Crown appeals acquittal in sexual assault case
Judge relied on rape myths, stereotypical assumptions and speculation, Crown says
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.