Appeal Court says Alberta judge relied on stereotypes in sex assault case

EDMONTON — The Alberta Court of Appeal has overturned the acquittal of a man convicted of sexually assaulting his stepdaughter after finding the trial judge relied on myths and stereotypes around the behaviour of victims.

In a split decision released this week, the three-judge panel ordered a new trial for the 55-year-old man on three counts of sexual assault.

He can’t be named under a publication ban.

During the man’s trial in February 2016, the stepdaughter told Court of Queen’s Bench Justice Terry Clackson that her stepfather regularly assaulted her over six years, starting when she was in Grade 4.

The stepfather testified he was never alone with the child long enough for the offences to take place.

Clackson told court he was left with doubts about the allegations because the girl, now an adult, had an “otherwise normal parent/child relationship” with the accused.

“I would have expected some evidence of avoidance either conscious or unconscious. There was no such evidence,” Clackson ruled. ”As a matter of logic and common sense, one would expect that a victim of sexual abuse would demonstrate behaviours consistent with that abuse or at least some change of behaviour such as avoiding the perpetrator.”

Two of the three appeal judges said that reasoning was wrong.

“The trial judge’s acquittals were directly tied to a legal error of applying an impermissible stereotype or myth that avoidant behaviour was ‘expected,’ and concluding the absence of such behaviour negatively impacted the complainant’s credibility,” wrote justices Marina Paperny and Frederica Schutz.

“It was the trial judge’s assessment that a victim would avoid her perpetrator or otherwise exhibit a change of behaviour; he thus engaged in a prohibited, stereotypical-based assessment of credibility that cannot stand.”

The third appeal judge, Justice Frans Slatter, disagreed. He cited a section of Clackson’s decision in which Clackson noted that he was not relying on ”myths of appropriate behaviour” to judge the girl’s credibility.

“Since the trial judge had just instructed himself not to rely on any stereotypes about the conduct of sexual assault victims, it is not appropriate to assume that he did so anyway,” Slatter wrote.

“The reasons for judgment must be read as a whole and in context. Determining if there is a reasonable doubt based on the evidence or absence of evidence is the particular mandate of the trial judge.”

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