In July, I wrote about the importance of expert witnesses in sexual assault trials. I referred specifically to the appeal by musician Jacob Hoggard, in which his lawyers argued that the trial judge improperly allowed expert evidence to be heard by the jury. I took the position that because of the pernicious hold that rape myths and stereotypes continue to have in our culture — including in our courts — we need that evidence to explain why survivors of sexual assault behave in ways that often appear counterintuitive to outsiders.
The Court of Appeal released its decision in August, and it’s a troubling one. While Hoggard’s conviction was upheld, and he began serving his sentence the day the decision was released, the Court of Appeal concluded that “the trial judge erred by admitting the expert testimony.”
(Hoggard’s legal troubles are far from over. He is scheduled to go on trial later this month on another sexual assault charge from 2016. He is also facing a civil suit brought by one of the women from his first trial.)
Some background
Hoggard had been charged with sexual assault causing bodily harm with respect to two young women in 2016. He was convicted on one count and given a five-year prison sentence.
His appeal raised a number of issues, including whether the trial judge erred by admitting the evidence of the neurobiology of trauma.
The Crown called Dr. Lori Haskell, a clinical psychologist, who testified about the broad range of responses by victims to being sexually assaulted.
(Full disclosure: I know Lori professionally and respect and admire her work. I’ve heard her present on a number of occasions. What she shares – whether at a conference or education seminar, and regardless of the audience — is based in her extensive professional experience, including research. It is scientific, evidence-based and objective. I always learn something new and, as a result, feel more confident in my own ability to understand what may be going on for those who have survived a traumatic incident.)
She was permitted to give the jury a “generic” lesson on the neurobiology of trauma; meaning she could not link her evidence to the complainants, neither of whom she had assessed.
As noted in the Court of Appeal decision:
“The trial judge was concerned that myths, possible unconsciously held, about how a ‘real’ sexual assault complainant would behave would mislead the jury. She concluded that an instruction alone would ‘not make sense’ in the absence of basic scientific evidence which informs it.”
In her testimony, Dr. Haskell discussed the nature of traumatic events and different kinds of responses people can have to them, including the impact on behaviour, attention and memory. In particular, she testified that people who are subjected to a traumatic event, including a sexual assault, may have a fragmented memory and lack a coherent narrative about what has been done to them, and that trauma can cause the person to disassociate, lose executive function and experience thought impairment.
The decision
The Court of Appeal, in a unanimous decision written by Justice Benotto, found that the judge had erred by admitting the expert evidence, but did not find that any of the other four grounds of appeal were warranted, so upheld Hoggard’s conviction.
The Court felt that the expert’s evidence was not necessary; that it is commonly understood that myths and stereotypes about sexual assault and how victims respond should be ignored, and that it is enough for a judge to provide the jury with clear instructions about this, including reminding them not to engage in “stereotypical reasoning.”
This seems overly simplistic to me. As I explore in my soon-to-be-released book And Sometimes They Kill You: Confronting the epidemic of intimate partner violence, stereotypes and myths – about many things, including sexual assault – exist at an almost subconscious level for many people, who are not aware they are engaging in “stereotypical reasoning, “ even as they do it. If we were able to simply follow the instruction not to do this, we would have made much more progress in eradicating many social wrongs.
We may have moved the needle in the right direction over the past few decades in terms of understanding sexual assault, but those myths and stereotypes remain alive and well, even in the minds of many who should know better. Surely, more knowledge is always better than less, especially on a topic as fraught with misinformation as sexual assault.
What’s next?
While Jacob Hoggard’s conviction and sentence remain in place and he faces another trial later this month, the Court of Appeal decision creates a dangerous situation.
Will Crowns be less likely to call expert witnesses in sexual assault trials? Likely.
Will defence lawyers be aggressive in opposing the use of expert witnesses when they are called? Almost certainly.
Will both judges and juries be left without the critical expertise they need to decide these cases properly? Yes.
Most importantly, will this decision make an already hostile environment for sexual assault survivors even more difficult for them to navigate? Absolutely.
And that is the real tragedy in this decision.