In R. v. D.R., 2022 NLCA 2, January 7, 2022,the accused was charged with the offence of sexual assault, in relation to his granddaughter. After a trial, he was acquitted. The Crown appealed from acquittal, arguing that the trial judge erred in “assessing the complainant’s credibility by engaging in impermissible stereotypical reasoning”. In acquitting the accused, the trial judge made reference to the complainant having a strong and normal relationship with her grandfather.
The appeal was allowed and a new trial was ordered. The Court of Appeal indicated that “stereotypical reasoning in judicial decision-making rests on preconceived notions, assumptions or expectations, in other words, stereotypes or myths, about how people behave or ought to behave in given situations. The stereotype is essentially used as a standard against which a complainant’s behavior is measured and judged, and if the behavior does not conform to the stereotype, the complainant’s evidence can then be regarded as suspect, incredible, unreliable, or cause for reasonable doubt” (at paragraph 31).
The Court pointed out that the trial judge “rested his reasonable doubt on his conclusion that ABR had a strong and normal relationship with her grandfather up until she gave her statement in December 2016 and that their strong and normal relationship meant that her grandfather could not have been sexually abusing her” (at paragraph 34).
The Court of Appeal held that the trial judge’s “introduction of the strength and normality of ABR’s relationship with her grandfather as a step in his analysis of whether DR committed the offences as charged is obfuscating and diversionary. It has no place in determining whether alleged sexual abuse has occurred” (at paragraph 37).
The Court of Appeal concluded that the judge’s reasoning based on stereotypical assumptions (at paragraphs 39 and 40):
I agree that the Judge’s reasoning was based on a stereotype. The stereotype is that a victim cannot be happy to see her abuser if she is being abused by him. The stereotype is based on the assumption that a victim is unable to have any kind of “normal” relationship with her abuser respecting other interactions and activities unrelated to the abuse because the sexual abuse pervades all aspects of the relationship in a negative way, leaving no room for any positive, tolerant, or other feelings a victim may have about her abuser. The assumption fails to recognize the circumstances of the relationship between the particular victim and abuser. It also fails to recognize that a victim may take time to appreciate that what is happening is abuse (Benedet, at para. 28 above) or that a victim may deliberately act normally around the abuser, due to embarrassment, guilt, or denial (D.D., at para. 65), so as not to alert others to the abuse. Moreover, the stereotype has not been shown to have any foundation in evidence or principle.
Reliance on this stereotype when assessing the credibility of a complainant is particularly concerning when the sexual abuse is alleged to have taken place within a family or other close relationship that typically involves love and trust, and even more concerning when the complainant is a young child. Victims of sexual assault in these situations often attempt to normalize the sexual activity so as to be able to continue to cope within the family or other close relationship. Victims young and old may experience confusion and conflict between their feelings of discomfort with the abuse and dislike of their abusers, and their feelings of love and trust for their abusers. The stereotype is particularly invidious when the victim is a young child, who may not appreciate that the sexual activity is abuse.