Trial judge overruled in sex assault acquittal

TORON TO • An acquittal in a sexual assault case was tossed aside on Wednesday and a new trial ordered because the trial judge had relied on myths of how victims should behave.

In ordering a new trial, the Court of Appeal found the reliance on discredited stereotypes by Superior Court Justice Alissa Mitchell amounted to legal error.

Normally, appeal courts will not weigh in on a trial judge’s credibility findings unless they are based on legal error. In this case, the Appeal Court found reason to second-guess the judge’s findings.

“Reliance upon stereotypical views about how victims of sexual assault would behave is an error of law,” the court said.

The case turned on the credibility of the complainant and that of her brotherin-law, who can only be identified as A.B.A.

Court records show the woman accused A.B.A., who was separated at the time from his wife, of rape and forcing oral sex on her at her apartment multiple times over the course of a day that also included going out together for food, drinking beer and consuming cocaine. She alleged he again sexually assaulted her several times five days later at her sister’s place.

A.B.A. insisted all the sexual activity was consensual.

At trial in London, Ont., the woman testified she was terrified of her brotherin-law. She said she fought back on some occasions but submitted to the alleged assaults because she was afraid of him.

Mitchell, adopting what she called a “common sense” approach, found the woman had failed to flee or call for help and had continued to associate with the man after the alleged assaults. That conduct, the judge found, undermined her credibility.

“She is either scared to fight back and tell him to stop — or not,” Mitchell said in her judgment. “The fact she behaved inconsistently in this regard weakens her credibility.”

In April 2018, Mitchell acquitted A.B.A.

On appeal, the prosecution argued the judge’s reliance on myths or generalized assumptions about how sexual assault victims are expected to behave amounted to legal error.

A.B.A. countered that Mitchell had deemed him a credible witness, and had accepted his view the sex was consensual. As such, he argued, that was enough for an acquittal — regardless of the judge’s view of the complainant’s credibility.

The Appeal Court, however, disagreed.

“Inherent in this approach is a comparison of the complainant’s behaviour to what (Mitchell) viewed was ‘appropriate’ behaviour that (she) would have expected of an adult threatened with a sexual assault or a victim of sexual assault,” the Appeal Court ruled.

“The issue here was not what steps the complainant should have taken to protect herself but, rather, whether she consented to sexual activity.”

In its decision, the Appeal Court noted the prosecution didn’t need to prove the verdict would have been different absent Mitchell’s errors but that the errors had a material bearing on the acquittal.

The higher court agreed Mi t c h e l l had acquitted A.B.A. because she believed his evidence. But it also found her assessment of the women’s credibility played a key role given her explanation that she did not believe the complainant based on stereotypical views of victims.