Elaine Craig is an assistant professor at the Schulich School of Law, Dalhousie University. Alice Woolley is a professor of law in the Faculty of Law, University of Calgary.
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Those who doubt that discriminatory stereotypes and myths about sexual violence continue to inform some sexual-assault trials should read a recent Alberta Court of Appeal decision that overturned the acquittal of a man accused of sexually assaulting a 19-year-old woman. Last month, the appeal court sent the case back for a new trial because the trial judge did not understand the law of consent and had relied on "stereotypical myths" in finding the accused not guilty.
Sending a case back for a new trial is a dramatic move: It's costly to the criminal justice system and it extends the uncertainty, stress and anxiety for complainants and accused. So what did the trial judge say that was so problematic that it merited this result? Judge Robin Camp implied that if the complainant had not wanted to have sex, she could have taken steps to prevent the attack. He pressed her with questions such as, "Why couldn't you just keep your knees together?" And he offered, "If you were frightened, you could have screamed."
In holding the accused, a man who outweighed the woman by more than 100 pounds, not guilty, Judge Camp stated the woman had failed to explain "why she allowed the sex to happen if she didn't want it." Canadian courts have long recognized there is no foundation to the stereotype that a woman cannot be raped against her will.
The judge commented repeatedly on the complainant's morality, concluding that her sense of values "leave[s] a lot to be desired." He insisted it mattered whether she had "the moral or physical strength to rebuff men if she felt like it." Historically, the undue focus on the complainant's moral composition resulted in criminal proceedings in which it was the sexual-assault victim, rather than the accused, who was put on trial. In what is perhaps a telling error, Judge Camp referred to her as "the accused" throughout his reasons.
He trivialized the harm that can be caused by non-consensual sex. In response to her testimony that she was in physical pain during the alleged assault, he remarked that "sex and pain sometimes go together … that's not necessarily a bad thing." The judge also offered the accused and his friends some (fatherly? manly?) advice: He repeatedly encouraged the accused to tell all his male friends that if they did not want to "get in trouble," they need to be far more "patient and gentle" with women.
A case similar to this arose a few years ago in Manitoba after a trial judge commented on the complainant's tube top and suggested "sex was in the air." As a result, and in response to public outcry and numerous complaints filed with the Canadian Judicial Council, Judge Robert Dewar issued a long public apology to the complainant and underwent some training on the issue of gender equality.
The protection of judicial independence demands restrained critique of judges. We want our judges empowered to make difficult and sometimes unpopular decisions. The Canadian Judicial Council is rightly cautious about sanctioning judges for what they say in particular cases. That said, there is a significant public interest in raising awareness about judicial attitudes and perspectives that are wildly out of sync with modern thinking and dramatically inconsistent with the values reflected in laws addressing problems such as sexual violence. As the Supreme Court of Canada once remarked, in some cases "the actions and expressions of an individual judge trigger concerns about the integrity of the judicial function itself."
Fewer than 10 per cent of sexual-assault victims come forward. Survivors of sexual violence continue to say one of the main reasons for not reporting is fear of the criminal justice system. One source of this fear involves a concern that the same old stereotypes about women and rape will be relied upon by those responsible for deciding whether to believe them. Reasoning such as Judge Camp's suggests this fear may be well founded.
Fortunately, Judge Camp will not be presiding over any more sexual-assault trials. He was appointed to the Federal Court as part of the final pre-election rash of Conservative appointments. He will, however, be responsible for hearing the claims of women who seek refuge in Canada to escape sexual violence in their countries of origin. It has been decades since Canadian laws were changed to remove the kinds of stereotypes relied upon by Judge Camp. Do we need to be "patient and gentle" with judges who still don't get it?