Penalty for sex assault accuser challenged

WELLAND — The lawyer for a woman ordered to pay nearly $24,000 to the man she accused of sexual assault has asked for the small claims court case to be thrown out, arguing the decision was based on “inappropriate sexual stereotypes” about a how a real victim behaves.

Lawyer Jonathan Collings argued in a Welland courtroom Friday that Deputy Judge David Black made legal errors in his Sept. 27, 2016 decision, which advocates warn could have a chilling effect on the reporting of sexual assaults.

“Deputy Judge Black’s decision was based almost solely on (the woman’s) credibility,” he said, later adding, “I want a dismissal.”

The Spectator is not naming the parties involved in the case.

In his decision, Black found the woman lied to police and was seeking “retribution” out of jealousy because she believed the man, her exboyfriend, had cheated on her.

“I am satisfied that the evidence indicates that (the woman) lied to police knowing that a criminal prosecution against (the ex-boyfriend) would likely follow,” Black wrote, pointing to inconsistencies in her story and behaviour after the alleged assault.

Niagara Regional Police charged the man with sexual assault, but that charge was withdrawn.

The man, who represented himself at the civil hearing, told the court his life has been ruined by this case and argued Black’s ruling was fair. “When I think about this, the nightmare just keeps going and going,” he said, later adding he feels like he’s living in a “fog.” He says the sex was consensual.

Collings pointed to several passages of Black’s decision where he relied on texts and emails sent from the woman to the man following the alleged sexual assault at his residence in March 2011.

Black ruled these messages appear to indicate she “felt positively about the encounter.”

However, sexual assault survivor advocates say it’s common for victims to maintain contact and even try to smooth things over with their attackers, especially if they knew each other before the assault.

Suzanne Mason, public education co-ordinator for the Niagara Sexual Assault Centre, was at part of the hearing to show support.

“This case was of interest to us because ... the complainant is now facing substantial financial consequences as a result of reporting the alleged incident to the police,” she said, adding the justice system often fails victims.

If the decision stands, Mason worries it will discourage more victims from reporting sexual assaults — only about 5 per cent of victims come forward, with many citing a lack of faith in the justice system as reason for staying silent.

“The large financial penalty facing the complainant in this lawsuit could set a precedent and deter others from coming forward for fear of similar consequences.”

During the hearing, Collings also argued the deputy judge made a legal error in ruling that the woman was motivated by malice, arguing it didn’t meet the legal bar.

It’s admitted that the woman was upset with her ex over perceived infidelity. However, Collings said that’s not enough to prove that was motive to falsely accuse him.

“He has to prove that the predominant motive was to discredit him ... you have to distinguish passion from motive.”

Ontario Superior Court Justice James Ramsay said that if it’s proven the deputy judge based his decision on “sexual stereotypes,” that would be a legal error.

He also noted “we don’t want to discourage people from going to the police.”

His written judgment is expected next week.