When Rape Mythology Invades Judicial Reasons
Justice Robin Camp is the latest example of the pernicious effects of rape mythology in the courtroom. His trial decision in the recent sexual assault case R. v. Wagar is replete with irrational and antiquated notions bereft of moral authority.
The complainant, who was by all accounts incapable of giving consent, testified that she had repeatedly said “no” and that she feared the accused, who was physically much bigger and stronger than her. Homeless, broke, and with nowhere to go, she accepted an invitation to stay at an acquaintance’s house. That is where the accused (allegedly) confined her, forcibly performed oral sex on her, forced her to perform oral sex on him, and forced her to have intercourse several times.
Camp concluded that because the complainant asked her (alleged) assailant if he had a condom, she clearly wanted to have sex with him. Of course, the competing and much more likely inference that she was merely hoping to mitigate the physical harm, did not even ping on Camp’s radar.
He referred to the attack as “misbehaviour” on the part of the accused and suggested that because she was intoxicated, there was an “onus on her to be more careful.” In fact, because intoxication vitiates consent, the heightened onus is on the accused.
Camp mused that it was possible that “a very unhappy thing happened here…two young people made love and somebody came afterwards and poisoned the girl’s mind.” He is oblivious to the fact that sexual assault is about violence, not sex, and is essentially suggesting that women cannot think for themselves. Who would have poisoned her mind, Justice Camp? The feminist cabal? She knew what happened there was wrong and did not need anyone to tell her.
The Crown tried to object several times, but Camp was deeply condescending and combative, even retorting at one point, “I hope you don’t live too long, Ms. Mograbee.”
Camp asked the complainant “why couldn’t you just keep your knees together?” “I don’t know,” she responded in a muted voice. His comments muted not only the complainant’s voice, but will surely mute the voices of many others.
The suggestion that women are able to prevent sexual assault by simply resisting, that lack of resistance can be equated with consent, and that the fault lies with complainants, not perpetrators, completely ignores gender power dynamics and the realities of sexual assault, not to mention basic morality.
Camp concluded with paternal advice to the accused to be “more gentle with women” and not “upset” them. He then acquitted the accused. The case will be retried, as it was unanimously overturned on appeal.
Camp seems to be woefully out of touch—not only with the times, but with the law.
And the law is clear: there is no such thing as “implied consent.” A complainant’s attire, sexual experience, and choice to drink and are irrelevant to the question of consent; consent is vitiated if the complainant is intoxicated or unconscious. The “twin myths” outlined in Seaboyer—that a complainant who is or was sexually active is more likely to have consented and is less credible as a witness—are inadmissible. Section 276 of the Criminal Code prohibits the proffering of evidence, including a complainant’s sexual history and therapeutic records, for the purpose of invoking the “twin myths.” Section 276 requires a voir dire for the admission of that type of evidence to ensure its relevance and proper purpose, yet Camp gave the defence a carte blanche without even bothering to do a 276 hearing.
Justice Camp must not have gotten the memos. Any of them.
Professors Elaine Craig and Jocelyn Downie of Dalhousie Law, and Alice Woolley and Jennifer Koshan of University of Calgary Law, filed a complaint with the Canadian Judicial Council, noting that the judge’s comments gave rise to a serious apprehension of bias and lack of familiarity with the law that would bring the administration of justice into disrepute. On 9 November 2015, the CJC announced that it would launch an investigation.
The Council has a somewhat troubled history when dealing with complaints of this nature. Justice Robert Dewar commented in his sentencing reasons that the sexual assault was a result of “sex [being] in the air that night” and the complainant’s attire, which indicated that she “wanted to party.” He agreed to meet with an “expert on gender equality” (whatever that means) and no further action was taken by the CJC, even though it is within their discretion to continue to pursue matters (as was the case with the Justice Douglas inquiry, where the CJC was unperturbed by the lack of real issue to pursue).
I have previously written on the Douglas case, and I suggested that part of the problem was due to the vague and incomplete nature of the CJC’s procedural rules. Those rules have since been updated; the Camp case will be an indication if those updates are enough to bring real change. To his credit, the executive director of the CJC, Norman Sabourin, decided to undertake the investigation even before receiving the complaint.
For those interested in criminal law or feminist legal studies, the Camp case may seem like Ewanchuk redux.
In that case, Justice John McClung (grandson of suffragette Nellie McClung) went on a judicial diatribe about a complainant who “did not present herself… in a bonnet and crinolines.” He did not accept that the complainant’s “no” truly indicated that she did not want to have sex, suggested that sexual assault is merely boys being boys, and recommended that women prevent sexual assault by “a well-chosen expletive, a slap to the face, or if necessary, a well-directed knee.” The entire judgment seemed to have been beamed in from the 1950s. When the Supreme Court overturned his judgment and reprimanded him, he penned a response—a completely unprecedented and unprofessional move for a sitting judge. The response, like the judgment, was rife with misogyny, patriarchal entitlement, and even a cruel personal jab at Madam Justice L’Heureux-Dubé.
Indeed, judges making wildly inappropriate remarks about sexual assault complainants is nothing new. Justice Michel Bourassa once reduced Aboriginal complainants to “a pair of hips” to which a man “helps himself” and suggested that Aboriginal women are sexually assaulted because they are often drunk and passed out. His lax sentences were legendary—he once handed down a sentence of one week imprisonment plus eight months probation to three men convicted of sexually assaulting a developmentally challenged 13-year-old girl. In another case he suggested that non-Aboriginal women suffer vaginal tears and psychological trauma from sexual assault, while Aboriginal women do not. Such sentiments call to mind Shylock’s famous speech, but no amount of poetic eloquence can disabuse judges like Bourassa of their bigotry.
The Camp case and the other examples cited underscore the importance of defence counsel proffering only proper evidence for proper purposes. Unfortunately, it is simply impossible to rely on judges to separate the wheat from the chaff in sexual assault evidence when they are still evoking the prohibited myths and stereotypes themselves. When these comments come from the bench, it is particularly pernicious.
These comments are written in black and white; there is no “he said, she said” here. The federal court has decided to keep him on the bench, at least for the time being, but has, thankfully, said that it will keep him from hearing similar cases. Federal judges can only be removed by an act of Parliament, and it is very rare that it will choose to do so. If the CJC recommends removal, it is possible that the judge will simply resign to save what face there may be left to save. Camp has issued a standard form apology, and like Dewar, has promised to take a gender sensitivity course. This is not about gender sensitivity, however: it’s about rational thinking, and unfortunately, there are no courses that can help with deficiencies in that arena.
The relatively progressive state of the law is thrown into sharp relief when one sees how sloppily it is applied—or ignored—by the bar and bench.