Busting Sexual Assault Myths (Still)

It's been a long time since R. v. Seaboyer1 was released in 1991 but the myths just keep on coming up in sexual assault cases. In three recent decisions, Appellant Courts have had to consider decisions below that dealt with sexual assault myths. In the first case2, a criminal court judge acquitted an accused and the Ontario Court of Appeal said that the trial judge's analysis was tainted by “long discredited myths and stereotypes about sexual assault complainants”. In that case, a woman had been sexually assaulted by a neighbour who knocked on her door and invited her out for a cigarette on the fire escape. As they chatted he began touching and pinching her breasts. She asked him to stop but he laughed and put his hand down her pants and rubbed her hard. When he kissed her, she kissed him back because he wasn't listening to her and she feared he would hit her. She did not report this first assault. A second assault occurred under virtually the same circumstances. Again, she agreed to meet the man because she was afraid of his reaction. He became angry when she refused to masturbate him. After the second assault she reported it to her boyfriend and to another friend. They advised her to call the police which she did.

At trial, the judge questioned the woman's credibility in part because of the way she was dressed, and also because of her failure to leave the situation right away and immediately report what had happened. The judge ultimately rejected her version of the events. The Crown appealed the case and the Ontario Court of Appeal agreed a re-trial was necessary because the judge relied onrape myths. The Appeal Court said that the manner in which a woman dresses has no place in a trial judge's assessment of her credibility and reliability; it does not signify consent or justify an assault. The Appeal Court also said the trial judge should not have placed any weight on the woman's failure to make an immediate report to police. The Court saidthe myth that a sexual assault complainant is less credible if she does not immediately complain is one of the more notorious examples of the speculation that, in the past, has passed for truth in this difficult area of human behaviour and the law. Justice Pepall was quoting a decision that had been rendered 10 years earlier. She went on to saythere is no rule as to how victims of sexual assault are apt to behave. The trial judge wrongly compared the woman's conduct to what he expected of a sexual...