Why some courts don’t get consent in sex offence trials

Canadian courts have recently come under intense scrutiny over the treatment of complainants in trials of sexual assault offences.  From the judicial discipline proceedings against Judge Robin Camp, who asked the assault complainant why she “couldn’t just keep [her] knees together,” and referred to her as “the accused,”  to the acquittal of taxi driver Bassam Al-Rawi on the basis that a woman intoxicated to the point of loss of consciousness could give consent, some trial courts seem to have been disregarding the Supreme Court of Canada’s clear ruling in its 2011 decision, R. v. J.A.

Since J.A., the law of sexual assault in Canada is now clear that an accused’s belief in consent is insufficient.  There must be a belief that the complainant communicated her consent to sexual activity.  Moreover, the complainant is entitled to change her mind and withdraw consent.  The case settled a contest between the accused’s autonomy as the freedom to do what he likes, and the complainant’s autonomy as the freedom from having unwanted physical contact.

In the context of many assault cases, it boils down to the woman’s freedom to drink, party and choose her sexual partners without fear of being assaulted.  It is not only a matter of community values and morality, but also a democratic protection of equal participation.  Part of the sexist mindset underlying many post-2011 judicial failures to apply the law comes from a misunderstanding that the prohibition of sexual offences are only about values and morality (what the man should not do), while disregarding the woman’s autonomy.  Consent is an act of autonomy, and so disregarding its centrality to the law of sexual assault is a basic and inexcusable legal error.

Before his removal from the bench, Judge Camp entered a course of gender-sensitivity training.  Since then, leaders and officials in Canada’s legal system have been on edge.  How many other Robin Camps are there out there?  What kind of training or education must be provided to new judges?  Would imposed training on existing judges interfere with their independence?

In his recent paper, Regulating Inductive Reasoning In Sexual Assault Cases, Professor David Tanovich studied the decisions of respected criminal law jurist Justice Marc Rosenberg to find evidence of a more fundamental issue of legal skills training.  This is the belief that some of the judicial failures in sexual assault trials can be traced to unregulated inductive reasoning.  Inductive reasoning is the method of thinking involving the development of ex ante hypotheses, to be tested by evidence.  It is contrasted with deductive reasoning, often associated with the ex post or forensic practice of aggregating data and drawing inferences and patterns.

Unregulated or sloppy inductive reasoning, associated with ‘common sense’ or excessive reliance on past experience, can degrade into bias, myth perpetuation or stereotype.  Sexism can be a bias in inductive logic, if one only approaches the case from the accused’s point of view.  This bias can imperil a fair result, because the case is usually about communication of consent and it is wrong to infer consent from silence or in circumstances of duress.

Despite the abstract nature of this analysis, it is important for Canadian lawyers and judges to recognize its role, if trial courts are ever to ‘get it’ in terms of applying the Supreme Court decision consistently.  The exploration of methods of fact-finding in the trial process is essential to understanding how judgments may have been skewed by stereotypes and biases favouring the accused’s autonomy over the complainant’s.

It is important to observe that unregulated inductive reasoning is an error – an error or misuse of inductive reasoning.  One must not equate this to a reason not to employ this important method of legal fact-finding, in the sense of the Beckett character Pozzo stepping on Lucky’s thinking cap and declaring: ‘comme cela il ne pensera plus.’  If we relied only on deductive reasoning for sexual assault trials where consent is the main issue, we would likely end up with even fewer convictions.  Retrospective or forensic evidence of consent is biased toward a finding of consent because one is looking for it; whereas induction (properly employed) supports the view that there is no consent until it is clearly communicated.  Inductive reasoning should properly facilitate the ex ante finding of fact or state of being, that there is no consent until it is clearly expressed.

The actual failure in cases like Al-Rawi stems largely from the justice system’s historical difficulty in using inductive reasoning from the complainant’s vantage point.  One might call this a deficit in gender sensitivity, but it would be more accurate to consider it a misconception of the role of consent and personal autonomy.  One can end up with cases where the complainant’s position that she did not consent is disbelieved because of her clothing, state of intoxication or prior sexual conduct become part of a fragmented record judges like to describe as ‘in all the circumstances.’  That is actually a deductive statement that uses the complainant’s behaviour and past conduct to triage facts when the only fact that really matters is communication of her consent or lack thereof.

One key to understanding the potential for abuse of inductive reasoning in fact-finding consent to sexual activity is the belief that courts’ criticism of complainants’ drunkenness or lifestyle reflects a valid concern for their welfare.  Consider the comments of the U.K. judge who warned women that drinking created a greater risk of being raped.  This is actually the type of inductive reasoning used by risk assessors such as actuaries when developing models explaining historical events.  For example, Gordon Woo’s recent work on disaster analysis, such as explaining the 9/11 attack in his paper, Counterfactual Disaster Risk Analysis, works with the premise that the historical event could have happened in multiple instances but must be seen from the ex ante perspective in order to get a true appreciation of the extent of the risk of a terrorist attack.

This type of inductive reasoning is vital for risk assessment and causation, for example, in determining the negligence of public authorities. As a consideration in fact-finding whether there was adequate evidence of communication of consent, however, this type of analysis is dangerous, because the issue is not whether consent could have been given but rather whether it was given.

In the failed sexual assault hearings, there has been an undue focus on the event of the assault within a constellation of circumstances (implying that a woman who gets drunk at a bar or party becomes an object of multiple counterfactual or hypothetical sexual encounters, with consent and without consent), when the element that makes it an assault is a singular negative circumstance, i.e. lack of consent.  The mindset of courts viewing the intoxicated or sexually active woman as a person who is simply waiting to be assaulted is precisely the type of misapplication of inductive reasoning that could reason that 9/11 was caused by lax airport security and intelligence services, instead of a conspiracy of terrorists.

If one starts with the premise in a free and democratic society that half the population should be as free to roam the bars and nightclubs of our cities and towns as the other half, telling women to avoid drink is not a valid consideration when considering the guilt or innocence of her alleged assailant.  Once one applies inductive reasoning properly to the issue of consent, it is very difficult to make the judicial error of blaming the victim even if, as in the case of Judge Camp, the judge might be predisposed to making that error.  Interestingly, this is a mental skill or discipline which can overcome biases such as sexism and gender stereotypes that does not depend on one’s sensitivity to gender issues or politics.  Ultimately, regulating inductive reasoning should help courts apply the law of the land with greater consistency and, in turn, encourage more victims to come forward.

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