The Telegram (St. John's)

Crown appeals acquittal in sexual assault case

Judge relied on rape myths, stereotypi­cal assumption­s and speculatio­n, Crown says

- TARA BRADBURY JUSTICE REPORTER tara.bradbury @thetelegra­m.com @tara_bradbury

The Crown has filed an appeal of the verdict in a recent sexual assault case in St. John’s, alleging a provincial court judge relied on rape myths and stereotype­s about sexualviol­ence survivors when she acquitted the accused.

The identities of both the male accused and the female complainan­t are protected by a publicatio­n ban. They were both youths and were known to each other at the time of the alleged assault two years ago.

After a five-day trial in St. John’s, provincial court Judge Lori Marshall found the accused not guilty at the end of May. Last Friday, the Crown’s Special Prosecutio­ns Office filed an appeal of the verdict with the province’s appellate court on the basis of 10 separate errors in law it alleges

Marshall made when acquitathe­m: that the judge had relied on impermissi­ble myths when she found that the complainan­t had likely consented to sexual activity because she had not escaped from her own home when the accused demanded sex and told her to get a condom.

“The trial judge erred in law when she found the complainan­t’s failure to flee her own home caused her to be less credible or worthy of belief on the issue of consent,” the appeal document reads.

All sexual activity without consent is a crime.

The Crown alleges the judge erred in her definition and interpreta­tion of consent; didn’t apply the correct legal principles with respect to the complainan­t’s evidence; erred when she found that the accused had taken reasonable steps to determine the female was consenting to the sexual activity; and erred when she found that the accused would not have proceeded with the activity if the complainan­t had communicat­ed that she did not consent.

The Crown alleges Marshall speculated that a facial expression the complainan­t made during trial, when she was asked if she was silent during the alleged assault, was a nonverbal communicat­ion that clearly meant “possibly, maybe or could be.” The judge speculated again when she found counsel agreed with her interpreta­tion, since no one had asked the female to clarify her response, the Crown states.

“The trial judge then further erred in law by relying on ‘the face’ and her speculatio­n of what it meant in assessing the complainan­t’s credibilit­y and her evidence that she did not consent to the sexual activity in question,” reads the appeal document, signed by Crown attorney Dana Sullivan.

Marshall committed an error in law when she found a complainan­t’s silence or passivity during sexual activity supports the defence of an honest but mistaken belief in consent, the Crown wrote.

Marshall also wrongly relied on myths and stereotype­s of how a victim of sexual assault should act or behave toward an assailant, when she assessed the complainan­t’s credibilit­y, the Crown alleges.

The Crown is asking for the accused’s acquittal to be overturned and a new trial ordered.

Marshall did not file a written version of her decision. Audio recordings of youth proceeding­s in criminal court are not publicly available.

Earlier this year, the Ontario Court of Appeal ordered a new trial for the accused in a similar case, finding the trial judge’s reliance on rape myths in assessing the complainan­t’s credibilit­y — particular­ly when it came to her decision to walk with the accused and go with him into an abandoned trailer — warranted it. The judge’s assessment of the female’s credibilit­y by applying stereotypi­cal views about how victims of sexual assault would behave had been fundamenta­lly flawed, the appellate court determined in that case.

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