N.L. judge relied on rape myths to acquit teenager, appeal court says

Warning: the following article contains descriptions of sexual assault.

The Newfoundland and Labrador Court of Appeal has ordered a new trial for a teenage boy accused of sexually assaulting a 15-year-old girl, concluding that the trial judge relied on rape myths in her decision to acquit him.

The appeal decision, published last month, said the provincial court judge made errors in law when she relied on three sex assault myths to find the boy not guilty.

Those myths that silence is consent, that a woman can prevent a rape if she really wants to, and that a woman may seek revenge on past lovers by falsely accusing them aren't permissible when reaching a decision, the appeal court wrote.

According to both testimonies during the provincial court trial last year, the two teenagers had been driving together when the 15-year-old girl asked the accused, who was 17 at the time, if he wanted to visit her house and meet her new kitten.

She said he pressured her to go to her brother's room to find a condom, and when she refused, he held her down, took off her pants and sexually assaulted her, ignoring her protests.

"I was trying to fight him the whole time but I couldn't because when I did he pushed me back on the bed," the complainant testified last year. "I told him to stop, and no, [that] I didn't want this, and he didn't [stop]."

The 15-year-old also testified she lay in bed afterward for at least 10 minutes, "unable to move and crying uncontrollably."

A friend of the complainant testified she appeared to be distraught and in shock immediately after the alleged assault, saying that she "was terrified shaky and not very responsive, and was zoning in and out."

The defendant testified the complainant appeared to consent to their activity at all times, and was not upset when she showed him to the door after they had sex.

"Just after we had started having sex, I asked her if she wanted to stop, and she said no, to keep going," he testified.

The trial judge said if the complainant had been telling the truth, she could have simply left the house when the boy asked her to find a condom, and also suggested she may have been upset due to the "thoughtless and callous manner" the boy left her house.

"[The complainant] did not take the opportunity to leave the situation when she says it was offered to her. There is no plausible explanation as to why she just did not leave the house and seek help," the trial judge said.

"The impermissible myth a woman can prevent a rape if she really wants to was part of the judge's foundation in rejecting this testimony from the complainant," the appeal decision said.

Mandatory training one solution

Kevin O'Shea, executive director of the Public Legal Information Association of N.L., says the beliefthat someone must act a certain way to prevent rape hasserious consequences when it's introduced to the courtroom.

"Unfortunately there still continues to be myths or assumptions about how a person should behave or should react in those situations," O'Shea said.

"When those assumptions play out in court, they play out in a trial judge's decision like in this case. It can lead to it being assumed that the person lacks credibility, [and] can lead to acquittals, as was the case in this situation."

The successful appeal means the complainant will need to testify once more in a new trial, echoing what happened in aseries of high-profile trials of St. John's police officerDoug Snelgrove, who is now in the process of appealing his conviction and attempting to secure a fourth trial for the same sexual assault case.

In the wake of the Snelgrove trials, critics have calledfor more judicial training on sexual assault for those involved with the legal system, to avoid mistakes that couldretraumatize complainants by forcing them to repeat testimony.

O'Shea agrees, pointing out that such training isn't mandatory for provincial judges.

While federally appointed judges, like those in Supreme Court, are mandated to complete sex assault training, the lower provincial courts don't widely adhere to those standards.

Prince Edward Island is the only province that requires its judges to undergo that training, he says.

"It seems to me that training around some of those myths and stereotypes really needs to be reinforced, and it's not just for judges," he said.

"I think that's something that would be useful for anyone connected to the legal system."

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