Supreme Court rules judge used vic­tim myths in sex­ual-as­sault case

The Globe and Mail (Prairie Edition) - - NEWS - JUS­TICE WRITER SEAN FINE

A judge who ac­quit­ted a man of sex­u­ally abus­ing his step­daugh­ter over a six-year pe­riod be­cause the girl did not avoid be­ing in his pres­ence ap­plied a dis­cred­ited stereo­type about how vic­tims be­have, the Supreme Court has ruled.

The court re­leased a brief writ­ten de­ci­sion on Wed­nes­day after is­su­ing an oral rul­ing from the bench dur­ing a hear­ing last Fri­day. A teenage girl had tes­ti­fied that, when she was be­tween the ages of 11 and 16, her step­fa­ther touched her sex­u­ally about 50 times and sim­u­lated a sex act once. But Jus­tice Terry Clack­son of the Al­berta Court of Queen’s Bench ruled in 2016 that, based on “logic and com­mon sense,” he would have ex­pected the girl to avoid the per­pe­tra­tor and there was no ev­i­dence she had done so. The Al­berta Court of Ap­peal over­turned that rul­ing in a 2-1 de­ci­sion last year, say­ing Jus­tice Clack­son had em­ployed myths and stereo­types about vic­tims. In a 7-0 rul­ing writ­ten by Chief Jus­tice Richard Wag­ner, the Supreme Court said it agreed with the two ap­peal court judges and that a new trial should be held.

“In con­sid­er­ing the lack of ev­i­dence of the com­plainant’s avoid­ance of the ap­pel­lant,” Chief Jus­tice Wag­ner wrote, “the trial judge com­mit­ted the very er­ror he had ear­lier in his rea­sons in­structed him­self against: he judged the com­plainant’s cred­i­bil­ity based solely on the cor­re­spon­dence be­tween her be­hav­iour and the ex­pected be­hav­iour of the stereo­typ­i­cal vic­tim of sex­ual as­sault.”

Although trial judges are en­ti­tled to def­er­ence on their find­ings of fact, Chief Jus­tice Wag­ner said the stereo­typ­ing was “an er­ror of law.”

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