Judge relied on rape myths in complainant’s credibility assessment: Ontario Court of Appeal

The Court of Appeal has ordered a new trial in a sexual assault case, finding the trial judge relied on rape myths in assessing the claimant’s credibility.

Released March 25, the decision was reached by Justices Mary Lou Benotto, Julie Thorburn and Katherine van Rensburg. The Crown had appealed on two grounds, that the trial judge improperly relied on stereotypes about victims of sexual assault when assessing the complainant’s credibility, and that the judge excluded evidence consisting of the complainant’s prior consistent statements.

All three judges agreed the appeal should be allowed, but while Benotto and Thorburn found rape myths were present in the trial judge’s assessment of two areas of the complainant’s testimony, van Rensburg only saw them in one. “To overturn an acquittal, the Crown must show, to a reasonable degree of certainty, that the verdict might have been different had the error not been made,” said the decision. The latter then found it necessary to deal with the second ground of appeal to overturn the acquittals, while the former did not.

“The case demonstrates the difficulty in distinguishing between legitimate credibility assessments of a sexual assault complainant’s evidence, and prohibited lines of reasoning based on rape myths,” says Marianne Salih, partner at Edward H. Royle and Partners LLP, who was not involved in the case. “The fact that these analyses are so case specific can make it difficult for trial judges to navigate this fine line.”

The alleged assault occurred in July 2018 in Britt, Ont. The 24-year-old-male accused connected on Facebook with the complainant, after asking his mother about meeting people his age in the town – his parents lived in Britt, but he was from Bracebridge. After communicating online and meeting in person once, the complainant and accused went swimming at the local docks and drank alcohol. They then visited with the complainant’s parents until it was time for the accused to leave. The complainant agreed to walk him halfway.

The complainant testified that, during the walk, the accused made an advance on her, which she rejected. She said they then came across an abandoned trailer and the accused suggested they go inside. In the trailer, he overpowered her and sexually assaulted her, while she resisted and told him to stop repeatedly.

According to the accused, his advances were welcomed during the walk and the idea to go inside the trailer was the complainant’s. In the trailer, the two had consensual sex, then hugged and said goodbye, he said.

Superior Court Justice Edward Koke found both parties credible but took issue with two aspects of the complainant’s testimony. One, Koke said she failed to explain why she entered the trailer and that her decision to walk the accused part of the way home was inconsistent with her testimony that she did not like him. And two, the complainant returned a missed call from her father after the alleged assault and told him she was much closer to home than she was. “Not being candid with her father” was not “the response of someone who has just been sexually assaulted and has been kept in the trailer against her wishes,” said Koke. The judge said he was left with reasonable doubt, and acquitted.

This assessment applied “irrelevant and stereotypical views about the behaviour of sexual assault victims under the guise of a common-sense approach to credibility assessment,” said Justices Benotto and Thorburn. On the first aspect of the complainant’s testimony, the judges said Koke had implied that the complainant’s entry into the trailer implied consent. The second was “a classic example of an assumption made by a trial judge as to what a victim of an assault would do,” said Benotto and Thorburn.

van Rensburg disagreed that Koke relied on a stereotype in his treatment of the evidence about why the complainant walked home with the accused and entered the trailer. Salih says the trial judge had appropriately found that the complainant’s decision to do so was inconsistent with her testimony she did not like the accused. “This was relevant to her credibility,” says Salih.

van Rensburg said that it was not that entry into the trailer implied consent, but that the complainant’s refusal or inability to provide the court a reason why she entered the trailer detracted from her credibility. Koke’s statement to this effect was rooted in the evidence and not in a stereotype, said van Rensburg.