The recent acquittal of a young Nova Scotia man accused of sexual assault highlights the complicated nature of judging sexual crimes, an expert says.
The alleged victim, who was 15 at the time, says she was sexually assaulted in October 2015 by her then-boyfriend.
In March, she testified that when he arrived to pick her up for school, they went to her room and she initially consented to sexual activity. She says, during intercourse, she received a text from her stepfather that upset her.
The boy, who was 16, continued to have sex with her when she told him to stop, she alleges.
Youth Court Judge Paul Scovil of Bridgewater, N.S., says in a written decision released last week that while he found the girl’s testimony to be credible, he was unable to convict the accused because his denial of the allegations raised a reasonable doubt.
“As set out earlier in this decision, having found (the girl’s) account credible does not end the matter,” the decision says. “The court cannot take (the girl’s) testimony, prefer it over (the boy’s) and then enter a conviction.”
At the end of the 11-page decision, it reads: “Having stated the above, I cannot say at the end of the day, that I completely reject (the boy’s) denial of the event happening as described by (the girl.) In law, that would leave me with a reasonable doubt. Accordingly, in law, I must acquit.”
Both of the teens’ names are protected by a publication ban.
Retired Dalhousie University law professor Wayne MacKay says these types of cases are complicated because the judge has a legal obligation not to convict when they’re left with reasonable doubt, even if their decision is unpopular.
“In cases like this, as in many sexual assault cases, there are no other witnesses. It’s a classic he-said-she-said,” MacKay says. “So where does that leave the judge, unless there’s proof beyond a reasonable doubt?”
The #MeToo social justice movement has sparked an international conversation on sexual misconduct, harassment and assault. Advocates have also been pushing to validate sexual assault survivors’ voices and encourage others to believe people when they come forward with stories about sexual assault and harassment.
It’s a movement MacKay says he supports, but adds it’s not that simple in the courtroom.
“In a system where we have a presumption of innocence, what you really have to do is go beyond just believing them – you have to believe beyond a reasonable doubt that their version is correct,” he says.
“And it seems to me that’s exactly what the judge is saying in this case.”
MacKay says sexual assault cases may be better suited for civil court instead of criminal, and suggests implementing specific courtrooms for sexual assault cases in Nova Scotia.
Farrah Khan, sexual assault survivor advocate and co-chair of Ontario’s Roundtable on Violence Against Women, says in a phone interview Sunday that the legal process can further victimize survivors of sexual assault.
“The challenge is, no matter what you do or what you say as a survivor there are so many hurdles and challenges for you to be heard in court, let alone get a conviction,” she says.
Data from Statistics Canada indicates that one in five sexual assaults reported by police between 2009 and 2014 led to a completed court case. Meanwhile, just one in ten sexual assaults reported by police led to a conviction, which is less than half the proportion of physical assaults.
“The court system itself is so traumatizing,” says Khan, adding that sexual assault disproportionately affects girls and women between the ages of 16 and 24. “You’re asking them to, numerous times, mention what happened to them, in a courtroom, oftentimes in front of family members, people they know and the community.
“It’s your credibility on trial, it’s your words on trial, it’s your experiences on trial.”