I’m so glad you could join me today I’m here to talk about an interesting topic, which is actually helping victims of sexual assault. Because this has been movement in Canadian law in recent years to get rid of what I call myths and stereotypes in sexual crimes or sexual assault.
This is sometimes referred to as rape myths and stereotypes that that’s a phrase that’s often used and what does that mean? Well, I think these are misconceptions about how a victim of sexual assault is to react to the situation.
There’s no place in Canadian law for that the courts have ruled that’s gotten right up to the Supreme Court of Canada and there’s a case called Barton that went right up to the high levels of court and its set the tone, the Supreme Court of Canada has set the tone to say well no no, there’s no place for myths and stereotypes in Canadian law, we have to caution judges and juries against it. So let me give you an example. So maybe a lot of people intuitively might think well how should a victim of rape or sexual assault act they should say, or they should strongly resist and say no and fight back and yell? Well, no, that’s not necessarily the case. Studies have shown that that’s not the case at all. Some people might do that.
Everyone reacts differently, or after the alleged rape, they should be in tears and go cry rape to everyone around, no a lot of people will go into a shell or not say anything or even act differently after it or they should report it to the police right away.
Well, some victims don’t report for years and as an example so it’s, you know, there’s demeanor issues the way a person should appear during the rape or after, this has no bearing in the Canadian courts, studies have shown that that everyone reacts differently. Hey, maybe a majority of people are going to be yelling who knows but a lot are and the studies have consistently shown.
The Supreme Court of Canada has cautioned judges that these myths have no place in the Canadian court room. So as defense counsel, I got to be very careful when I cross examined because if it’s not part of the evidence, for example, you know, if the person is not crying an hour later, I can’t start cross examining you weren’t crying. I can’t start cross examining that you weren’t screaming out the bedroom, there’s other people in the next room, why didn’t you cry out?
In past years defense counsel 10, 20, 30 years ago, defense counsel would use all these myths and stereotypes to win cases and it has no place anymore, so you have to be very cautious.
A judge is going to charge the jury looking don’t come with any preconceived notions or bias here, every victim reacts differently. And if it came out in evidence that the person was crying later, they got to caution the jury, well that’s not necessarily disproving that they’re sexually assaulted if they didn’t have a demeanor, and let me give an example of cases I’ve seen.
So let’s say a person has been sexually assault, assaulted, and 20 minutes later, they’re in a hot tub with the perpetrator and they’re smiling and laughing and talking and engaging with them well, under our law with rape myths and stereotypes, a jury would have to be told that that’s not really evidence that it didn’t happen.
So so that’s another myth and stereotype that studies have shown so everyone reacts differently a person can be in shock, etc, etc. So it’s very important, as defense counsel, judges, and Crown Counsel.
We all have to understand these issues very well and work within the confines of the rules of evidence, and as a defence lawyer I’m always Ultra cautious of these issues and you know, know the law obviously very well so I don’t extend beyond the bounds.
Now there are situations where a victim can open up the door to introducing one of the so called myths because it’s not a myth anymore. She might say for example, oh, I was extremely upset. 10 minutes later and crying and yet for example, I have a video of her doing something opposite. That’s a totally different issue. But I’ve had many cases like that where it would have been a myth or stereotype, but the alleged victim opened up the door and obviously we won the case. They were credible for that, this has happened to me in several cases over the last several years.
Where they opened the door, that I can actually use positive evidence that ordinarily would have been a myth or stereotype. So, you know, judges and juries, they can’t come to court with preconceived notions and studies back this up, I’m agreeing that these are valid, myths and serotypes that we’ve been using in past decades, irresponsibly, and wrongly. And I’m really glad they cleaned this up the court system because it creates a fair trial for victims who have been vilified, sexual assault victims for years. We still have the presumption of innocence and proved beyond a reasonable doubt. And those are fundamental guarantees which are still going to ensure a fair trial and I’m glad we’ve got rid of rape myths and stereotypes in our criminal justice system.
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