The Supreme Court of Canada has ruled that a decision by an Edmonton judge in a sexual assault trial leaned on stereotypes of how sexual assault victims should act.
Canada’s highest court agrees with the Alberta Court of Appeal that a new trial should be ordered.
The accused is charged with one count of sexual assault and two counts of sexual interference involving his step-daughter. Both identities are protected under a publication ban. The allegations stem from incidents ranging from 2008 to 2014, when the step-daughter was between 11 and 16 years old.
The Supreme Court decision finds Justice Terry Clackson “judged the complainant’s credibility based solely on the correspondence between her behaviour and the expected behaviour of the stereotypical victim of sexual assault. This constituted an error of law.”
“To me, at least, it’s not ever,” said the victim’s mother, who also cannot be identified to protect the identity of her daughter.
“We have a fighting chance for justice. For me, specifically, it is feeling vindicated I guess.”
The victim, who is now 19, said she has mixed feelings about the decision and what may transpire with a new trial.
The Alberta Court of Appeal ruled, two to one, in July to allow the Crown’s appeal.
In its decision, questions were raised about myths and stereotypes in relation to sexual assault victims.
“This appeal raises one issue: did the trial judge err by relying on an impermissible stereotype, or myth, about the behaviour of sexual assault victims in assessing the complainant’s credibility and ultimately acquitting the accused? …The answer is clear: he did,” the decision reads.
“This appeal represents an example of how deeply ingrained and seductive these myths and stereotypes can be…reliance on a stereotype to found an assessment of credibility bearing on reasonable doubt is impermissible-it is an error of law.”
The decision further reads that absence of a change of behaviour in a sexual assault victim is “logically irrelevant… because we know that all sexual assault victims behave differently.”
Clackson, in his original decision, said he did not believe the accused, however he had reasonable doubt.
“One would expect that a victim of sexual abuse would demonstrate behaviours consistent with that abuse or at least some change of behaviour such as avoiding the perpetrator,” Clackson’s decision reads.
“The evidence suggests that despite these alleged events, the relationship between the accused and the complainant was an otherwise normal parent/child relationship. That incongruity is significant enough to leave me in doubt about these allegations.”
The victim’s mother said she initially went through a period of self-blame after the allegations came to light but said she decided to put her faith in the justice system.
Clackson’s decision and the accused’s acquittal shook that faith.
“I just sat there quietly in disbelief. I wanted to scream out. How can you be doing this?” she said.
The mother said she continues to be shocked that expectations and stereotypes of sexual assault victims exist in the justice system.
“It’s unbelievable a society has evolved so much in so many other areas but these stereotypes are still in the court systems after they’ve been proven time and time again no victims reacts or the inaction cannot be the same,” she said.
“Everybody says come forward, tell somebody, tell an adult. We did. We told people. We told police. We told a judge. I think the burden should be only whether they believe the events did or did not occur. How a person acted or did not act should be left out of the equation.”
Her daughter said the trial judge’s decision left her hurt.
“Not everyone reacts the same,” she said.
“That bothered me. I feel like we’ve grown as a society so it shouldn’t be so much of a thing to wrap your head around.”
In July 2016, an Alberta Queen’s Bench justice overturned a teen’s sexual assault acquittal, stating the trial judge resorted to stereotypical reasoning. In that case, the trial judge rejected almost all of the young girl’s evidence and found her actions to be inconsistent with non-consensual sexual touching.
In 2014, court transcripts showed former judge Robin Camp called a sexual assault complainant “the accused” numerous times and asked her why she didn’t resist by keeping her knees together. Both incidents sparked outcry over how judges deal with and respond to sexual assault trials.
The mother said she wants more sexual assault survivors to work in the court system to help educate others; the opinion is seconded by her daughter who said judges need to be more open-minded when dealing with these types of cases.
The mother is not sure how the next trial will take shape and admits to having little faith in the justice system now, but she said the family will ensure it.
“I feel like it’s our duty to try and protect the next victim,” she said.
Despite the hurdles the family faced and the fact the case went all the way to the Supreme Court, the daughter said it is imperative for people to speak up if they are victims of sexual assault.
“Just… come forward. As awful as the process has been, it stopped the day I told my mom,” she said.
“Don’t let [the legal process] get you down. That’s all you can do, try to make sure this stops. It has to be fixed and stopped.”
A pre-trial conference for the accused is scheduled for June 22.
-with files from the Canadian Press and Kendra Slugoski