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 superceding consent in determining whether a sexual assault has occurred? It’s been some 20 years since the Supreme Court of Canada, particularly L’Heureux-Dube J. in dissent, but also the majority, in Seaboyer emphasized the distorting role myths and stereotypes play in deciding sexual assault cases. The recent Court of Appeal decision in R. v. Lacombe tells us that some (in this case lower court) judges have still not heard the message.
Justice Peter Wright, of the Ontario Court of Justice, acquitted Richard Lacombe of two counts of sexual assault. The Crown appealed and on appeal, Justice Rick Leroy, of the Superior Court of Justice, identified the grounds of appeal as follows:
… the trial judge erred in law by assessing the complainant’s credibility on the basis of discredited myths and stereotypical assumptions when he noted:
i. That the complainant did not immediately leave the scene when the Respondent commenced the alleged sexual assaults;
ii. That the complainant did not say “no” to some of the acts performed by the Respondent during the alleged sexual assaults;
iii. That at the start of the alleged sexual assaults, the complainant was wearing pyjamas without a bra or underwear underneath in the presence of the Respondent; and
iv. That the complainant was an unreliable witness due to her failure to immediately report the first incident of alleged sexual assault. (SCJ, para. 1)
Justice Leroy explained that for a successful appeal, the Crown must show that the trial judge erred in law and that “had the errors not occurred, there would not necessarily have been an acquittal” (SCJ, para. 2). In the normal course, a finding on the basis of credibility would not give rise to a question of law; however, it would if it were based on stereotypical assumptions. Justice Leroy then articulated the principles that apply in sexual assault cases:
i. Complainants are entitled to reliance on a system free from discredited myths and stereotypes as to how a victim ought to respond and a judiciary whose impartiality is not compromised by biased assumptions;
ii. The complainant’s clothing is no indication of willingness to engage in sexual relations; going somewhere alone with a man does not signify consent; fear of violence vitiates consent; consent is required for each incident of sexual contact; passivity is not consent;
iii. In assessing credibility the timing of the complaint is simply one circumstance to consider in the context of the case; Delayed disclosure standing alone will never give rise to an adverse inference against the credibility of the complainant …. The trier may use the evidence of the making of the complaint as narrative evidence for the permissible purpose of showing the fact and timing of the complaint, which may then assist the trier of fact in the assessment of truthfulness or credibility….
iv. These cases should never be decided on how abuse victims are expected to react by people who have never suffered abuse …. (SCJ, para. 6, citations omitted)
So far, so good. Yet in determining whether the trial judge did err in law, it is as if Justice Leroy did not reread the principles he laid out so clearly. Part of the reason for this is accepting the trial judge is entitled to rely on “common sense” and experience, as long as they do not stray into “generalizations or matters not in evidence” (SCJ, para. 7). It is Judge Wright’s “common sense” that leads him into error.
The Court of Appeal didn’t mince words in making it clear that neither the trial nor the appellate judge managed to avoid relying on stereotypes or, in the latter case, at least, failing to appreciate how the trial judge failed to separate stereotypical myths about sexual assault from the testimony.
The complainant and Lacombe lived in the same adult assisted-care facility for persons living with disabilities (we are told nothing about the nature of the complainant’s or Lacombe’s disability and must presume the disabilities are irrelevant to the events that took place or to the capacity to consent). The complainant and Lacombe’s testimony about the events that occurred were in large measure in conflict. The complainant said that the contact was initiated by Lacombe who asked the complainant to go to the fire escape to smoke and talk, and then began to touch her breasts, whereas Lacombe said the complainant entered his room and began to engage in sexual behaviour, such as touching her own breasts and inviting him to do so; the complainant said she told Lacombe to stop touching her breasts, but he did not and began touching her clitoris and then they French kissed, while Lacombe denied this completely; the complainant said she accepted Lacombe’s invitation to go out on the fire escape again the next night and that Lacombe engaged in sexual activity with her similar to the night before, as well as asking her to masturbate him, while Lacombe testified that they had met by chance the next night and merely talked, denying any sexual activity.
The complainant reported these events as she testified about them two days later, delaying because she was afraid of Lacombe (the Court of Appeal notes, “The complainant testified that she did not call the police immediately because she did not know what to do at the time. She moved out of the residence about a month after the incidents.” (CA, para. 9). The complainant’s clothing became an issue. She was, she said, wearing pajamas without underwear both nights; however, she testified that on the second night, Lacombe put his hand down her underwear, an “inconsistency” Judge Wright noted.
According to Justice Leroy, Judge Wright labelled several aspects of the complainant’s testimony as “not determinative”, but “significant” (SCJ, para. 16), including that the complainant stayed despite testifying that Lacombe engaged in other sexual activity; she participated in the French kissing which “carried on for some time”; although she noted bleeding the first night, she did not seek assistance; she accepted Lacombe’s invitation the second night; on both nights, “[t]he complainant was dressed in a loose fitting pyjama top with no bra and underwear” (SCJ, para. 16; the Court of Appeal sets these out more fully (CA, para. 17)].
Justice Leroy quoted Judge Wright as follows: “’I am troubled by the reliability of the complainant’s evidence. Common sense and life experiences” [sic] would comport with the notion that something was happening on April 18th and 19th between the complainant and Respondent, but not as the complainant would have this Court believe.’” (SCJ, para. 17, emphasis in SCJ). As a result, although Judge Wright found weaknesses in Lacombe’s evidence, he could not convict him.
In summarizing Judge Wright’s reasons, Justice Leroy stated the following: Lacombe’s version “does not signify silence or a no and is probative to consent”; furthermore, “[i]f there is some doubt about whether the complainant lifted her pajama top to expose her breasts to the accused as he asserted, then loose clothing is relevant” (according to the Court of Appeal, Judge Wright did not make this connection (CA, para. 48); the delay in reporting is “a neutral factor”, about which Judge Wright “did not articulate a presumptive inference”. (SCJ, paras. 22 and 23)
Justice Leroy agreed “it is arguable the trial judge relied on discredited rape myths in his analysis. As noted earlier in these reasons, the appropriate application of accumulated wisdom and inappropriate intrusion of judicial stereotyping is a fine line” that in this case, left the decision open to review (SCJ, para. 24). He noted that Justice Wright “did not articulate the assumptions, if any, he relied on” and did not relate them to the complainant’s evidence; his “references to the complainant’s attire and behaviours in [his] reasons were equally consistent to a general finding or statement that behavioural changes in the complainant ‘would not be unexpected’. He did not say otherwise.” (SCJ, paras. 26 and 27)
Thus Justice Leroy could not find an error in the trial judge’s reasoning, but if he was wrong, the relationship to the acquittal was not made out, since
the judge was faced with divergent narratives. On one, he acknowledged would, in isolation, forge a conviction. On the other, he heard a narrative that dispelled the essential elements of sexual assault. Both narratives could be true. He said that on all the evidence, he was unable to resolve the differences. (SCJ, para. 31)
Judge Wright found that Lacombe’s evidence did not allow him to find Lacombe was lying; reasonable doubt leads to an acquittal (SCJ, para. 32).
Judge Wright’s “common sense” and his “life experiece” are superimposed on expectations about how victims of sexual assault are to behave and that, while he fails to make an explicit link, there is an undertone that the complainant’s clothing played a role in whether Lacombe could be held responsible for his actions. He runs afoul of exactly why relying on stereotypes or myths is dangerous, as explained by the Court of Appeal:
Martin J. described the dangers associated with myth-based and stereotypical reasoning in R v CMG…at para. 60:
Broadly speaking, myths and stereotypes rest on
untested and unstated assumptions about how the world
works or how certain people behave in particular
situations. They often involve an idealized standard of
conduct against which particular individuals are
measured. Sometimes general, assumed or attributed
characteristics are applied to a particular individual or
circumstance, often without an analysis of whether there
is any merit in the general assumption or whether it truly
applies in a particular situation. (CA, para. 34)
In the Alberta case, Justice Martin (as she then was) considered matters that bear a resemblance to those in Lacombe, pointing out
…when analyzed, each unexplained part of this impugned paragraph appears to tap into a discredited line of reasoning and fails to take the whole of the complainant’s testimony into consideration. The comment that she did not scream or run ties into the idea that true victims of sexual assault will resist their attack. The comment that she did not tell her friend or her aunt resurrects the abrogated doctrine of recent complaint, and noting how she appeared normal to her aunt, as well as all the other comments, suggests that there is a particular way in which real victims of sexual violence would behave. The trial judge’s comments in the case at bar illustrate how quickly such myths and stereotypes can be engaged.
 It is also important to my finding that the trial judge did not expressly state why this evidence was relevant or how it was used in the analysis. Depending on the circumstances, any of these comments may have had been relevant and material to a fact in issue. However, absent any express or explicit explanation of the probative value of such comments, the prospect looms large that the trial judge is employing impermissible myths and stereotypes.
In Lacombe, the unanimous Court of Appeal found [i]n assessing [credibility and reliability, the sole issues in the case] as they related to the complainant, the trial judge turned to factors, each of which he described as significant, but not determinative. Almost all these factors relied by implication on long-discredited myths and stereotypes about sexual assault complainants.” (CA, para. 35).
Although the trial judge identified the complainant’s clothing as “significant”, he did not explain why it was. Its relevance was by implication; however, “Dress does not signify consent, nor does it justify assaultive behavior. As such, it had no place in the trial judge’s assessment of the complainant’s credibility and reliability. The trial judge’s attribution of significance to this factor impermissibly adopted discredited reasoning.” (CA, para. 39).
Similarly, he treated the fact the complainant did not immediately report the assault or talk to others about it as significant; this, too, relies “on the stereotypical view that victims of sexual aggression are likely to immediately report the acts, and conversely, to conclude that the lack of immediate reporting reflects either absence of assaultive or non-consensual behaviour” (CA, para. 41). The same can be said of how the trial judge considered the complainant’s staying, since in the trial judge’s view, this is not what one would expect a sexual assault victim to do (CA, para. 43-45).
Treating these “conclusions” as “common sense” is exactly why stereotypical thinking continues: appealing to common sense purports to give a legitimacy to stereotypical thinking. Although the Court of Appeal does not say so, one might argue that it reflects gendered patterns of thinking about a gendered crime. It is not that all men believe the stereotypes or that all women do not or that only women every suffer sexual assault and men never do; rather, it is that the patterns are gendered.
The Court of Appeal cites one portion of the trial transcript that bears reproducting because it reflects most clearly what the trial judge considered to be “common sense” about claims of sexual assault:
Crown: […] And upon going back inside, she realized that her clitoris was bleeding and that she saw that bleeding occur for approximately five seconds.
Court: So she immediately reports this to the staff and to the police, does she?
Crown: No, Your Honour, doesn’t re … .
Court: She goes out with a virtual stranger onto a – on a – on a fire escape with no bra, no underpants, and would – how many times you – you have asked me to use common sense.
Court: How many times would it take for this kind of touching to take place before such a person would get out of that situation immediately? Would it take one or two, five, eight, how many would it take?
Crown: Frankly, I don’t know, Your Honour.
Court: No, I don’t either, but common sense tells me not much.
Crown: Common sense tells me not much as well.
Court: All, right, okay. So we’ve got French kissing, touching nipples.
Crown: And that she kissed back …
Court: And she kissed back, yeah.
Crown: …as a result of being scared.
Court: What does common sense say? All right, I supposed I – that’s – that’s speculative. I suppose anything could happen. But she did kiss back… (CA, para. 53)
The trial judge’s decision to acquit cannot be separated from “his flawed reasoning” and therefore it is not possible to say that the error of law in assessing credibility on the basis of stereotypes might not have resulted in a conviction. The Court of Appeal ordered a new trial.
After I’d finished my penultimate draft of this post and just before I planned to post it, I saw yet another report in The Globe and Mail about a case in which the judge had relied on myths. In this case, Her Majesty the Queen v. L.M., Superior Court of Justice Gary Tranmer acquitted L.M. of “sexual assault, sexual
interference, invitation to sexual touching, and assault. The four charges against the respondent arose from allegations of sexual activity with his girlfriend’s daughter, who was between the ages of 11 and 14 years old at the time of the
alleged offences.” L.M. was in his late forties. (Ontario Court of Appeal decision, para. 1) L.M. admitted certain actions had taken place, but blamed the complainant for initiating them, although his statement to the police, which the judge treated as a confession, and his testimony denying the same were inconsistent.
Although the trial judge did not believe the respondent’s denials and was not left with a reasonable doubt, he acquitted him because of the complainant’s testimony, saying that her interest in sex raised questions about her credibility and therefore he was left in reasonable doubt “‘on the whole of the evidence'”. Consent was not an issue because of the complainant’s age and because L.M. “was in a position of trust towards her”. The Court of Appeal stated, “the issue was the sexual contact between the respondent and a child, and the complainant’s evidence did not stand alone. It had to be considered in the context of all the evidence that the trial judge accepted, including the polygraph statement [in which the respondent admitted certain acts.” (L.M., CA, para. 37) The Court of Appeal found that the trial judge made several errors, but relevant here is his reliance on the complainant’s sexual activity:
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. Consent of a child is irrelevant and, in these circumstances, impossible at law. Yet, the trial judge considered this evidence in reference to her credibility. It appears in the section of the reasons dealing with the complainant’s credibility. Other underlined headings include “Lies” and “Motivated by Money”. (L.M., CA, para. 51)
The Court of Appeal in L.M. did not discuss the impact of stereotypes and myths at length, as did the Court of Appeal in Lacombe; however, one can infer that Justice Tranmer’s reliance on the complainant’s “interest in sex” was responsible for the contradictions in his analysis and the insufficiency of his reasons. The Court ordered a new trial.
In both these cases, not only will the respondents be subject to the justice system again, but also the complainants will need to testify yet again about what happened to them. 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.