Myths and Stereotypes about Sexual Assault Victims: Dress
Myths and stereotypes about sexual assault victims have no place in a
rational and just system of law. Relying on myths and stereotypes to assess the
credibility of complainants jeopardizes the court's truth-finding function.
R.
v. A.G., 2000 SCC 17, [2000] 1 S.C.R. 439, at
para. 2.
Reliance on discredited stereotypes in the assessment of
credibility is an error of law.
A.R.D., 2017 ABCA 237, at
para. 9.
Dress
The stereotypical assumption that “if a woman is not modestly dressed,
she is deemed to consent” no longer finds a place in Canadian law”.
R. v. Ewanchuk, 1999 SCC 71, [1999] 1 S.C.R. 330.
In R. v. Lacombe, 2019 ONCA
938, the complainant wore loose-fitting
pajamas with no bra or underwear when she met the accused on two successive occasions during which, she claimed, the accused sexually touched her without
her consent. The trial judge, in his assessment of the complainant’s
credibility on the issue of whether the complainant had consented to the touching, found the complainant’s state of dress to be “significant” (though
he did not explain how). On a successful Crown appeal, the Court of Appeal for
Ontario concluded that the trial judge had relied on impermissible
reasoning: the significance that the trial
judge imputed to what the complainant chose to wear when she interacted with the accused relied on impermissible
reasoning, as it was rooted in a discredited stereotype.
Dress does not signify consent, nor does it justify assaultive behavior.
R. v.
Lacombe, 2019 ONCA 938, at para. 39.
Stuart O’Connell, O’Connell Law Group, Toronto.
Tel: 416-628-1942
(All rights reserved to author)
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