The trial judge relied on the victim stereotype to acquit NL’s grandfather. of sexual assault, according to the rules of the court of appeal


A rural Newfoundland man acquitted of sex crimes against his granddaughter will face a second trial, after the Crown successfully argued on appeal that the trial judge relied on stereotypical reasoning about how the child should have reacted.

The man cannot be named due to a publication ban protecting the identity of the child, who was aged between seven and 10 at the time of the alleged offences.

The trial judge had described the young complainant as particularly credible and said her testimony had led him to “strongly suspect” that the defendant had engaged in inappropriate sexual contact with her. However, the judge acquitted the defendant, noting that the child told his grandfather’s police, “I’m happy when I see him.”, which contradicted the testimony. He concluded that the child’s relationship with the defendant had been “strong and normal”. “

The trial judge expressed concern that the complainant overheard discussions among her family members before speaking to social workers, that the evidence of what happened consisted of “general allegations and many responses indicating that she did not remember”. The fact that she was unable to remember many details was not necessarily problematic in itself, given her age, the judge said, but left him uncertain as to what had happened given of all the evidence presented.

“I want to stress that a not guilty verdict does not mean that nothing inappropriate happened; instead, it simply means that I am not satisfied beyond a reasonable doubt of the defendant’s guilt on these counts,” he said.

While the Crown argued on appeal that the judge relied on stereotypical reasoning, the defense argued that their doubts were based on inconsistencies in the evidence. Justice Lois Hoegg and Justice Gillian Butler of the Newfoundland and Labrador Court of Appeal agreed with the Crown.

“I want to stress that a not guilty verdict does not mean that nothing inappropriate happened; instead, it simply means that I am not satisfied beyond a reasonable doubt of the defendant’s guilt on these counts.”

— trial judge

The trial judge’s finding that the child’s relationship with his grandfather was strong and normal and therefore not abusive was based on impermissible stereotypical reasoning, Hoegg wrote in the Jan. 7 decision, released this week.

Whether the relationship was strong and normal was not the issue for the trial judge to decide, Hoegg wrote.

“The (trial) judge’s introduction of the strength and normality of (the complainant’s) relationship with her grandfather as a step in her analysis of whether (the accused) committed the alleged offenses is confused and divisive. It has no place in determining whether alleged sexual abuse took place,” she said, adding that the idea that a victim cannot be happy to see their abuser if they are abused by him is a stereotype that does not recognize that a victim can deliberately act normal. around their attacker out of embarrassment, guilt, denial or to not alert others.

The reliance on stereotyping to assess a complainant’s credibility is of particular concern when a family relationship is involved and the complainant is a child, Hoegg wrote.

“Victims, young and old, may experience confusion and conflict between their feelings of discomfort with the violence and dislike of their abusers and their feelings of love and trust for their abusers,” he said. she declared.

Representing the majority decision, Hoegg ordered the man’s acquittal set aside and a new trial.

Judge Charles White disagreed with his colleagues, concluding that the trial judge’s assessment of the child’s credibility was not based on expected stereotypical behavior, but on a proper consideration of the evidence, which included inconsistencies and contradictions. The complainant’s testimony about her relationship with the defendant contradicts her statement to police and other evidence, White wrote.

“(The trial judge) did not rely on any myths or stereotypes about sexual assault when assessing the credibility of the complainant in this case,” the judge said, concluding that the defendant had been acquitted because the Crown had failed to prove the offenses beyond a reasonable doubt. .


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