December 2019 | Article

Busting Sexual Assault Myths (Still)

Torkin Manes LegalPoint

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 on “rape 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 said “the 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 say “there 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 assault complainant.

 In the second decision3, the defendant  challenged a decision of the Ontario Human Rights Tribunal where the Vice-Chair accepted the complainant’s testimony that, over the course of her employment, she’d been subjected to discriminatory behaviour, sexual harassment and a long series of sexual assaults that progressed from touching to intercourse.  In this case, there were only two witnesses; the complainant and the respondent.  There was no dispute that the complainant had some difficulties with her memory.  The respondent also made an issue about the fact that the complainant did not report the assaults to her doctor and there were some inconsistencies in her evidence.  At the hearing, two doctors gave expert evidence regarding the complainant’s memory.  The Divisional Court upheld the decision of the Vice-Chair who relied on expert evidence concerning delayed disclosure and memory issues.  The Vice-Chair held that because of the complainant’s memory issues, inconsistencies in her evidence took on less significance as a test of her truthfulness than they might in the case of a witness who was not suffering from memory problems.  It was one doctor’s opinion that the complainant’s pain and trauma caused her to have problems accessing information in her memory, even simple information about her own life.  Another doctor testified that anxiety can also worsen one’s memory. 

Memories, particularly traumatic memories do not always work the way one may think.  It is common for assault survivors to have difficulty recalling all of the details of the trauma.   It is also not uncommon for memories to contain gaps or for complainants to have difficulty remembering the order of events, particularly if they are long ago.  With traumatic memories there is often a lack of context and time perspective.  It is also not uncommon for the assault survivor not to recall the whole event but parts may remain quite vivid.  Assault survivors are less likely to recall details they consider to be peripheral or not central to their experience.  This does not necessarily mean that the memory is inaccurate.  If the person does not attend to the detail at the time, it does not become encoded in memory.  Trauma tends to focus attention and therefore fewer details are attended to.  Unless they are very important, dates are not usually remembered. 

People may be able to recall dates by reconstruction (i.e. tie one event to another event) however reconstruction may be wrong.  A person could realize the error in the reconstruction and then change their mind. 

Disassociation is a method of coping and can cause central elements of the event to be inaccessible.  As well, a high level of emotion increases the ability to remember the central events and decreases the ability to remember peripheral events.  Therefore, it is very common to initially to have various disjointed and poor memories and as abuse victims recount their memories, to have an increase in memories and remember more details over time. 

When abuse is severe and repeated it is common to stop remembering the details of a particular incidents and to be unable to distinguish between hear incidents of abuse.  However, there may be sensory memory (as opposed to verbal memory) and as the abuse survivor talks about the abuse, it is normal for sensory memory to trigger verbal memories. 

In assessing memory it is important to consider the context in which the memory returns (for example were there any suggestive techniques used?).  It is also important to consider the individual’s tendency for suggestibility or disassociation.   The age of the complainant as well as the nature of the abuse are both factors that affect memory.  Alcohol and drug use can also impair memory.  

In the third case4, the Ontario Court of Appeal overturned a decision acquitting a defendant accused of sexual assault based on myths about complainants.  In this case the complainant was between the ages of 11 and 14 when her mother’s boyfriend sexually abused her.  The trial judge said that her “interest in sex” reduced her credibility as a witness.  The appeal court said evidence of prior sexual activity is never admissible to support the twin myths that the complainant  is less worth of belief or more likely to have consented.  In any event, consent of a child is irrelevant and legally impossible.

It is obviously concerning that we are still seeing these problems almost three decades after Seaboyer was decided.  Perhaps the answer lies in more resources to allow for expert evidence in sexual assault cases (to educate judges on a case by case basis) or, as some suggest, the answer lies in more training for judges once they are appointed.  One way or another this has to change.

[1] [1991] 2 SCR 577 where the SCC addressed the “twin myths” that prior sexual activity demonstrated a woman was more likely to consent to sexual activity and less worthy of belief.

[2] R. v. Lacombe, 2019 ONCA 938

[3] A.B. v. Joe Singer Shoes Limited, 2018 HRTO 107 (CanLII)

[4] R. v. L.M., 2019 ONCA 945

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