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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.