TORONTO – Ontario‘s top court has overturned the acquittal of a man accused of groping his neighbours’ breasts and genitals on two occasions, saying the trial judge relied on “impermissible” stereotypes and myths in assessing the complainant’s evidence.
In a unanimous decision released last week, the Court of Appeal for Ontario ordered a new trial for Richard Lacombe in connection with the April 2015 incidents.
The court says the trial judge identified credibility and reliability as the only issues in the case, and listed a number of “significant” factors that affected his assessment of the complainant.
It says those factors, including the complainant’s clothing at the time and the fact that she did not immediately report the incidents, were based on “long-discredited myths and stereotypes about sexual assault complainants,” which is an error in law.
The court says the verdict would not necessarily have been the same without that error and, as such, a new trial is warranted.
It further says a lower court that previously reviewed, and upheld, the verdict was wrong to find that, because the judge had not spelled out his assumptions, no legal error had been made.
“The very problem with this type of reasoning is that it is insidious. It masquerades as ‘common sense’,” Justice Sarah E. Pepall wrote for the three-judge appeal panel.
“It is evident from a review of the trial judge’s reasons that impermissible stereotypical sexual and myth-based reasoning was utilized in his assessment of the complainant’s credibility and reliability and underpinned his analysis of reasonable doubt.”
Lacombe was charged with two counts of sexual assault in relation to two encounters with the complainant at the building in which they lived, an assisted care reside for adults with disabilities.
At trial, the complainant said that on two consecutive nights, Lacombe knocked on her room door and invited her to go out for a cigarette on the fire escape.
On the first night, the complainant said she was dressed in a pyjama top and bottom with no bra and underwear. She said Lacombe soon began to touch and pinch her breasts and though she told him to stop multiple times, he laughed and continued.
She said he then put his hand in her pants and rubbed her genitals. The complainant testified Lacombe also French kissed her, and she kissed him back because he had ignored her previous objections and she was scared he would hit her. She told no one about the incident, telling the court she was terrified.
On the second night, the complainant said she wore different pyjamas, again with no bra or underwear on, and the events played out largely in the same manner. At one point, however, Lacombe asked her to touch his genitals, and got angry when she refused.
Days later, the complainant told her boyfriend and a friend about the incidents and they encouraged her to call police, she said.
Lacombe, meanwhile, said it was the complainant who knocked on his door the first night and lifted up her shirt asking that he touch her breasts. He told the court she began to get undressed but he stopped her and they went outside for a smoke. Once outside, he said the complainant asked to see his genitals.
He said he gave her a peck on the lips in the hallway the next evening, but denied ever touching her genitals or French kissing her on either occasion.
The trial judge noted there were inconsistencies in Lacombe’s testimony, which at times clashed with the statement he had given police, but not enough to reject his evidence.
When weighing the complainant’s account, however, the trial judge laid out a number of factors that he deemed significant, but “not determinative.”
These included the fact that the complainant did not immediately leave after Lacombe allegedly touched her breasts or genitals, that she French kissed him, that she did not immediately report the incidents and that she accepted a second invitation from him.
The judge also pointed to the complainant’s clothes, noting she “presented herself to Richard Lacombe dressed in a loose fitting pyjama top with no bra and underwear, engaging with a man that she really did not know well at all.”
The appeal court noted the stereotypical assumption that if a woman is not dressed modestly she is consenting “no longer finds a place in Canadian law.”
And the myth that a sexual assault complainant is less credible if they do not immediately file a report is equally unacceptable, the court said in its ruling. “Delayed reporting, standing alone, does not assist in evaluating whether an account alleging a consensual encounter is true or raises a reasonable doubt,” it said.
Nor is there any rule as to how sexual assault complainants are apt to behave, it said. “The trial judge’s reference to the fact that the complainant remained reflects that he was comparing her conduct to conduct he expected of a sexual assault complainant without giving any consideration to her evidence of fear,” the court wrote.
Because the judge’s assessment played an important role in determining whether he believed Lacombe and was left with a reasonable doubt, “it is not possible to divorce the trial judge’s acquittal of the respondent from his flawed reasoning,” the appeal court said.