RETRIAL FOR FATHER ACQUITTED OF ABUSE

Judge relied on ‘discredited myths’ in ruling

An Alberta man who was cleared of sexually abusing three children — his biological daughter and two step-daughters — is to be retried on the same charges because the trial judge wrongly assumed the girls probably would have told someone immediately, rather than keep it secret for years.

Mr. Justice Keith Yamauchi “relied on discredited myths and stereotypes about the disclosure of sexual abuse, particularly by children,” according to Crown arguments accepted by the Court of Appeal of Alberta in a new ruling.

Given the sheer number of alleged sexual assaults over about five years, “one would have thought that any one of the complainants might have mentioned the incidents to someone in passing,” Yamauchi wrote in his overturned decision.

In essence, he doubted them because they delayed reporting, so the law says the acquittal must be quashed and sent for a do-over.

The accused man, who cannot be identified to protect the girls, ran a peat moss business on a ranch near Cochrane, Alta. In 2001, he began a relationship with a woman who soon moved in with her two daughters, then aged 6 and 7. His own daughter lived elsewhere, but stayed over on weekends. The relationship ended in 2003, but because it produced a baby boy, the man stayed in frequent contact with the woman and her daughters.

The allegations are of repeated sexual violations spanning the period in which the girls were all between about five and 10 years old, occurring in a tractor, a delivery truck, a home under renovation, and in their own beds. They came to light in 2010, when the stepdaughters discussed it privately, then told their biological father, then the police, in separate statements. They were by this point teenagers.

The following May, the older one gave a more detailed statement to police, saying she had left out embarrassing details. The accused man’s biological daughter went to police five months later, alleging he groped her in her bed at age five.

At trial in 2013 in Calgary, the man, known as ADG, denied everything, and Yamauchi, sitting without a jury, decided there was reasonable doubt about his guilt, in part because of the time lapse from alleged crime to complaint.

“None of (the girls) testified that the accused threatened them if they said anything. Nor did any of them testify that the accused said not to tell anyone,” Yamauchi wrote. “If they thought this was a game (or playing), or if they were confused, or if they were uncomfortable, one would have thought they might have mentioned this to their mothers or some other caregiver.”

In law this is known as the doctrine of “recent complaint,” and while it once held sway, it has long been rejected because it means victims who do not disclose immediately are unfairly doubted when they eventually do.

Yamauchi was aware of this. In his reasons, he cited the main precedent on these issues and during trial he said the problem “troubled” him and “preyed on (his) mind.” In the evidence, he had not seen “any reason, compelling or otherwise, as to why these young ladies didn’t raise this issue at all with anyone. And I mean I can speculate as to why. But it’s curious to me.”

The Court of Appeal was sympathetic to his difficult decision. The law is clear a judge cannot assume delayed complainants are lying, but “this does not mean that no consideration whatsoever can be given to the timing of the disclosure of abuse,” their new ruling states.

The key is that a judge should make no assumptions about how victims are supposed to behave and should not evaluate their credibility by comparing them to “a hypothetical ‘objectively reasonable’ victim,” the appeal court ruled.

As the Supreme Court of Canada has put it, sex abuse cases should be decided “without resort to folk tales about how abuse victims are expected by people who have never suffered abuse to react to the trauma.”

The appeal court also ruled the judge placed too much weight on the complainants’ inaccurate recollection of specific details, such as timing and location, despite his accurately describing the law on this. The law acknowledges children experience the world differently and often do not pay attention to the same things as adults. They can be confused if asked to be specific and so flaws in the testimony of children should not be given the same legal effect as those by adults.

This rule still applies even though the complainants were young adults at the time of trial, being asked to recall childhood memories.