“Free Woman”
Cartoon by Raúl Fernando Zuleta, 3rd place winner, 9th World Press Cartoon 2012.
If the bible’s fairy tales had been written with Zuleta’s cartoon above as their basis, perhaps rape of women and kids would not be humanity’s standard practice with the legal-judicial industry re-victimizing rape victims in court, sometimes even jailing them, and pimping gag orders on the harmed (NDAs) to keep rapists raping, notably raping lawyers, politicians, catholic priests and other religious authorities.
I’ve watched authorities protect rapists and abuse victims of rape throughout my life. This has me concluding that the players in the legal-judicial industry see women and kids as sex toys, not human, OK to rape (and murder) like Zionists believe Palestinians are insects and thus exterminating them is not genocide.
This cartoon below by Raúl Fernando Zuleta provides a simple economical solution for rapists that would work extremely well as long as no lawyers and no judges are involved in the trials and judgements (lawyers and judges have destroyed their credibility when it comes to trying rapists, and need to be punted out on their pro rape hideous asses):
Is Conor McGregor verdict a watershed moment for the manosphere? Some tried to defend Irish MMA fighter after civil jury ruled against him in rape case but others hope it will open space for conversation about masculinity by Ashifa Kassam and Lisa O’Carroll, 2 Dec 2024, The Guardian
The ruling made headlines across Ireland and around the world, sending women spilling into the streets of Dublin with signs that read “Thank you Nikita”.
Days after a civil court jury ordered mixed martial arts fighter Conor McGregor to pay nearly €250,000 over claims he had “brutally raped and battered” Nikita Hand, the case has prompted calls for a rethink of how society interacts with power, wealth and a “manosphere” intent on pushing its own notions of masculinity.
The roots of the case trace back to a Dublin hotel penthouse in 2018, where Hand accused McGregor of raping her after she invited him to join her and a friend at a work Christmas party.
For two weeks a jury heard Hand’s harrowing testimony: a paramedic who had examined her the next day told the court that she hadn’t seen such severe bruising for a long time, a psychiatrist diagnosed her with PTSD and told how Hand was unable to return to work as a hairdresser after being gripped with night terrors, panic attacks and anxiety.
McGregor, a former star with the Ultimate Fighting Championship, denied the allegations, saying that he had “fully consensual sex” with Hand and she had concocted the assault to cover her cheating on her then boyfriend. He has said he will appeal against the jury’s decision.
Heard in the high court of Dublin, the case sent shock waves around the world, including the US where McGregor has a huge following.
After the ruling, many lined up behind Hand. The Irish justice minister hailed her courage, while a number of businesses and Dublin and Cork airports swiftly stopped selling products associated with McGregor.
Some, however, rushed to defend the 36-year-old who last year was described in an Irish Times column as “immensely famous, with a fervent fanbase, a persona forged in cod-gladiatorial showbusiness, a genius for personal branding and a toxic narcissism that is the political style of our times.”
The shows of support sent media in the country scrambling to qualify his appeal, with the chief sports writer for the Irish Mirror likening him to a cult leader. “But millions around the world bought into the Cult of Conor McGregor,” he wrote. “He has appeared in a big budget Hollywood movie alongside Jake Gyllenhaal. He has hung out with Donald Trump and Vladimir Putin. Elon Musk and Russell Brand said he should be President of Ireland.”Shows us how stupid, vulgar and misogynistic the human species is, I think thanks to rape religions.
Others were more blunt in their assessment of what was going on: “What the hell is wrong with the men who still insist on defending Conor McGregor?” one columnist asked in the Irish Independent.
For Ernesto Vasquez Del Aguila, an assistant professor who teaches a class on masculinities at University College Dublin, the hope was that the case would open a wider space for conversations on violence and masculinities, offering a potent challenge to the “so-called manosphere”.
It would be a twist for McGregor, long held up as a certain brand of masculinity following a life laced with violence both inside and out of the ring. He pleaded guilty to disorderly conduct after throwing a dolly at a bus carrying UFC fighters in 2018, while in 2019 he was fined after he punched a man in a Dublin bar.
“This is not an isolated case. We men are socialised with the expectation that violence is part of being a man, that we are entitled to women’s bodies, that men are naturally hypersexualised, that ‘no’ means ‘try harder’,” Vasquez Del Aguila said in an email. “Men are not naturally ‘toxic’ or inclined to violence. Society teaches them these roles and we can change these narratives.”Horrifying and beyond gross.
In recent years, McGregor had seemingly drifted to the right, clashing with Irish authorities and accusing them of making him into a “scapegoat” after rioting in Dublin. One day before the riots, McGregor posted “Ireland, we are at war,” to his 10.3 million followers, while in a later post he added: “There is a grave danger among us in Ireland that should never be here in the first place.”
The impact the ruling would have on McGregor’s fans remains to be seen, said Charlotte Proudman, a barrister who specialises in violence against women and girls. “For some in his fanbase, I can see this decision reinforcing their admiration for McGregor, as they see his behaviour as a reflection of the dominance and entitlement of women and their bodies often celebrated in toxic masculinity,” she said in an email. “However, it could also lead to others who value accountability and respect for women distancing themselves from him.”
Among those who have backed McGregor was Andrew Tate, the self-styled “misogynist influencer” who recently sought to disparage Hand in an X post viewed more than 5m times and which described the jury’s decision as “a bullshit ruling”.
Proudman described it as an unsurprising display of solidarity among “those who normalise violence against women”. While some might brush off these “toxic dynamics”, Proudman highlighted the grave risks they pose. “These public defences perpetuate rape myths and embolden others to dismiss or attack survivors.”
At the Dublin Rape crisis centre, recent days had offered up glimpses of both extremes of the conversation. Six hours after the jury delivered its decision – and after Hand, her voice shaking as she spoke outside the courtroom, calling on victims to speak up, fight their fears and keep fighting for justice – calls to the national rape crisis hotline had surged by 150%, said the centre’s CEORachel Morrogh.
At the weekend, as the country grappled with what to make of McGregor after the ruling, calls to the hotline had doubled while first time callers were up more than 50%. “It’s had a really significant impact,” said Morrogh.
At the heart of this was Hand’s tremendous strength in coming forward, she said. “She demonstrated such courage and bravery in taking not only Conor McGregor on, but she took on his legions of fans as well, who are very vocal in parts of the internet and social media particularly.”
But while the case had made clear that women, regardless of their behaviour or their decisions, were never to blame for being raped, it had also laid bare the pervasiveness of negative attitudes and behaviours, said Morrogh.
“I also think that underneath what perhaps could be described as a veneer of social progress, there is a toxic stratum,” she said. “What we saw, mostly in social media commentary, was that when you scratch that veneer, you see the ugliness of what lies beneath.”
Will Gisèle Pelicot’s courage spell the end of rape victims being put on trial? Although the French court case represents a watershed for women, reform of justice systems is vital by Yvonne Roberts, 1 Dec 2024, The Guardian
Globally, home is the most dangerous place for womenhome was my most dangerous most often violently raped place as a girl, forests and rivers – anywhere away from humans – were my safest places, a United Nations paper reported last week. It was referring to femicide, the killing of women by a partner or former partner, but as we’ve learned over the past three months during the trial of Dominique Pelicot, 72, and the 50 “ordinary” men who visited Gisèle Pelicot, 72, when she was drugged and comatose, to have sex with her inert body, home offers no haven for the living either.
Pelicot waived her right to anonymity, allowing her ex-husband’s cache of videos of the nocturnal rapes to be shown in court. “The shame is theirs,” she pointed out, always composed, refusing to be humiliated.
She has been applauded daily by feminists outside the court during the trial in Avignon. “Laissez nous dormir,” read the banners. “Let Us Sleep!” The case has also prompted demonstrations across France against gender-based violence. This is, “everyone’s business” not just the concern of women, one protester said.
Misogyny, however, is adaptable and resilient, as is the ability of the patriarchy to protect its most perverted and powerful. Change was promised after the exposure of Jimmy Savile Harvey Weinstein and Jeffrey Epstein and others. The same promises will be made again following the emerging understanding of the scale of abuse conducted for decades by the late Mohamed Al Fayed, his actions enabled by some of his staff, “a tame policeman” and his wealth.
As the Pelicot case illustrates, new frontiers of abuse are opening up, including voyeurism aided by surveillance technology; the all-pervasive influence of pornography with its focus on the powerless woman, and poorly regulated cyberbullying exposing females on the internet to audiences of millions. A woman’s right to personal privacy, security and safety is in a perilous place.
Michel Barnier, the French prime minister, has said “more needs to be done”, beginning with a new campaign in France about the danger of drug-induced abuse and funds for victims of male violence. Pelicot herself told the court: “I’m expressing myself here not with anger or my hatred but with a will for society to change.” Can it?It can, but will not. Why? Because the raping rich, notably the richest corporation in the world and worst rapist farm globally, the catholic church, will not allow it. In my experience directly and to my dismay, some of the most evil agents of rape, are women, including Canada’s past chief justice of the supreme court, Beverley McLachlin, when she was still chief justice there. After she retired, she further blew her credibility serving oppression.
According to an Ifop poll in October, in France, eight in 10 French people have heard of the trial and nearly three-quarters believe it demonstrates, “the permanence and trivialisation of sexual violence in our society”. In the French legal system, rape is currently defined as “sexual penetration, committed against another person by violence, constraint, threat or surprise”. Consent may now be introduced. But consent can be extracted from a woman who is coercively controlled and too terrified to refuse. It is not the best lesson learned. The challenges in achieving justice for raped and sexually assaulted women – let alone prevention from attack – are far more complex and deeply rooted.
Dominique Pelicot, who also took illicit photographs of his daughter and two daughters in law, horrendously wounding his family, is expected to receive a 20-year sentence when the trial ends this month.I’m expecting the court to let him go with a kiss on the wrist, to protect his future, and help him heal from the horrific trauma he brought upon himself. Man to Man, serve the raping patriarchy klan. I will be stunned if he is not set free.Only 14 of the defendants, aged from 26 to 74, on trial with Pelicot have pleaded guilty. Redouane El Fahiri, 55, a married nurse, told the Sunday Times: “Gisèle Pelicot is not the only victim I am one too.” The men may face sentences of up to 18 years.
Hefty punishment is expected because Pelicot is the perfect victim. The defence lawyers tried the usual tactics of undermining her evidence, they failed, ironically partly aided by Dominique Pelicot’s own videos. Gisèle Pelicot was not promiscuous. She had slept with two men knowingly in her life.
Her behaviour did not precipitate the attacks – she was in a stupor. She was not lying to seek revenge – the videos said otherwise. She is no drinker. She is a demurely dressed septuagenarian. Her consent was never an issue. She had been rendered mute by drugs.
But what of the rape cases where it is the credibility and character and dress of the victim that is on trial not the actions of the accused?
Nikita Hand has just won a civil case in Dublin against martial arts fighter Conor McGregor that he raped her “on the balance of probability”. Over £200,000 has been awarded in damages. A criminal case would have required the charge to be proved “beyond reasonable doubt”. The director of public prosecutions decided not to prosecute. Hand said she had been “very drunk” at the time of the attack.
News of the successful civil case, according to Rape Crisis Northern Ireland, has resulted in a surge of 150% in calls to rape helplines.
Individual women courageously refusing to allow rape myths to steal their right to justice do matter but it’s radical systemic change of the criminal justice system as a whole that’s required – and for more men to challenge their fellow males. Rape is not masculine booty; it is among the worst of crimes.And yet the least punished. Well, the perps are least punished while the victims are the most punished (by all authorities, including judges).
Rape Crisis says in July 2023 to June 2024 69,184 rapes were reported in England and Wales, only 2.7% led to a charge. Fewer than one in six rapes are reported to the police. What’s the point? Rape and sexual assault are the gold standard offences for perpetrators because there is so little retribution.
Pelicot was asked in court why she hasn’t changed her name. “I have grandchildren called Pelicot,” she replied. “I want them to be proud”. Pride in their grandmother for sure. In contrast, in Romania, Andrew Tate, facing charges of trafficking and rape, has offered his woman-hating support to Conor McGregor. “It’s literally impossible to be a man in the western world,” he complains. If only.
Cartoon by Raúl Fernando Zuleta of Lady Justice pregnant by a judge.
Did the judge rape her, and take her right to abortion away to be triply cruel?
Myths, Stereotypes, and Substantive Equality by Jennifer Koshan, November 29, 2024, Ablawg
Case Commented On: R v Kruk, 2024 SCC 7 (CanLII)
PDF Version: Myths, Stereotypes, and Substantive Equality
Canada’s legal frameworks related to substantive equality and sexual assault law have led to a robust body of jurisprudence on myths and stereotypes about sexual violence. The Supreme Court of Canada first used the language of myths and stereotypes in R v Lavallee, 1990 CanLII 95 (SCC), [1990] 1 SCR 852. In Lavallee, Justice Bertha Wilson repudiated the myth that real victims of intimate partner violence (IPV) will leave their abusers, noting that there are many reasons why women may be unable to do so. A year later, the Court identified several myths and stereotypes about sexual assault, including the “twin myths” that women with a sexual history are more likely to have consented to the alleged sexual activity or that they are less worthy of belief (see R v Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 SCR 577; most recently see R v TWW, 2024 SCC 19 (CanLII)). In the decades since, numerous myths and stereotypes about gender-based violence (GBV) have been debunked by the Supreme Court (see here), and in cases where such misconceptions have infected trial decisionsintentionally I bet, caused by misogyny and religion rather than boo boos in law, errors of law have been found on appeal.
In spite of this legal history, lawyers continue to make arguments based on myths and stereotypes in criminal law, family law, and tort law proceedings, and sometimes, judges accept these arguments to the detriment of survivors. Again, I think this is done to serve the raping patriarchy and misogyny, aided by personal and or religious beliefs that women are less than human, are property and do not have legal rights to their own bodies, do not have the right to say no to any man.
Another strategy used by the defence in criminal sexual assault cases has been to argue that judicial reliance on “ungrounded common sense-assumptions” that prejudice the accused’s case should have the same status as myths and stereotypes, resulting in an error of law reviewable on a correctness standard. This type of argument has led to convictions being overturned on appeal (see e.g. R v Kruk, 2022 BCCA 18 (CanLII); R v JC, 2021 ONCA 131 (CanLII)). Other defence lawyers have argued that some myths and stereotypes about sexual assault have become so well understood that juries do not need to hear expert evidence about them – a trial judge’s instructions to the jury can sufficiently guard against any biases (see R v Hoggard, 2024 ONCA 613 (CanLII); R v Nygard, 2024 ONCA 744 (CanLII)).
This post examines the Supreme Court’s decision in R v Kruk through the lens of substantive equality. Substantive equality is the accepted approach to equality rights under the Canadian Charter of Rights and Freedoms, recognizing (amongst other things) that differential treatment may be required in order to achieve true equality (see e.g. Andrews v Law Society of British Columbia, 1989 CanLII 2 (SCC), [1989] 1 SCR 143 at 165-167; Fraser v Canada (Attorney General), 2020 SCC 28 (CanLII) at para 40). While Kruk did not involve a Charter challenge or use the term ‘substantive equality,’ this lens is a helpful one for understanding the decision and its analysis of rape myths. I also categorize and discuss the range of myths and stereotypes recognized in Kruk and identify some gaps, including those related to the impact of trauma on survivors of GBV (with reference to Hoggard). Lastly, I examine the implications of Kruk for other areas of law, including IPV cases in the criminal and family law systems.
Kruk – Background and Lower Court Decisions
Kruk came to the Supreme Court of Canada as one of two Crown appeals from decisions of the British Columbia Court of Appeal (BCCA) in sexual assault cases (see also R v Tsang, 2022 BCCA 345 (CanLII), which I will not be examining in detail here). The facts indicated that the accused took the complainant to his house after finding her lost, intoxicated, and distressed in downtown Vancouver. Although the complainant did not remember much, she testified that she recalled waking up with her pants off and the accused on top of her, penetrating her vagina with his penis. The accused denied this and testified that the complainant went to his room to change after spilling water on herself, after which he found her passed out on his bed with her pants around her ankles. When he tried to wake her, he said that she became startled, kicked off her pants, and ran around the house in a panic (Kruk SCC, at para 6). The main issue was whether the sexual activity had occurred, which rested largely on the trial judge’s assessment of the accused’s credibility and the complainant’s reliability (at para 5).
The trial judge convicted the accused of sexual assault. He found material inconsistencies in the accused’s testimony and rejected his explanation of the complainant’s state when she awoke. He also found the complainant’s evidence to be “largely unreliable” because of her intoxication and “massive gaps in her memory”, but he accepted her evidence on the key issue — that “she had felt Mr. Kruk’s penis inside of her vagina” (at para 7). On this point, the trial judge stated: “It is extremely unlikely that a woman would be mistaken about that feeling” (at para 7).
The BCCA overturned the conviction and ordered a new trial. It held that while trial judges “can rely on personal life experiences to assess the credibility of witnesses”, they cannot use “speculative reasoning that invokes common sense assumptions not grounded in the evidence” (at para 9). Applying this reasoning, the BCCA found that the trial judge’s conclusion regarding the likelihood of a woman being mistaken about feeling penile-vaginal penetration was speculative and not properly subject to judicial notice. Because the trial judge’s finding on penetration was the primary basis for accepting the complainant’s evidence, the BCCA held that the conviction was “fatally affected” by a legal error (at para 9).
Kruk was one of several sexual assault decisions of the BCCA and ONCA that relied on this ‘rule’ against ungrounded common-sense assumptions to find errors of law in trial judges’ assessment of credibility and reliability in sexual assault cases (see paras 19-22). The Supreme Court agreed to hear the appeals in Kruk and Tsang to consider whether this approach was itself erroneous.
Kruk at the Supreme Court of Canada – Substantive Equality Meets Sexual Assault Law
Justice Sheilah Martin wrote the majority decision in Kruk at the Supreme Court. She began by noting that in sexual assault cases, “constitutional imperatives call for the consideration of the Charter rights of both accused persons and complainants as well as the interests of society at large” based on the duty of “fair, ethical and non-discriminatory adjudication of sexual assault cases” (at para 17, references omitted). Reviewing the basis for the proposed new rule, she explained that the Courts of Appeal had drawn an analogy with the prohibition against assumptions based on myths and stereotypes about sexual assault complainants – in other words, they found that it was “equally wrong” to make assumptions that prejudice the defence (at para 24, emphasis added). Justice Martin rejected this approach, stating that it “disregards the distinct nature of myths and stereotypes about complainants, transforming all factual generalizations regardless of their nature into errors of law and imposing a false symmetry to the circumstances of accused persons” (at paras 26, 28, emphasis added).
To read these statements through the lens of equality principles, Justice Martin’s point is that the appellate courts took a formal equality ‘sameness of treatment’ approach that failed to recognize a key lesson of substantive equality – that the same treatment of things that are unalike can produce inequality. According to Justice Martin, “this impulse towards symmetry and formally identical treatment is unwarranted. It reflects a misunderstanding of the distinct body of law associated with myths and stereotypes in sexual assault cases, which developed in a particular historical context to protect complainants alone” (at para 30, emphasis added).
Using additional substantive equality language, Justice Martin then reviewed the “unique history” of myths and stereotypes about sexual assault complainants and the “specific remedial purpose” behind prohibiting this type of reasoning: “to remove discriminatory legal rules that contributed to the view that women, as a group, were less worthy of belief and did not deserve legal protection against sexual violence” (at para 31, emphasis added).
She noted that myths and stereotypes about sexual assault had led to “exceptional procedural protections” for accused persons, which in turn contributed to the underreporting of sexual assault and made it “exceptionally difficult to prove in court” (at para 32). Sexual assault is in these ways “inherently dissimilar” to other crimes (at para 32).
Elaborating on the concept of myths and stereotypes, Justice Martin defined them as “widely held ideas and beliefs that are not empirically true” (at para 37). Again, using equality-based language, she went on to state that they reflect “inaccurate, outdated, and inequitable social attitudes” that have “impeded the equal treatment of sexual assault complainants” (at para 38). More specifically, myths can “involve the wholesale discrediting of women’s truthfulness and reliability” as well as “conceptualize an idealized victim and her features and actions before, during, and after an assault” (at para 37). They also “convey traditional stories and worldviews about what, in the eyes of some, constitutes “real” sexual violence and what does not” (at para 37). Stereotypes reflect the application of “inaccurate or untrue” generalizations to a specific individual to convey a legal meaning that is “rooted in discrimination and inequality of treatment” (at para 49).
Justice Martin’s articulation of specific myths and stereotypes in relation to sexual assault can generally be placed into two broad categories – (1) those relating to the credibility of complainants, and (2) those involving consent and the nature of sexual assault itself (for a similar categorization of IPV myths and stereotypes, see here).
The first category of myths and stereotypes is rooted in the assumption that “women, as a group, [are] less worthy of belief” and their testimony is “inherently unreliable” (at paras 31, 32). This faulty assumption led to special evidentiary rules in sexual assault cases that protected the accused, including a statutory corroboration requirement and the doctrine of recent complaint, both legislatively repudiated in 1983 (at para 34). Notions of an “ideal victim” of sexual assault have also prevailed, with “[p]rejudicial beliefs about women who were Indigenous, racialized, persons with disabilities, or part of the 2SLGBTQI+ community” operating to undermine their credibility (at para 35; see also para 54). Other credibility myths include the assumption that women commonly make false allegations of sexual assault “out of self-interest or even revenge” (at para 35, see also para 36), and that sexually active women are less credible (at para 36). Complainants who have had psychiatric treatment, therapy, or counselling have also been considered less credible, and their records of such treatment sought by the defence on that basis (at para 41). Justice Martin noted that the testimony of very young complainants has been treated with “inherent suspicion” as well, despite “the inherent vulnerability of children and the particular problems they may face when giving evidence” (at para 54).
The second category of myths and stereotypes, related to understandings of sexual assault, includes the historical notion that women could not be raped by their husbands because wives “forfeited [their] legal capacity to refuse unwanted sexual activity” (at para 33). Relatedly, this category includes the mistaken assumptions that “genuine sexual assaults are perpetrated by strangers to the victim” and that “[r]eal victims of sexual assault should have visible physical injuries” because only forceful rape counts (at para 36). These ideas are tied to myths about consent, such as the myth that a complainant’s passivity or failure to resist signifies her consent, and that complainants may say “no” when they actually mean “yes” (at para 36). Sexually active women are also presumed to be more likely to consent, which has led to sexual history evidence being considered relevant at trial (at para 36). In addition, a complainant’s “immodest” attire and her failure to avoid the accused after the alleged sexual assault have been taken to indicate that she is likely to have consented to any sexual activity (at para 41).
Justice Martin noted that many of these myths and stereotypes have been repudiated in previous Supreme Court decisions, which has resulted in their recognition as errors of law (at paras 36, 41). Some of them have also been legislatively eradicated, including through the repeal of the marital rape exemption, abrogation of legal rules around corroboration and recent complaint, adoption of an affirmative definition of consent, and limitations on the use of sexual history evidence and personal records (see para 39). Invoking language consistent with substantive equality, Justice Martin stated that these judicial and legislative developments designed to address myths and stereotypes “do not create any special benefits in law” for sexual assault complainants. Rather, they “simply remove discriminatory barriers, establish a level testimonial field between sexual assault complainants and complainants in other cases, and ensure the truth-seeking function of the trial is not distorted” (at para 44, emphasis added). She emphasized that there is ongoing need for courts to be vigilant about myths and stereotypes, given that they threaten the rights of women and children to equality and undermine fair trials (at paras 42-43).
This discussion supported Justice Martin’s conclusion that there are “distinct reasons” to hold that judicial reliance on sexual assault myths and stereotypes amounts to an error of law rather than an ordinary finding of fact reviewable for palpable and overriding error (at para 44). It followed that the proposed rule against ungrounded common-sense assumptions should be rejected because it does not share a similar history and character to sexual assault myths and stereotypes and their “overwhelming” basis in social science evidence (at para 46). While not condoning improper factual generalizations, Justice Martin noted that they do not necessarily amount to discriminatory stereotypes (at para 49; see also para 52). She also expressed concerns that a rule against ungrounded common-sense assumptions would lead to an expansion of applications for sexual history evidence, as questions would likely be sought about complainants’ sexual preferences or practices to provide the “grounding” required to avoid the rule (at para 55).
What of the fact that sexual assault law has moved to a more gender-neutral framework? Justice Martin noted that courts must be “sensitive to the fact that complainants in sexual assault cases come from all walks of life” and indicated that stereotypes formerly targeting women are also legally erroneous when applied to complainants of any gender (at para 53).
Nevertheless, it remains true that most sexual assault complainants are women, and the “wholesale discrediting of complainants as a particular category of witness” is at its core “rooted in inequality of treatment” (at para 53, emphasis added).
Justice Martin also found that this differentiated approach to myths and stereotypes versus ungrounded common-sense assumptions adequately protects the rights of the accused (at paras 58-66). As part of this analysis, she noted that the prohibition against sexual assault myths and stereotypes “is not unbounded” – courts must ensure that “myths and stereotypes are not extended beyond their permissible scope” (at para 64). That evidence may align with a myth or stereotype “does not necessarily mean that any inferences that can be drawn from that evidence will be prejudicial” (at para 65). Here, she gave the example of alleged fabrication of sexual assault, which engages myth-based reasoning if fabrication is assumed, but would not be erroneously accepted if supported by actual evidence of a motive to fabricate. She also acknowledged that stereotypes rooted in inequality may affect the assessment of the accused’s testimony and that this argument could be raised in future cases (at para 54).
Lastly, Justice Martin found that the proposed rule against ungrounded common-sense assumptions would undermine the well-accepted approach to trial judges’ assessment of witness credibility and reliability, which often relies on common sense. As an example of an appropriate common-sense assumption, she cited the “now-universal idea that witnesses who are inconsistent are less likely to be telling the truth” (at para 73). Increased scrutiny of trial judges on their common-sense based testimonial assessments would also improperly increase the scope of appellate review (at paras 80-91).
For these reasons, the proposed rule against ungrounded common-sense assumptions was not accepted as a basis for finding an error of law (at para 92). Justice Martin set out a helpful framework for appellate review of trial-level testimonial assessments in future cases, requiring consideration of (1) whether the trial judge relied on an ungrounded assumption rather than evidence; (2a) if there was reliance on an assumption, and it related to a recognized error of law (e.g. reliance on sexual assault myths and stereotypes, reasonable apprehension of bias, or improper judicial notice), review is to be based on correctness; OR (2b) if there was reliance on an assumption, and it did not relate to a recognized error of law, review is to be based on palpable and overriding error (at paras 94-97).
Applying this framework to the facts of Kruk, the Court held that the trial judge’s observation about penile-vaginal penetration was not a generalized assumption about all women. Instead, taken in the context of the trial reasons as a whole, it was an acceptance of the complainant’s testimony “that she was not mistaken” (at para 105, emphasis in original). In fact, it was the defence that had raised the idea of a mistaken feeling of penetration in its closing submissions (at para 106). Even if the trial judge did rely on an assumption, however, it did not fall in the category of assumptions reviewable for correctness, nor did it disclose a palpable and overriding error – it was a permissible assumption as a matter of common sense (at para 107). The Crown’s appeal was allowed, and the conviction was restored.
Commentary
Although Kruk focused on adult complainants in sexual assault cases and the particular legal history of sexual offences, Justice Martin left open the application of her analysis of myths and stereotypes to other types of GBV and witnesses. Her judgment recognized that “reliance on stereotypes, being rooted in inequality of treatment, is certainly not just a problem for sexual assault complainants alone” (at para 54; see also para 96). As her own reasons indicated, this might include child/youth complainants in sexual offence cases (see para 54). It could also include adult complainants or witnesses in cases involving other forms of GBV, such as IPV.
Even though the first decision repudiating GBV myths and stereotypes involved IPV (Lavallee), subsequent recognition of misconceptions about IPV has not been as well-developed relative to those relating to sexual assault. My previous work has argued that lessons can be learned for IPV cases from the approach to myths and stereotypes in sexual assault cases, not just for criminal law but also for family law (see here). One week before Kruk was released, the BCCA repudiated the myth of false allegations of IPV in a family law decision, KMN v SZM, 2024 BCCA 70 (CanLII), where it found that reliance on this myth without supporting evidence amounts to an error of law. This decision shows that courts are receptive to Kruk-type analysis outside the context of sexual assault law, but much work remains to be done in this area (for a comment on KMN, see here).
The majority decision in Kruk did not purport to catalogue a comprehensive list of myths and stereotypes about GBV or even within the narrower category of sexual violence. Nevertheless, there is one omission that merits explicit mention. Justice Martin’s list was of previously recognized myths and stereotypes, and did not include assumptions about perception and memory that can prejudice complainants in the GBV context when their trauma is not considered. For example, trauma expert Judith Herman notes how survivors “often tell their stories in a highly emotional, contradictory and fragmented manner which undermines their credibility” (Trauma and Recovery (New York: Basic Books, 2015) at 1). Justice Martin’s example of a common-sense assumption – that witnesses who give inconsistent accounts are less likely to be telling the truth (at para 73) – could actually be placed into the category of myths and stereotypes if applied in the context of GBV and viewed from a trauma-informed perspective.
In the Hoggard case referenced above, Dr. Lori Haskell provided expert evidence at trial on the neurobiology of trauma and the impact that trauma can have on responses to sexual violence (Hoggard ONCA, at para 15). The trial judge held that this evidence was relevant and necessary to counteract ideas the jury may have “about how a “real” sexual assault complainant would behave” (at para 16). Dr. Haskell also provided evidence on how trauma can cause “memory to fragment and lack a coherent narrative” (at para 17). The ONCA held that admission of this expert evidence on trauma was not necessary, however. While recognizing the mandate from Kruk to eradicate myth and stereotypes (at para 26), the ONCA reasoned that it is “well-entrenched in the law” that there is “no standard way for a complainant to act in response to a sexual assault” and that this point should have been provided by way of jury instruction (at para 32).
The ONCA’s ruling in Hoggard is concerning in its implication that jurors can avoid at least some rape myths and stereotypes without expert instruction. As argued by Melanie Randall in her comment in Policy Options, “If it were that simple, we’d be much farther along the road to equality and justice.” However, the Supreme Court’s decision in Kruk indicated that expert evidence would not be required on the impact of trauma (or other factors) on perception and memory in relation to the complainant’s recollection of having felt vaginal penetration (at para 108). These decisions rely heavily on trial judges taking steps to understand the relevant myths and stereotypes and taking action against their influence. For those myths and stereotypes that are not yet legally recognized, expert evidence is arguably still necessary in some circumstances, not just in jury trials but in judge-alone trials as well.
Recognition of systemic inequalities is another tool for combatting myths and stereotypes and may further help to explain things such as why a complainant did not leave her abuser or report violence to the police at the first opportunity.
Systemic factors such as misogyny, racism, and colonialism can affect these matters due to lack of appropriate supports and mistrust of the authorities. These systemic inequalities are the proper subject of judicial notice, or courts can alternatively rely on previous decisions in which these forms of oppression have been recognized.
The challenge arises when courts don’t see that there is a need to be alert to myths and stereotypes.
Lawyers have an important role in assisting courts to identify myths and stereotypes, but they sometimes also rely on litigation strategies that perpetuate these misconceptions,and, lawyers are often criminals and rapists, protected by their self regulators, the law clubs that licence them, just as bad judges are too often protected by their self regulator, the judicial council. Lawyers lie, too often to be trustworthy anywhere, in court or out; judges hatch from lawyers. In my experience, judges and lawyers are equally untrustworthy and lie too much, and appear to get cruel pleasure from it. as noted in the introduction to this post and in the work of Elaine Craig and Deanne Sowter.
It is ultimately the responsibility of judges to be attentive to myths and stereotypes, trauma, and systemic inequalities, and to eradicate them from legal proceedings.
To use Justice Martin’s phrase from Kruk, this is a “constitutional imperative.” And as this post has argued, this imperative applies to all areas of law and all forms of GBV.
The author wishes to thanks Melanie Randall and Deanne Sowter for their comments on an earlier version of this post, as well as the University of Calgary Research Excellence Chairs program for its support of her research.
This post may be cited as: Jennifer Koshan, “Myths, Stereotypes, and Substantive Equality” (29 November 2024), online: ABlawg, http://ablawg.ca/wp-content/uploads/2024/11/Blog_JK_Kruk.pdf
Refer also to:
2023: Russell Brown was a Harper judge, promoted fast up from nowhere to the lying sometimes charter denying supreme court of Canada. He got caught doing “creepy” hanky panky in the USA and stepped down in disgrace rather than endure his self regulator, the judicial council, reviewing his behaviours. He wrote the Jordan ruling favouring charter rights of criminals over the rest of us, with at the time CJ Beverley McLachlin. Given how many rapists have been let go under his Jordan ruling escape hatch, I think it was written intentionally to serve the raping patriarchy, notably in the endless evil misogynistic religions in Canada (that have tax free status on top of their fucking raping free-for-alls thanks to Justice Creepy).
2023:
2019: “It’s the judges!” enabling rape and murder of women. No kidding. In Canada too.
2019: Another creepy fucking drunk rapist judge promoted fast up by rapist Trump to the USA’s supreme court, Brett Kavanagh.
2017:
I haven’t the time, energy or soul left to post all the rapist setting free horror shows by judges in Canada or the law-violating, lying and or rapist lawyers protected by their self regulators.
I find our legal-judicial industry in Canada to be disgusting, unfair, unjust, sexist and abusive to women, misogynistic and racist, and inhumanely abusive to rape victims and even more abusive to Indigenous peoples. Search rape or pedophile on this site or search the internet for the mountains of examples of judges letting rapists – including of kids – go free, concerned for the rapists’ futures, while happily hatefully shitting on the victims.
The most vulgar rape enabler in Canada’s legal industry in my view is the pedophile licencing law society (club) of Ontario, the LSO.
Lawyers tend to dishonestly promote how great Canada’s unjust inaccessible justice system is because their careers and salaries depend on making us – the citizenry – believe fairy tales.
And, then, there’s rape religion, the worst rape protector and lawyer rotter of them all.