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Interest in sex does not affect a complainant’s credibility in a sexual-assault trial, Ontario Appeals Court rules

Globe and Mail with Elizabeth Sheehy 2 December 2019

 

A complainant’s interest in sex should not affect her credibility as a witness in a sexual-assault trial, Ontario’s highest court says.

It was the second time in less than a week the Ontario Court of Appeal has singled out judges for falling back on what it described as myths about sexual-assault complainants. The earlier case involved a judge who found that the way a woman dresses may indicate consent.

The complainant in the new case was between 11 and 14 when she alleges her mother’s boyfriend sexually abused her four times. She had only recently returned to her mother from three years of foster care when the first alleged incident occurred. She disclosed the alleged incidents 2 1/2 years after the final one.

Last year, Ontario Superior Court Justice Gary Tranmer acquitted the man, identified by his initials, L.M., saying the Crown had not proven its case beyond a reasonable doubt. The appeal court threw out the acquittal on Monday, partly because Justice Tranmer was concerned, it said, that the complainant’s interest in sex reduced her credibility as a witness.

In a section of his ruling in which he listed concerns with the complainant’s credibility, Justice Tranmer wrote, under the heading “Interest in Sex: On her evidence, she has an interest in sex. She volunteered that she was taking sex education in school. She commented positively on [another individual’s] statement as to size. … She volunteered that an average boy’s penis is five and a half inches in explaining how the oral sex … could have occurred.”

The appeal court said unanimously that it is a legal error to connect credibility to an interest in sex.

“Evidence of a complainant’s prior sexual activity is never admissible to support the twin myths that the complainant is less worthy of belief or more likely to have consented to the activity,” Justice Mary Lou Benotto wrote, supported by Justice David Brown and Justice David Paciocco.

“Consent of a child is irrelevant and, in these circumstances, impossible at law. Yet, the trial judge considered this evidence in reference to her credibility.”

Justice Benotto added that other underlined headings that dealt with credibility were far from neutral. They included “Lies” and “Motivated by Money.”

The “twin myths” were set out by the Supreme Court in a 1991 case known as Seaboyer. In last week’s case, in which a male resident of a home for people with disabilities was accused of sexually assaulting a female resident on consecutive nights, a judge had acquitted the man, while saying the woman’s attire was “significant.” The appeal court ordered a new trial in that case, too.

Lawyer Maija Martin, who represented L.M., said Justice Tranmer had not, in her view, made the error that the appeal court criticized him for.

“He doesn’t specifically say ‘I do not believe her because of her interest in sex,’” Ms. Martin said in an interview.

The accused man had acknowledged in a statement to police engaging in oral sex and penetration with the complainant, but denied the allegations during his trial. The appeal court said the judge engaged in faulty reasoning and failed to reconcile the evidence with the conclusion he reached in the case.

Elizabeth Sheehy, a professor emeritus at the University of Ottawa’s law school, said in an e-mail that the case demonstrates “that judges continue to struggle to apply the law of sexual assault on so many levels,” including using the complainant’s sexual history despite Criminal Code provisions that “constrain resort to such prejudicial and irrelevant evidence.”

She said he found reasonable doubt “where his own review of the accused’s statements to police concluded that they amounted to a confession to criminal sexual acts.”

She said the country needs closer screening of judicial appointments and improved training of judges in sexual-assault law. She added that the case is all the more distressing because it will require “a young and vulnerable complainant to testify for a second time against a man who stood in the place of a stepfather.”

Elizabeth Sheehy is a law professor at the University of Ottawa.