What is the solution to problematic sexual assault judgments?

​This week, I was privileged to be a witness at the House of Commons standing committee on justice and human rights, speaking to the Members of Parliament about Bill C-51. Bill C-51 proposes a number of significant and deeply disturbing changes to the sexual assault regime under the Criminal Code.
There’s too much to say about that, so I’ll save my breakdown of the problems for another blog post. But for today, I want to focus on the problem of sexual assault judgments and what can be done to fix it.
​In the past year, we’ve seen quite a lot of troubling information coming out in the media about the basis for judgments in sexual assault cases. Particularly, the comments of the court in coming to the legal conclusions have been the subject of a significant public outcry. For example, we recently saw Judge Robin Camp resign after asking a female complainant in a sexual assault trial why she couldn’t just keep her knees together. 
There was uproar as well over an Ontario judge finding that a man was not guilty of sexually assaulting his wife because he believed that he could have sex with her whenever he wanted. The judgement is unclear, and poorly written does not begin to describe it.
In Quebec, just this week, details emerged about a sexual assault allegation involving a teenage girl where the judge concluded that since the teen was a bit overweight, she was probably flattered by the attention. That individual was convicted. But the comments are still deeply concerning.

On the other hand, there are well-reasoned judgments
A good example would be the decision in the Ghomeshi case, where colluding complainants were found to lack credibility. Or the recent decision involving several Toronto Police Officers who were accused of sexually assaulting a parking enforcement officer. There, the Court engaged in a very reasoned assessment of the evidence, eschewing rape myths but explaining the legal significance of issues like what the complainant was wearing:

[188]      There was nothing at all wrong with what AB was wearing that night.  In cross-examination, defence counsel suggested to her that she wore a low-cut top in order to make herself attractive to all the men who would be present at the party.  I found that suggestion to be offensive and irrelevant.  What a woman wears is no indication of her willingness to have sexual intercourse, nor can it be seen as even the remotest justification for assuming she is consenting to sex.  I considered the nature of what AB was wearing to have relevance for two purposes.  First, her top was light weight and provided no warmth.  However, she repeatedly went outside for cigarette breaks with Mr. Kara, on a 12 degrees-below-zero January night, wearing nothing but that flimsy top, even though she was not herself a smoker.  I take that as an indication that she was very interested in spending time with Mr. Kara.  Second, I considered her high-heeled leather boots in my consideration of her balance and ability to walk outside the hotel.  Otherwise, the whole issue of clothing is irrelevant.

​So it is clear that judges can get it right, and can properly assess the evidence in these cases to arrive at correct conclusions. Or at least, some judges can.


Why, then, are we seeing such problematic judgments alongside reasoned ones?
Part of the reason may be that we are finally paying more attention as a society to the issue of sexual assault. We are finally talking about judgments that may not have made it on our radar ten or fifteen years ago. Social media is certainly a part of this. I would be interested to see a comparison of judgments on other, non-sexual assault related issues, to see whether they also have the same divide between “right” and “wrong.”
The biggest question, however, is how to stop judgments that are wrong from existing in the first place. The Government proposes their solution by way of Bill C-51: creating unprecedented positive disclosure obligations on the defence, giving complainants the right to be heard on what evidence is admissible by the defence, and effectively eliminating defences like mistaken belief in consent.

​But those measures won’t address the real issue. If judges are so out of touch with the realities of consent, sexual interaction, and human behaviour that they think a woman can keep her knees together and not be raped, or if they think of women in such demeaning terms as to believe that a woman who is overweight is flattered by unwanted sexual attention, then changing the law isn’t going to change the issue.
While some have proposed better training for judges on the issue of sexual assault, this is problematic on its own. It opens the doors for bias on the part of instructors to subtly inform judicial reasoning. The #IBelieveSurvivors rhetoric is great, but it might not work for the criminal justice system. It begs the question, who does the training? And what is being taught?
There are some lessons we can all agree on, but even social science is not entirely in agreement on rape myths, or the patriarchy, or #yesallwomen or anything else.
I suggest instead broader training – application of proper legal principles in assessment of credibility, coupled with clear direction to judges about what provisions of the Criminal Code relating to sexual assault mean, what defences are permissible, and which have long since been overruled by the common law.
Judges need clear direction about how to decide issues of credibility in sexual assault cases, not training that slants toward believing complainants. The most basic reason for this is the integrity of the reasonable doubt standard and the need to preserve that at all costs. While the goal of re-training judges is noble, any training given to judges must be neutral and based on applications of legal principles to cases before them, rather than the application of the beliefs of various lobby groups with interests in more than just the preservation of a fair and just criminal law system.
I worry that too much focus on the other side of things may remove the procedural protections from the criminal law, rendering sexual assault trials unfair and inconsistent with the application of criminal law principles in other cases.

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