Myths and Stereotypes about Sexual Assault Victims: Expected Conduct
There is no rule as to how victims of sexual assault are apt to behave.
A trial judge makes a fatal error in reasoning when that judge bases findings of credibility on assumptions that are unsupported by the evidence.
A trial judge makes a fatal error in reasoning when that judge bases findings of credibility on assumptions that are unsupported by the evidence.
It is an error of law to rely on pre-conceived views about
how a sexual assault victim would behave.
R. v. D.D., 2000 SCC 43 (CanLII), [2000] 2 S.C.R. 275 at para. 65;
R. v. A.R.J.D., 2018 SCC 6 (CanLII), [2018]
1 S.C.R. 218, at para. 2.
Although trial judges must exercise common sense when making
credibility findings and resolving what actually happened in a case, relying
upon assumptions about what women will and will not do may impact a judge’s
objective deliberation of the reasonable doubt standard.
R. v. J.L., 2018 ONCA 756 (CanLII), at para. 47: where the trial judge improperly relied on a behavioural assumption in assessing credibility, viz: "I cannot accept that a young woman would go outside wearing a dress in mid-December, lie down in dirt, gravel and wet grass and engage in consensual sexual activity."
See also R. v. Mah, 2002 NSCA 99 (CanLII), [2002] N.S.J. No. 349,
at para. 75, per Cromwell J.A. (as he then was).
Reliance on
stereotypical assumptions is not always immediately obvious. Sometimes the impermissible use of
stereotypes is opaque, cloaked with the faux imprimatur of common sense.
See R. v. A.B.A. 2019 ONCA 124 (CanLII), 372
C.C.C. (3d) 301, at para. 7.
To suggest
that stereotypical thinking is merely logic or common sense is a licence for it
to continue unmasked and unabated.
Among others, the following have been found to be impermissible stereotypes about sexual assault victims:
*That sexual assault victims tend to scream for
help. Some will, others will not.
R. v.
Kiss, 2018 ONCA 184 (CanLII), at para. 101.
*That a victim of a sexual assault will leave
or attempt to leave the assault.
R. v. Lacombe, 2019 ONCA 938, at para.
45.
Or similarly—
*That child sexual assault survivors will demonstrate avoidant behaviour in relation to their sexual perpetrators.
R. v
A.R.D., 2017 ABCA 237 (CanLII), at para. 47 (aff’d R. v. A.R.J.D.,
2018 SCC 6).
*That a victim of domestic assault will contact
or cooperate with police if she had been assaulted.
R. v.
Sadeghpour, 2019 ONCJ 477,
at para. 13.
Historically,
general assumptions about human behaviour have operated to undermine a complainant’s
testimony. But they may also operate in the reverse to undermine the accused's credibility and artificially bolster a
complainant’s credibility.
R.
v. J.L., 2018 ONCA 756 (CanLII), 367 C.C.C. (3d) 249, at paras. 46-47.
In R. v.
Cepic, 2019 ONCA 541, for instance, the trial judge’s path to conviction
rested largely on a series of erroneous assumptions about what a young woman
would or would not do in the when visiting a male strip club for the first
time. These assumptions not only
bolstered the complainant’s testimony, but also undermined the accused’s version
of events.
Written by Stuart
O’Connell (All rights
reserved to author)