Stereotypes and rape myths about “real” victim responses continue to undermine fairness in the criminal-justice system. In an important decision concerning musician Jacob Hoggard, the Ontario Court of Appeal has taken a step backward, making impartial processing of sexual-assault cases more difficult.
How did it do this? In August, the court asserted that criminal trials don’t need expert evidence explaining the neurobiology of trauma. It argued that judges and jurors already share “common ground” recognizing that “myth-based reasoning should be eradicated.”
The question is: how should it be eradicated? The court acknowledged the question but gave the wrong answer.
Hoggard is the disgraced former lead singer from the Canadian rock band Hedley. He was just acquitted of sexually assaulting and choking a young woman in Northeastern Ontario. He is also facing a civil suit from a sexual-assault victim.
But the case in which the court has stepped backward is his 2022 conviction in Toronto of sexual assault causing bodily harm for which he was sentenced to five years. He began serving his time this past August the day he lost his appeal of that conviction.
Justice Benotto denied his appeal, writing for a unanimous bench of the Court of Appeal. But the kicker was when Benotto opined that the trial judge had erred in admitting expert evidence on trauma.
Hoggard is appealing to the Supreme Court of Canada.
Unless this backtracking decision is overturned, it slams the door shut on expert evidence on the neuroscience of trauma in sexual assault trials in Ontario. It undermines an effective education strategy necessary to help judges and juries avoid relying on the stereotypical thinking that defence lawyers love to use in attacking victim credibility in sexual-assault trials.
Counter-intuitive victim responses
In the Toronto trial, the young complainant, J.B., described Hoggart as forcibly penetrating her body in multiple ways, causing her to bleed, spitting on and slapping her, and calling her a “dirty little pig.” In the Northeastern Ontario trial, a woman similarly described Hoggard as forcibly penetrating her, urinating on her and calling her a “dirty pig.”
J.B. did not flee the hotel room at the first opportunity. She described feeling frightened by what Hoggard did to her and too disoriented to leave right away.
Freezing and delayed decision-making are extremely common for sexual-assault victims. This so-called “failure to resist” is often misinterpreted as consenting.
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One of the most deeply, widely held mistaken beliefs about sexual assault is that “real” victims immediately cry out, fight back, seek help or escape. But typically this is exactly what does NOT happen when sexual assault occurs in a relational, intimate context.
On top of the problematic stereotype of the “ideal victim,” too many people cling to a distorted image of what a “real” sexual assault involves, imagining a sudden, physical attack coming out of the blue.
That is categorically not how the vast majority of sexual assaults in intimate or relationship contexts take place. Many sexual assaults involve initial consensual contact but what happens next, including forced penetration, is without consent.
J.B. did leave the hotel room eventually. But when Hoggard texted her the next day and acted as if he had not assaulted her, J.B. replied: “you raped me.”
The legal problem
The Court of Appeal’s unanimous judgment found no substantial wrong or miscarriage of justice. It rejected all of Hoggard’s defence counsel’s grounds for appeal.
This endorses the careful and impartial way the trial judge conducted the lengthy and complex criminal proceedings. Avoiding a retrial is also extraordinarily important for J.B. because criminal trials are typically hostile, even traumatic encounters for sexual-assault victims.
Hoggard’s conviction stands, which is a win for the Crown. But some important ground has been lost.
The judges of the Court of Appeal seem to want it both ways: they explicitly recognize that rape myths, stereotypes and gaps in understanding persist and continue, in the words of Justice Benotto, to “infect” too many sexual-assault trials.
Yet the same appellate court ruled that legal decision-makers do not need education on trauma and its impacts to refute rape myths, challenge discriminatory attitudes and address gaps in understanding victim responses.
These two findings are deeply at odds.
The Court of Appeal’s answer is that judges need only to issue a good jury instruction to caution “against stereotypical reasoning.”
If it were that simple, we’d be much farther along the road to equality and justice.
Cognitive instructions and judicial reminders are simply insufficient to excavate deeply held discriminatory beliefs. A stream of badly decided sexual assault cases get overturned on appeal because of myths and stereotypes, demonstrating the gap between theory and practice in the criminal-justice system. The Court of Appeal itself has pointed this out.
The deep grip of rape myths and stereotypes
It is naïve at best, therefore, to assume that well-instructed jurors in sexual assault trials won’t let rape myths influence decision-making, consciously or not. At worst, it fails to grasp the underlying reasons rape myths and stereotypes about have such a deep grip on how society thinks about victim responses to sexual assault.
Finally, it evades the adequacy of judicial knowledge on the complexity of victim responses by erroneously assuming that the bench is already sufficiently up to speed on understanding the neurobiology of trauma.
An explanation of why rape myths persist is sorely needed along with effective strategies for dismantling them. What functions do rape myths serve and how do stereotypes about how “real” victims of sexual assault respond reveal gaps in understanding?
Rape myths and sexism still cloud police responses to sexualized violence
Decades of research demonstrates that in the midst of a threatening, fear-inducing or overwhelming experience such as a sexual assault, the brain’s fear circuitry takes over. In a nutshell, under stress and threat, the capacities of the brain’s pre-frontal cortex region – where rational decision-making takes place – become temporarily undermined.
The complex hormonal and physiological changes that rapidly take over when humans are threatened are not adequately understood by those in the legal profession let alone the general public. Yet this science helps to explain many rape victims’ extraordinarily common reactions of freezing, passivity and accommodation in the face of unwanted sex and sexual violation.
A basic understanding of traumatic responses, and the essential scientific knowledge that explains these responses, provides an explanation of why rape myths are just that – myths – and why they are wrong and prohibited in rape trials.
This is what being trauma-informed requires.
Furthermore, this is exactly the kind of information needed in the criminal-justice system to “come to grips with just how deep-rooted” myths, stereotypes, and sexual violence against women “truly are and just how devastating their consequences can be,” as the Supreme Court recently advised Canadians.
A missed opportunity
The Court of Appeal raised legitimate concerns about cost and time constraints surrounding expert evidence in criminal trials. Expert evidence is clearly not required in most cases. Sexual assault cases, however, are unique. They are acutely vulnerable to stereotypical, myth-based reasoning, as the Supreme Court repeatedly reminds us.
To get to the place where judicial notice is easily taken of traumatic impacts to make sense of victim responses, the Crown proffered expert evidence in this high-profile sexual assault case. The legal strategy aimed to facilitate impartial and fair decision-making on the facts – exactly the point of contention vigorously fought by the defence.
In finding that expert evidence on the neurobiology of traumatic responses was not necessary, the Court of Appeal missed an important opportunity to assist legal decision-makers, level the playing field, and enhance fairness and impartiality in sexual-assault trials in Ontario. We can only hope that the Supreme Court of Canada seizes the opportunity to undertake a much-needed course correction.