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Overgeneralizations & Mythical Stereotypical Reasoning
Posted on September 18, 2020
R v Roth 2020 BCCA 240 is a sexual assault case where the accused was convicted at trial after the judge concluded the Crown had proven beyond a reasonable doubt that he committed the offence. The only issue at trial was consent and whether the sexual activity was consensual. This is likely one of the most important decisions for these types of cases to date.
On appeal, the appellant argued that the trial judge erred on applying the test of credibility. The Court of Appeal concluded that it was an error for the trial judge to subject the evidence of the defence to a more rigorous scrutiny than that of the Crown’s. The appellant argued that it was improper for him to have been cross-examined about “offensive stereotypes” or generalization about people who powerlift or are physically fit to assess his credibility.
The Court of Appeal agreed and noted that, as a matter of legal principle, it is wrong for a trial judge to make a negative finding based on a “stereotypical assumption or generalization” that is lacking in an evidentiary foundation. This is important because defence lawyers hear, on a daily basis, from the prosecution that “it is common sense” or that we can’t raise issues to cross-examine a complainant because what we are asking leads to a myth or a stereotype which is inadmissible.However, what is really important about this case is that finally, an appellate court is distinguishing an overgeneralization and the admissibility of evidence. At one point, the complainant was in a taxi, where she states that the non-consensual (in her version) sexual contact started. The trial judge wouldn’t allow her to be cross-examined about not reporting this to the taxi driver.
A key and critical piece of the reasoning by the British Columbia Court of Appeal is that the failure to report a sexual assault “may carry the potential for impermissible reasoning (but) it may also have a permissible role to play as a circumstance to consider in assessing the evidence as a whole. This is such an important declaration from an appellate court. It should arm your defence lawyer to pursue important lines of questioning so that the evidence that may protect you is admissible in evidence.
It is certainly prohibitory for a judge to assess a complainant’s conduct based on what one “would expect” to see from a sexual assault victim. To allow that expectation to inform the “reasoning process,” it is not improper to objectively assess a complainant’s conduct in the context of the specific facts of a case, even where that conduct may involve a complainant’s reaction to an alleged sexual assault.
It is critical that your lawyer understands how this law works and is up to date on the continually changing decisions. A decision like this could be vital as part of your defence and help achieve the outcome you deserve.
When you choose Ross Lutz Barristers, you can trust that we will defend you vigorously. Our firm is dedicated to staying up to date with the latest court decisions to build the defence you deserve. Contact us today for expert legal advice.