I’m here today to talk to you about a very important topic involving sexual assault trials. In Canada, in the past, in a rape trial, a sexual assault trial, the tactics of the defense counsel were much different than they are today. For example, if an alleged victim was, say, in a bedroom and they didn’t put up a huge hue and cry and try and fight off the aggressor, the person who’s charged with assault, defense counsel would attack that, say “look he should have said no, you should have done this, why didn’t you cry out. There’s other people in the at the party, you didn’t do this and that.” That has been debunked – quite properly so I might add, I agree with that – by the Supreme Court of Canada as a rape myth. Victims act differently. Some people freeze, some people do put up a hue and cry but we have to look at each individual victim and that’s very important and so that tactic from 34 years ago is just not proper in Canadian law anymore. Secondly, after the attack, some people think a victim should act a certain way: have a crying demeanor, come out of the party be all upset. No, everyone reacts differently, everyone has a different demeanor. That rape myth is debunked as well and the other thing is on delayed disclosure so for example, someone is raped on day one and doesn’t report it for ten years, studies have shown that that’s conduct that many people do. They’re not ready to go forward. Those are called rape myths and stereotypes. Judges in Canada follow them quite properly so now and a jury is told about them as well. The problem becomes as a defense counsel, at what point does a rape myth and stereotype actually become conduct that’s not proper that you would expect the person should react in a certain way. Let me give you an example, let’s say a person is raped but continues dating the person, there’s an example. Let’s say a person’s raped but then socializes normally with the person for the rest of the night and in a friendly manner goes into a pool with them. These are topics which the courts are struggling with currently in Canada and as defense council you have to be very careful how you approach this in a courtroom. In that situation where you have a person who reacts, you know, doesn’t freezes up who might socialize normally later and might not report it for a number of years and you have evidence of that you might not want to elect judge alone because the judge alone is gonna completely follow the rape mess but what’s a jury gonna do with the pool situation, for example, at least as defense counsel your [need to] apply your common sense; you can’t make a negative comment about rape myths and stereotypes but where does the line cross. I believe that there are rapists and stereotypes – there’s no question that Supreme Court of Canada is right – but have we gone too far, is the issue and certainly judges are struggling with this topic, juries are struggling with this topic. I just completed a recent sexual assault trial involving a rape and there was some of these myths going on and, and a lot of friendly interaction between the alleged victim and my client later. I’m not allowed to say this to the jury about rape myths and say “hey she should have reacted differently but what I am allowed to say is look you need to apply your common sense to all of the evidence”
and [similarly] if the judge expresses an opinion to the jury of guilt they’re entitled to ignore the judge as well they have to follow the law. The judge’s gonna tell them about rape myths and stereotypes but they still need to apply their common sense but in the average case where someone just freezes or someone is not reacting negatively at a party after being raped or someone doesn’t disclose it there’s no question those are rape myths and stereotypes and you can’t touch on those topics at all. But that the issue which defense counsel are going to struggle with is what about the outlier situation where the person continues dating or very much has extremely friendly conduct with the person later. It’s a struggle to know what to do with this right now and I think we need perhaps more guidance in certain factual situations in Canada and I know every defense lawyer who restricts their practice to criminal law is really attuned to this particular situation and if your case falls in here we really need to deal with this carefully but the bottom line is we need to develop other strategies to win and those strategies focus on credibility and reliability of the complainant showing she’s not believable for other reasons other than rape myths and stereotypes and and that she’s not accurate. Part of that is preparing you to testify properly and create a reasonable doubt. Any defense lawyer in Canada who’s still focused on these rapists and stereotypes are not valid. That’s not the right strategy. Develop other strategies, if you come to our law firm, we’re gonna do the right thing, be ethical lawyers and not buy into the rape myth and stereotype [in accordance with what] the Supreme Court of Canada has set up for us.