Educate judges

When Robin Camp, in his former capacity as a federal court judge, asked a woman why she couldn’t just keep her “knees together” to prevent an alleged rape, he contributed to the widely held view that the justice system is incapable of sensitively or effectively dealing with sexual assault cases.

This impression is often cited as among the chief reasons for the chronic under-reporting of sexual assaults in Canada, around 90 per cent of which are never brought to police. A 2014 survey by the Department of Justice found lack of trust in the justice system was the second-most common reason, next to shame, for choosing not to come forward.

Now two politicians have proposed welcome private member’s bills aimed at rebuilding that trust. If passed, they would ensure that federal and provincial judges are given complete and comprehensive training in the law of sexual assault, including in how rape myths are sometimes used to subvert justice.

Both interim Conservative Leader Rona Ambrose’s federal bill, introduced in February, and Liberal MPP Cristina Martins’ bill, set to be tabled this week at Queen’s Park, should receive all-party support.

It’s no wonder victims’ trust in the system continues to lag. Of the 10 per cent of sexual assaults that are reported, only 43 per cent result in charges, and only 43 per cent of those in convictions. That represents the lowest conviction rate for any type of violent crime by far.

Part of the problem is judges like Camp, who seem to buy into the stereotypes and myths around sexual assault complainants. Another recent high-profile example was the acquittal of a taxi driver charged with sexually assaulting a woman who was so drunk she had urinated and passed out in the back of his cab.

In that case, Halifax Judge Gregory Lenehan acknowledged that, under Canadian law, someone “who is unconscious or is so intoxicated . . . as to be incapable of understanding or perceiving the situation that presents itself” cannot provide consent. He then offered this dubious addendum: “This does not mean, however, that an intoxicated person cannot give consent to sexual activity. Clearly, a drunk can consent.”

Lenehan’s verdict, which is being appealed, should not come as a surprise. Studies indicate the most difficult cases to prosecute are those in which victims’ claims aren’t found to be credible because of how they dressed, their earlier willing sexual involvement with the accused, the fact they had been drinking or that they went back to the accused’s home.

That is why it is so imperative that before being appointed to the bench, all lawyers be educated on the rapidly evolving understanding of the meaning of consent and on the rape myths that have so often been used to deny victims justice.

The bills put forward by Ambrose and Martins will go a long way to help accomplish this. They should be passed.

Two bills call for training on sexual-assault law and rape myths for lawyers who want to be judges