Judges should not factor whether an accused has a happy sex life with his wife into the sentencing decisions of sex-crime cases, says one of Canada’s foremost scholars on how the justice system responds to sexual violence.
Elaine Craig, a Dalhousie University law professor who wrote a book on sexual assault prosecutions, said it was “entirely inappropriate and out place” for a British Columbia judge to reference a man’s “marital intimacy deficits” while discussing his propensity to reoffend and his prospects of rehabilitation.
In his recent ruling, Provincial Court Justice Joseph Galati accepted the findings of a psychiatric assessment that concluded this lack of sex was a factor in why a West Vancouver man surreptitiously videotaped an international student living in his home last year as she was naked or partly dressed.
The judge gave the man – whose identity is covered by a publication ban to protect the identity of the student – a conditional discharge contingent upon him completing 30 months of probation. The man had been charged and pleaded guilty last June to voyeurism, which carries a maximum sentence of five years in prison. Court heard the 43-year-old father was renting a bedroom to the international student in August, 2022, when she discovered that the toothbrush charger in the bathroom she shared with his teen daughter was actually a spycam.
“At bar, the offence, as I’ve already indicated, is not trivial, but it’s not at the most serious end of the spectrum either. Further, it appears that [the offender’s] actions were out of character and, as described in the psychiatric assessment, it appears that marital intimacy deficits contributed to the offending conduct,” said Justice Galati, according to an audio recording of the Oct. 26 hearing requested by The Globe and Mail.
Dr. Craig said the inclusion of this evidence at sentencing “relies on the same tropes of discriminatory stereotypes we’re trying to eradicate from the law.”
“What underpins the reasoning there? It’s that his wife wasn’t sexually available to him so he had to go elsewhere. That his wrongdoing was somehow less problematic.”
Dr. Craig was also critical of the Crown prosecutor’s mention in the case that the offender said he never wanted to touch the victim and that he believed he wouldn’t be hurting her as long as she didn’t know. The comment underscores “the complete lack of understanding of the harm that’s perpetuated” by voyeurs, Dr. Craig said.
A reference to marital intimacy deficits has come up in two other cases over the past decade, according to a search of an online repository of court judgments run by the Canadian Legal Information Institute. In one B.C. Supreme Court case from earlier this year, court heard that a man who was nearly 50 years old had a lack of sex in his marriage when he knowingly had sex with a 15-year-old girl in Salmon Arm, but the justice ignored this as a factor when sentencing him for his crimes.
In the earlier case, from 2015, an Alberta Provincial Court judge stated that a man possessed and distributed child pornography in part because of “physical and emotional intimacy deficits” in his marriage and ruled that these struggles and his sexual attraction to pubescent boys put him at a moderate risk to commit this crime again.
Justice Galati’s ruling, and the reference to the psychiatrist’s assessment, raised the ire of B.C.’s Attorney-General Niki Sharma. She said the inclusion of this reasoning is an indication that the justice system needs to improve the way it treats survivors of sexual violence. She has since received letters from the B.C. branch of the Canadian Bar Association and the BC Law Society, the self-regulating body in charge of upholding the standards of lawyers in the province, rebuking her decision to step into the case.
“It shouldn’t have been a factor,” Ms. Sharma said during a recent phone interview with The Globe.
She also tweeted: “It’s important that all actors in our justice system understand a trauma-informed approach to dealing with sexual abuse.”
Spokespeople for the bar association and the law society declined to state their opinion on whether the prosecutor and judge were correct to bring the man’s sex life with his wife into the sentencing hearing. Instead, both groups pointed to their open letters that Ms. Sharma’s comments interfered with the independence of the judiciary and undermined public confidence in the courts she is duty bound to promote.
“We recognize there will be different views on whether the sentence passed was appropriate,” Law Society president Christopher McPherson wrote. “However, it is our opinion that judges can expect the Attorney-General to defend the role of the justice system rather than imply that judges are not sufficiently trained and have thereby imposed an inappropriate sentence.”
The Office of the Chief Judge of the Provincial Court of B.C. declined an interview request this week on the case. However, it sent a statement touting the internal professional training that the court gives new judges and the continuing training all judges receive at mandatory conferences. The statement noted the annual spring education conference was focused solely on sexual assault trials last year as well as in 2017.
Asked by The Globe about the pushback from the professionals her ministry oversees, Ms. Sharma stood by her comments.
“I really don’t believe our system is so fragile that, as Attorney-General, I can’t raise an issue where I think we can do better and we can all work together to get there,” she said.
Mike Hager