Rooting out Stereotypes about Men in our Legal System

Rooting out Stereotypes about Men in our Legal System

On behalf of Neuberger & Partners LLP posted in Criminal Defence on Wednesday February 26, 2020.

While significant changes have been made to address stereotypes about women in our legal system, stereotypes about men continue to proliferate. The concept of “toxic masculinity” has grown in popularity with academics and the media but has no place in a court of law.

 

In a June 2019 decision, R v Cepic, the Ontario Court of Appeal ordered a retrial after the judge used myths about how men and women would behave to improperly bolster the complainant’s credibility. The trial judge rejected the accused’s testimony as “completely implausible and nonsensical” when he testified that the complainant was an aggressive participant in a lap dance that led to sexual intercourse in a VIP room at a strip club.

 

The prosecutor argued that the judge was “entitled to rely on common sense assumptions about basic human conduct” in reaching her decision. In most circumstances this position from prosecutors is reversed, warning judges that stereotypes and myths disguise themselves as “common sense.”

 

The Court of Appeal pointed out that “historically, these myths have operated to undermine a complainant’s testimony. But they may also operate in the reverse to artificially bolster a complainant’s credibility on the basis that ‘no young woman would consensually engage in the alleged behaviour.’”

 

The decision goes further to comment that “the trial judge also seems to have utilized stereotypes about male aggression.”

 

Men who are accused of sexual misconduct continue to face these kinds of myths about male sexuality. When they testify that the woman was the sexual aggressor in an incident they are often disbelieved based on preconceptions about female modesty or inhibition.

 

It is important for men who are accused of crimes with a sexual component to address and guard against these stereotypes at trial. Myths about male sexual aggression can reverse the burden of proof. Wrongful convictions in these types of situations tend to use language such as “self-serving” and “implausible” to reject any evidence that the woman was sexually bold or consenting to atypical behaviour.

 

The rejection of stereotypes must be universally applied and myths about how both men or women behave should not be advanced to undermine either a complainant or the accused. These pernicious assumptions about male sexuality need to be addressed as vigorously as the stereotypes of women and our courts are starting to address the reverse applications of myths.

 

The BC Court of Appeal also ordered retrials in R v Grant and R v Langan in December, 2019 on the grounds that Crown had misused evidence of the accused’s prior sexual history.

 

In Grant, the accused’s Tinder history with other women was improperly used to paint him as a promiscuous player who was more likely to rape. In Langan, which is being appealed to the Supreme Court of Canada, the majority ruled that prior sexual relationship evidence was improperly admitted. “While there was no apparent prejudice to the complainant, had there been an acquittal, clearly on the principles in Goldfinch this would have necessitated a new trial.”

 

The Supreme Court’s decision in R v Goldfinch made clear that evidence of a sexual nature must be vetted in advance regardless of whether it is introduced by defence or by the Crown. It is important that defence lawyers keep up to date on new decisions that reinforce the rights of an accused in sexual assault cases which have become fraught with complex rules of evidence.

 

Fallacious arguments about both men and women undermine the advances made by our legal system to address gender discrimination. While the courts have been slower to address how these myths and stereotypes have been employed against men, it is essential to a successful defence team to identify and root out the reciprocal myths which have threatened to shift the burden of proof in criminal trials.

Share on:

Leave a Reply

You must be logged in to post a comment.

ARCHIVES

CONTACT INFORMATION

1392 Eglinton Avenue West
Toronto, ON M6C 2E4
Fax (416) 364-3271

COVID-19 UPDATE

On behalf of Neuberger & Partners LLP posted in COVID-19 on Tuesday March 17, 2020.

At Neuberger and Partners, we are monitoring the COVID-19 situation and have implemented safety measures to ensure the safety of our clients and staff. Our priority is and always will be the health, well-being and safety of our staff, clients and colleagues.

We have put in place various measures to prevent and minimize the impact of COVID-19:

  • In addition to standard hand-washing habits, our staff are washing hands before and after every client interaction;
  • All individuals entering our office will be required to use our hand sanitizer to ensure the safety of our other clients and staff;
  • Regular disinfecting of our offices, public areas, meeting rooms and board rooms as well as increasing the frequency of disinfection of higher-traffic surface areas;
  • If a lawyer or client who has a scheduled meeting is feeling unwell, they will be strongly encouraged to stay home;
  • For the time being, we will avoid greeting clients and colleagues with our usual handshakes;
  • We will make every effort to ensure our firm will be stocked up with extra tissue and alcohol-based hand sanitizer; and
  • We will monitor and stay informed from the Government of Canada and World Health Organization for facts as they become available. We will ensure all staff and team members are educated on symptoms and are well informed on prevention and best practices.

Frequently Asked Questions:

Will the firm still run if there are closures?

  • We are committed to assisting our clients. We remain open to assist our clients at this time (following aforementioned standards for health and safety). For clients who wish to communicate with our firm virtually, we have the technology for virtual meetings and are able to respond to the needs of our clients in a manner best to protect our staff and clients’ health.

Are staff and lawyers set up to work virtually?

  • All lawyers and staff are set up to work virtually and continue to assist clients and one another remotely. All lawyers are available via telephone, email and virtual video conferencing.

What is the court situation? How will we deal with court closures?

  • At this time, the Superior Court of Justice is closed from March 17, 2020 to June 1, 2020 – unless a judge orders otherwise.
    If you have a March matter, your matter will be postponed to June 2, 2020.
    April matters will be postponed to June 3, 2020 and May matters will be pushed to June 4, 2020.
  • Similarly, the Ontario Court of Justice will be closed for 10 weeks for all out of custody matters in criminal practice court. In custody matters will still be addressed. It is unclear if out of custody matters such as trials or preliminary hearings will continue since the courts have left this decision to the discretion of the judges. However, Bail courts will remain open for the time being.
  • The Court of Appeal for Ontario has suspended all scheduled appeals until April 3, 2020. But we are still able to file materials and apply for urgent appeals to be heard.
  • We will advise clients by email of their next Court date.

How can payments be made?

  • Payments can be made via e-transfer and visa payments can be made over the phone.

If I have to deliver something to my lawyer, how shall I go about it?

  • For clients who wish to drop off documents but do not wish to come in contact with any one at the firm, you are encouraged to drop them off in our mail slot in front of our office.

We will be open and available for any questions, comments or concerns. Please call (416) 364-3111 for any further information.

Stay safe and healthy,

Joseph Neuberger