Sexual Assault: not a case of “I know it when I see it”.
Former Provincial Court Judge is facing a Judicial Council Panel inquiry for the way he treated a complainant in a sexual assault trial, and the manner that he perceived the sexual assault complainants in general. If the complainant is not consenting, there is no consent. The sexual assault is therefore really a question of whether the complainant consented to the sexual act, with one discreet exception: mistaken belief in consent. The accused may have a justifiable belief that there is real consent when no force or threat of force has been applied, and there is no other form of coercion. Drunkenness is not a defence. The courts require an “air of reality” for that defence.
Fundamentally, in a trial for sexual assault the defence will have to be: 1. credibility, with the lawyer challenging the complainant on the truth of the allegation that there was no consent; 2. it didn’t happen at all; or 3. an unusual set of circumstances misled the accused into thinking that he had consent and there was nothing to indicate otherwise. Where the now Federal Court Judge went seriously wrong in his thinking, was to think that consent could have been present or that the complainant had to do something to stop the sexual assault. If he/she does not consent, then the only thing he/she should do is not pretend to consent, unless she has a good reason to be afraid to “not to consent”.
Calgary Violent Crimes
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