Lacombe and, in doing so, said:

“While not determinative, it is significant that [the complainant] presented herself to Richard Lacombe dressed in a loose fitting pyjama top with no bra and underwear.”

He also questioned her credibility because she waited some time before reporting the sexual assaults to the police.

In overturning the acquittal, Justice Sarah E. Pepall of the Ontario Court of Appeal wrote:

“It is evident from a review of the trial judge’s reasons that impermissible stereotypical sexual and myth-based reasoning was utilized in his assessment of the complainant’s credibility and reliability. . . . [which] played a prominent role in determining both whether he would believe the [accused] and whether he was left with a reasonable doubt as to his guilt . . . . his assessment of the entirety of the evidence was fatally flawed by the approach he took to the complainant’s evidence.”

The acquittal was set aside and the case sent back for retrial.

Where’s the justice?

In all three of these cases, there will be a retrial. This means each of these complainants will have to testify and be cross-examined again. Even if the retrials result in findings of guilt against the accuseds, this is a high price for the complainants to pay: most women cannot bear to think about testifying once let alone twice. It is small wonder that the reporting rate for sexual violence crimes is so low.

As Hughes wrote:

“Judges who fail to distance themselves from or whose “common sense” about sexual assault reflects myths and stereotypes long discarded display flawed reasoning; they disrupt the legal system because of the need to retry cases; and they fuel women’s scepticism about the system’s capacity to respond to them.”

It’s past time for judges to go to sexual assault school.

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