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Myths And Stereotypes in Sexual Assault Cases (A Recent Case)

Posted by  on March 20, 2018
Myths And Stereotypes in Sexual Assault Cases (A Recent Case)

It has been decades since the law in Canada has banned from the courtroom myths and stereotypes about how complainants in sexual assault cases should react. The change started with key decisions from the Supreme Court of Canada, followed by legislation enacted by Parliament which codifies this prohibition.

Assumptions about how people should behave in certain situations, however, are pretty deeply ingrained and difficult to shake, even among trained and experienced judges who are expressly told to look out for, and avoid, such myths and stereotypes. Often, assumptions are cloaked in the guise of “common sense” or “logic and human experience”, touchstones for how judges and juries decide cases.

In a recent case from Alberta (R. v. A.R.D., 2018 S.C.C. 6), a judge fell into the trap of relying on improper and illegal myths and stereotypes when he found a man Not Guilty of assaulting his step-daughter. The judge relied in part on the behaviour of the child, who was between 11 and 16 years old at the time of the assaults. He found that despite the alleged abuse, the relationship between the defendant and the complainant seemed normal. The judge expected that the teen would have either shown signs of being abused, or made efforts to avoid her step-father, but did not.

The Alberta Court of Appeal overturned the acquittal on the basis that the trial judge had relied on illegal and improper myths and stereotypes in suggesting that the child would have reacted differently had she been sexually assaulted. A new trial was ordered. The defendant appealed to the Supreme Court of Canada, which upheld the finding of the Court of Appeal that the judge had relied on improper stereotypes.

This case serves as another example of how pervasive such myths and stereotypes are. In fact, the trial judge who made the error had even cautioned himself expressly to avoid such myths, then went on to rely on one anyway.

At the same time, this case helps to show that the courts are well-equipped, with legislation and precedent, to address these problems through the appeals process. And when a judge really gets out of line, as recently happened with former judge Van Camp’s notorious comments “why didn’t you just keep your legs together”, both the media and the judicial complaints process are able to ensure that steps are taken to remedy the problem. No solution is perfect, but when one examines how the issue is addressed in these cases, the justice system does not appear to be as broken down in the area of sexual assault cases as many commentators claim.

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Arun S. Maini, lawyer and founder of The Defence Group, has practised criminal law since 1995. He’s a graduate of the University of Toronto and Dalhousie University Law School. After completing his articles at a Bay St. law firm, Mr. Maini joined the federal Department of Justice as a prosecutor of drug trafficking, tax evasion, and immigration fraud cases in Toronto, Brampton and Vancouver. In 1999, Mr. Maini transferred to the provincial Crown attorney’s office in Brampton, where he prosecuted a wide range of criminal offences, from theft to murder. In 2003, Mr. Maini left the government to establish The Defence Group. Mr. Maini handles all criminal offences and regulatory prosecutions.

Over more than 25 years as a criminal lawyer, Mr. Maini has prosecuted and defended hundreds of criminal cases, and has extensive jury trial experience. Mr. Maini has also lectured at The Advocates’ Society and has taught advocacy at the Law Society and Osgoode Hall Law School’s Intensive Trial Advocacy program. Maini appears occasionally in the media to comment on criminal law – see examples from the CBC, the Toronto Star, and the National Post.

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