Annex B - Myths and Stereotypes in Sexual Assault Case Law

Sexual assault is often gender-based violence

“Sexual assault is in the vast majority of cases gender based. It is an assault upon human dignity and constitutes a denial of any concept of equality for women.”

Sexual assault is an act of power and control

“It must be remembered that sexual assault is an act of power, aggression and control, and that a threat to invade the bodily or sexual integrity of another person or to otherwise apply force is itself a hostile act” 

Psychological trauma from sexual assault is real

“The psychological trauma suffered by rape victims has been well documented. It involves symptoms of depression, sleeplessness, a sense of defilement, the loss of sexual desire, fear and distrust of others, strong feelings of guilt, shame and loss of self-esteem. It is a crime committed against women which has a dramatic, traumatic impact. ... To ignore the fact that rape frequently results in serious psychological harm to the victim would be a retrograde step, contrary to any concept of sensitivity in the application of the law.”

Rape myths negatively impact the search for truth

“The woman who comes to the attention of the authorities has her victimization measured against the current rape mythologies, i.e. who she should be in order to be believed. If to be recognized as having been, in the eyes of the law, raped; who her attacker must be in order to be recognized, in the eyes of the law, as a potential rapist; and how injured she must be, her victimization does not fit the myths, it is unlikely that an arrest will be made or a conviction obtained.”

- Supreme Court of Canada, Seaboyer  

“Speculative myths, stereotypes, and generalized assumptions about sexual assault victims and classes of records have too often in the past hindered the search for truth and imposed harsh and irrelevant burdens on complainants in prosecutions of sexual offences.”

- Supreme Court of Canada, Mills

“While in most instances the adversarial process allows wide latitude to cross-examiners to resort to unproven assumptions and innuendo in an effort to crack the untruthful witness, sexual assault cases pose particular dangers. Seaboyer, Osolin and Mills all make the point that these cases should be decided without resort to folk tales about how abuse victims are expected by people who have never suffered abuse to react to the trauma:”

- Supreme Court of Canada, Shearing

“Traditional myths and stereotypes have long tainted the assessment of the conduct and veracity of complainants in sexual assault cases – the belief that women of “unchaste” character are more likely to have consented or are less worthy of belief; that passivity or even resistance may in fact constitute consent; and that some women invite sexual assault by reason of their dress or behaviour, to name only a few. Based on overwhelming evidence from relevant social science literature, this Court has been willing to accept the prevailing existence of such myths and stereotypes:”

- Supreme Court of Canada, Find

R v. Seaboyer; R v. Gayme, 1991 CanLII 76 (SCC), at para 140.

R v. Mills, 1999 CanLII 637 (SCC), at para 119.

R v. Shearing, 2002 SCC 58 (CanLII), at para 121-122.

R v. Find, 2001 SCC 32 (CanLII), at para 101.

Myths and stereotypes are errors in law

“First, the proposed rule against ungrounded common-sense assumptions is not a logical extension of the prohibition against myths and stereotypes about sexual assault complainants. It reflects a misunderstanding of the distinct body of law associated with myths and stereotypes in sexual assault cases, which has a unique history and a specific remedial purpose: to remove discriminatory legal rules that contributed to the view that women, as a group, were less worthy of belief and did not deserve legal protection against sexual violence. Several myths and stereotypes have been jurisprudentially condemned as errors of law and significant legislative changes were made with a view to protecting the rights of women and children given their particular vulnerability to sexual violence. This history puts into perspective the distinct reasons why relying on myths and stereotypes to discredit sexual assault complainants amounts to an error of law, as opposed to being an ordinary factual finding reviewable for palpable and overriding error. Conversely, the proposed rule does not relate to specific, identified, erroneous generalizations about a specific category of witness, nor does it protect elements of an offence from taking on a distorted meaning. It instead lumps together the sorts of pernicious, discriminatory stereotypes that both the courts and Parliament have worked to condemn and correct with more benign generalizations that, while they may be factually wrong, have nothing to do with inequality of treatment.”

Myths and stereotypes haunt the justice system

“The criminal trial process can be invasive, humiliating, and degrading for victims of sexual offences, in part because myths and stereotypes continue to haunt the criminal justice system. Historically, trials provided few if any protections for complainants. More often than not, they could expect to have the minutiae of their lives and character unjustifiably scrutinized in an attempt to intimidate and embarrass them, and call their credibility into question — all of which jeopardized the truth-seeking function of the trial. It also undermined the dignity, equality, and privacy of those who had the courage to lay a complaint and undergo the rigours of a public trial.

Over the past decades, Parliament has made a number of changes to trial procedure, attempting to balance the accused’s right to a fair trial; the complainant’s dignity, equality, and privacy; and the public’s interest in the search for truth. This effort is ongoing, but statistics and well-documented complainant accounts continue to paint a bleak picture. Most victims of sexual offences do not report such crimes; and for those that do, only a fraction of reported offences result in a completed prosecution. More needs to be done.”

Basing credibility on stereotypes is an error of law

“We would dismiss, substantially for the reasons of the majority of the Court of Appeal. In considering the lack of evidence of the complainant’s avoidance of the appellant, the trial judge committed the very error he had earlier in his reasons instructed himself against: he judged the complainant’s credibility based solely on the correspondence between her behaviour and the expected behaviour of the stereotypical victim of sexual assault. This constituted an error of law.” 

Evidence, not stereotypes, are used in a fair trial

“What constitutes a fair trial takes into account not only the perspective of the accused, but the practical limits of the system of justice and the lawful interests of others involved in the process, like complainants…” 

Myths and stereotypes have no place in law

“This Court has repeatedly held that myths and stereotypes have no place in a rational and just system of law, as they jeopardize the courts’ truth-finding function.”

Myths and stereotypes distort truth-finding function

“When assessing the evidence of a complainant in relation to an allegation of sexual assault, the court must not resort to the use of myths and stereotypes. Myths and stereotypes have no place in our law and distort the truth-finding function of the court.”

…

“People react differently to events. There is no correct or standard way for a complainant to react to a sexual assault.”

Complainant should not be “whacked” by the accused through cross-examination

“The provisions of ss. 15 and 28 of the Charter guaranteeing equality to men and women, although not determinative should be taken into account in determining the reasonable limitations that should be placed upon the cross-examination of a complainant... . A complainant should not be unduly harassed and pilloried to the extent of becoming a victim of an insensitive judicial system... .

The reasons in Seaboyer make it clear that eliciting evidence from a complainant for the purpose of encouraging inferences pertaining to consent or the credibility of rape victims which are based on groundless myths and fantasized stereotypes is improper.

The accused is not permitted to "whack the complainant" through the use of stereotypes regarding victims of sexual assault.” 

Improper defence tactics are harassment

“Over the years, Parliament and the courts have recognized the disadvantaged position of a complainant in a sexual assault prosecution and have taken steps to address the often irrelevant and unfair attacks on the character, privacy, and security of the complainant. The efforts have focused on many injustices including the harassment of the complainant by the improper defence tactics engaged.”

- Supreme Court of Canada, Roland

“There was recognition that the tactics, even when unsuccessful, were often unsettling, if not harmful, to the complainant and constituted harassment resulting in humiliation, intimidation, and injury to the complainant. In some cases, the objective of the tactics was no more than to cause upset and throw the complainant off balance. The prosecution of a sexual assault allegation is "not an occasion for putting the complainant's lifestyle and reputation on trial," and a "complainant should not be unduly harassed or pilloried to the extent of becoming a victim of an insensitive justice system.”

- Supreme Court of Canada, Osolin

R v. Roland, 2020 BCPC 130 (CanLII), at para 27-28.

R v. Osolin, 1993 CanLII 54 (SCC), at para 672, 669.

Cross-examination cannot be abusive

“…cross-examination techniques in sexual assault cases that seek to put the complainant on trial rather than the accused are abusive and distort rather than enhance the search for the truth.” 

Rejecting the view that sexual assault cases are more likely to be fabricated

“…has rejected the notion that complainants in sexual assault cases have a higher tendency than other complainants to fabricate stories based on “ulterior motives” and are therefore less worthy of belief. Neither the law, nor judicial experience, nor social science research supports this generalization.”

Trauma informed practices enhance public respect for justice

*This is a civil case but includes often-cited information on trauma-informed process

“First, it is important to describe what I mean by a trauma-informed process. It is not one that aims to heal the trauma that participants in the process have experienced. It is not about manners or kindness. It is about adapting our processes in a way that seeks to minimize the trauma that the legal process itself can create, and it is about understanding how a person’s trauma might inform or affect their interactions with the legal system. A trauma-informed process can thus operate to remove barriers to just outcomes, and enhance public respect for, and the legitimacy of, the administration of justice.” [Emphasis added]