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.