Alberta Case Highlights Issues of Consent and Sex Assault Victim’s Reactions

Sexual Harassment Prevention Montreal John Inder

Alberta Case Highlights Issues of Consent and Sex Assault Victim’s Reactions

You may have seen the recent article on CBC news by Janice Johnston, “Alberta judge delivers blistering rebuke of lower court sex-assault decision”. The July 26 article described how the ruling of a provincial court judge was overturned by Justice Juliana Topolniski of the Alberta Court of Queen’s Bench.

The original incident happened between two 15-year-olds in a high school. The boy twice made overtures toward the girl and touched her. In his third attempt he “grabbed her buttocks, then her breasts, and tried to kiss her as she tried to push him away and fend him off with a water bottle.” He tried once more outside the school, grabbing and hugging the girl.

The lower court judge gave weight to some aspects of the girl’s behavior. He noted how she tried to laugh off the initial approaches which, in his view, made her actions ambivalent. After the incident, the girl texted about what had happened to a male friend and attached an acronym for “laughing my ass off”. The girl later said that she worried that, had she not downplayed her message, her friend would have picked a fistfight with the accused.

I find three areas of interest are raised by this news item. The first one is described in the article, the second comes from jurisprudence, and the third relates to reactions that victims of sexual assault often have.

The first thing is the refreshing clarity of Topolniski’s overruling. She wrote; “Consent means “Yes”. The word “No” does not mean “Yes”. The word “No” coupled with fending off an attacker with a water bottle does not mean “Yes”. … Finally, the complainant’s state of mind after the incident is irrelevant to the question of consent. Indeed, the trial judge’s consideration of the complainant’s post-incident conduct is indicative of sexual stereotyping about how victims of sexual assault will behave.”

The second thing relates to one of Topolniski’s statements. She said, “Consent in the context of sexual activity is not a difficult concept.” While the concept that “No” means no is clear, I would not go so far as to say that there is never any difficulty with the concept of consent. The reason I say this is that, in certain circumstances, “Yes” or silence can also mean no!

This can be learned from the jurisprudence cited in Topolniski’s ruling. From R. vs. Ewanchuk of 1999, we see that “consent must be freely given”. This means that “ostensible consent” is not really consent if someone does not resist unwanted sex or touching “by reason of force, fear, threats, fraud or the exercise of authority.” This makes perfect sense. The logic is similar in the way we do not to accept a person’s confession obtained under torture. A victim may fear that any number of bad things will happen if they don’t play along with the designs of a dangerous looking person or a figure of authority. If you are in a position of power relative to a person that you want to have sex with, slow it right down and be sure any sexual relations are really consensual.

The third thing relates to the minimizing behavior of the complainant. The first judge found that the girl’s attempts to laugh off the first two “come-ons” and the groping, and her later text to her friend as revealing that the incident was not serious and did not really upset her. Topolniski set the first judge straight in saying that these things did not impact the legal issues. The first judge also needs to learn something of victim psychology.

If you hold some stock and its value plunges on the market, your first reaction might well be to try to minimize the stress of the situation by saying that these were only paper losses and to hope the stock will come back up again. This is a normal way of trying to protect yourself from psychological distress. The other option is to say, “I just lost my hard-earned money and I must have been a sucker to buy in at the price I did” which can be tough to admit at first. I am only trying to say that it is normal to try to soften the initial shock by downplaying how great a setback you just had. This is all the more true when something shameful and humiliating (and/or violent) has just happened. Distress from any form of sexual abuse hits the ego and the emotions much harder than a financial loss.

With rulings such as Topolniski handed down this summer, perhaps we are turning the corner in addressing complaisance toward sexual misconduct and sexual violence. We can only hope for this, and for a better understanding of victim’s various post-assault reactions.