OPINION
8 Obiter Dicta
Keep Your Knees Closed and Your Bonnets On
When Rape Mythology Invades Judicial Reasons
esther mendelsohn › contributor
J
ustice Robin Ca mp 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
ê Photo credit: Gary Clement / National Post
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