Debunked Myths About Sexual Assault Have No Place In Fact-Finding Exercises

Bottom Line

Most seasoned workplace investigators will agree that sexual harassment and assault allegations are some of the most challenging to investigate. Among other complicating factors, there are seldom witnesses to these alleged incidents. As such, investigation findings commonly hinge on assessments of the complainant and respondent's credibility, and the inherent reliability of their respective stories.

Although the standard of proof applied in the context of a workplace investigation (i.e. the balance of probabilities) is different than that applied in the context of a criminal proceeding (i.e. proof beyond a reasonable doubt), the art of making credibility assessments and weighing available evidence is much the same.

The Court of Appeal for Ontario's recent decision in the criminal case of R. v. Lacombe serves as a cautionary tale to all fact-finders - including workplace investigators - that reliance on discredited myths and stereotypes, masqueraded as "common sense", will result in flawed decision-making.

Factual Background

In Lacombe, the Respondent was charged with sexually assaulting a fellow tenant in his residential complex. The Complainant alleged that the Respondent touched her sexually without her consent on two separate evenings. The Respondent testified that their sexual contact was consensual and not as extensive as claimed.

At trial, the Respondent was found not guilty. In reaching this conclusion, the trial judge was troubled by the Complainant's credibility and the reliability of her evidence.

The trial judge found it significant that on both evenings in question: (i) the Complainant was dressed immodestly and was not wearing a bra or underwear; (ii) the Complainant engaged the Respondent when he French kissed her - she kissed him back and did not tell him to stop; (iii) the alleged assaults continued for a considerable period of time during which the Complainant did not leave or remove herself; and (iv) the Complainant did not immediately report the incidents to friends, staff, or the police. The trial judge also found it significant that the Complainant voluntarily accompanied the Respondent on the second evening, notwithstanding that the Respondent allegedly assaulted her the night before.

The trial judge relied on these findings to acquit the Respondent.

Court of Appeal Finds Improper Reliance on Discredited Myths and Stereotypes

The trial decision was ultimately set aside by the Court of Appeal for Ontario...