“Life teaches that persistence is sometimes rewarded with success.” Declared by the valedictorian in a high school convocation address, this sounds about right. When proclaimed by a judge in a sexual assault case to deal with the fact that a complainant had already expressed “no” when the incident occurred, it’s wrong.

Federal Justice Minister David Lametti has stated that it is essential for judges to “have the awareness, skills and knowledge of sexual assault law to deal with cases in a manner that is fair to the parties and free from myths and stereotypes.” This government’s 2021 amendment to the Judges Act commits judges to participation in seminars on sexual assault training as a criterion of eligibility for appointment to a superior court. In some provinces, applicants for the position of  provincial court judge are also required to promise they will take this type of training if appointed.

Despite efforts to educate judges to set aside rape myths and stereotypes, faulty reasoning in judicial decisions – especially ones that involve intoxication – endures.

An Alberta case from last year provides an example. One of the most common rape myths is that women will eventually consent if men simply continue to press them. It is underpinned by the belief that a woman’s initial refusal often masks a concealed desire for sex. In acquitting an accused of sexual assault in August 2022, Justice Steven Mandziuk appears to have invoked precisely this stereotype.

The case involved a 16-year-old complainant and an 18-year-old man who she had been close friends with. She accused him of sexually assaulting her after a night of drinking in her bedroom together with another friend. She was severely intoxicated. She alleged that shortly after falling asleep she awoke to find the accused touching her. It progressed from there.

A few days before the incident, the accused told the complainant he had developed feelings for her. The complainant told him that she either was not interested in him romantically (her testimony) or wanted to take things slowly because she had just broken up with someone (his testimony).

Justice Mandziuk refused to accept that this would assist in determining whether there was a lack of consent because, according to him, “even if she did not want a romantic relationship with the accused, her rebuff is not necessarily conclusive. Life teaches that persistence is sometimes rewarded with success.”

This statement by the judge was not the only problem with his decision.

At one point during the alleged assault the complainant abruptly left her bed and ran to the bathroom, where another friend found her shaking, crying and screaming, “he raped me.” The complainant got a knife and ran around the house, searching for the accused. When she found him outside by his car she screamed at him, chased him away and used the knife to carve “rapist” in his car and slash his tires.

From this evidence, which he accepted as true, Justice Mandziuk concluded that, “the complainant was upset about the sexual activity with the Accused. However, this reaction is equally consistent with the defence theory of withdrawn consent and regret as with lack of consent.”

This is not a reasonable assumption to make about how women respond to consensual sex they regret. It is not “equally consistent” with the complainant’s account: that she awoke to find her friend initiating a sexual assault, initially froze and, when she made sense of what was happening, reacted with understandable horror and rage.

This part of Justice Mandziuk’s reasoning appears also to be based on discriminatory stereotypes about women. Those include that women often have consensual sex, and then experience post-sex regret and claim rape; and that women, especially ones who cry rape, are irrational, overly emotional and prone to hysteria.

Justice Mandziuk’s conclusion that her reaction was just as likely to be post-sex regret as it was a response to being assaulted is even more problematic given his other findings in the decision. He described the complainant’s testimony about the alleged sexual assault itself as “candid,” “detailed,” “vivid,” “unrehearsed” and “coherent.”

He said she was “[un]wavering” in her assertion that she did not consent to any of the sexual acts and that she did not exaggerate or embellish. Indeed, he did not identify a single issue with the credibility of the complainant’s evidence about the sexual assault.

In contrast, the accused’s evidence was inconsistent. He told the police shortly afterwards: “I was super drunk … I really regret what I did … I feel really bad.” He said: “Everything was going good but I guess I had the wrong idea.”

He repeatedly admitted that he thought she was awake but did not know for sure. He also stated that, “she was really drunk and didn’t know what she was doing.” By trial, the accused’s evidence had changed. He asserted that she was an alert and active participant.

So why did Justice Mandziuk doubt this young woman’s claim that this was non-consensual, despite finding her testimony regarding the alleged sexual assault candid, detailed and vivid and despite the problems with the accused’s evidence?

He said he doubted her because she lied about how much she had drank that night and about whether she had smoked marijuana, as well as because she had downplayed her role in planning the drinking party. These are dishonesties that had nothing to do with whether she consented to sex.

This young woman told the accused she wasn’t interested or wanted to take things slowly. She ran from her bed screaming and chased him away. She told the police promptly. She testified to the sexual assault with detail and clarity. She was consistent and unwavering in her assertion that she did not consent. And still, she was not believed.

A loss of faith in the legal system happens one case at a time. It happens every time a sexual assault complainant is discredited based on discriminatory stereotypes.

Justice Mandziuk’s decision was filled with statements about the unfairness caused when judges rely on rape myths. He noted that when used to assess the credibility of sexual assault complainants in relation to consent, these myths and stereotypes place harsh and unfair burdens on complainants. He even acknowledged that myths and stereotypes can be deeply engrained and that judges may not realize they are relying on these “prejudicial generalizations,” which he referred to as seductive.

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Legislative efforts, such as the amendments to the Judges Act, can be credited with sparking the movement to advance judicial education in this area (although credit should largely go to former Conservative interim leader Rona Ambrose, whose private members bill was responsible for motiving these most recent reforms).

But cases like this one suggest that the type of training and education needed to displace these seemingly intractable myths and stereotypes will not occur through attendance at a seminar on consent, the laws of evidence, systemic racism and social context. Judges are right to say that this work is “properly and exclusively” theirs to perform.

Legislatively mandated seminars could be a good resource, depending on a number of factors. But the tools legal actors need to properly eliminate these problematic and prejudicial generalizations include raising self-awareness, challenging and dislodging one’s social assumptions, recognizing one’s privilege and disparate social locations, life experiences, and status and understanding that every assessment we make is driven by our own subjectivity. Judges, just like the rest of us, have to do this work themselves.

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Elaine Craig
Elaine Craig is the author of Putting Trials on Trial: Sexual Assault and the Failure of the Legal Profession. She is professor of law at the Schulich School of Law at Dalhousie University. Many of her publications are available at: https://works.bepress.com/elaine_craig/
Isis Hatte
Isis Hatte holds an honours bachelor of arts in women’s and gender studies from St. Francis Xavier University. She is in the final year of her juris doctor at the Dalhousie Schulich School of Law. 

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