New sexual assault trial ordered on grounds Edmonton judge relied on myths, stereotypes
'This appeal represents an example of how deeply ingrained and seductive these myths and stereotypes can be'
An Edmonton-area man found not guilty earlier this year of sexually assaulting his stepdaughter will stand trial again, following a decision by the Alberta Court of Appeal Wednesday.
In a split decision, the three-judge panel ordered a new trial after finding the original judge relied on myths and stereotypes in the behaviour of sexual assault victims.
A publication ban prevents naming either the stepdaughter, now an adult, or her 55-year-old stepfather.
During the trial in February 2016, the stepdaughter told Justice Terry Clackson her stepfather sexually assaulted her on a regular basis for six years, beginning when she was in Grade 4.
Judge made a mistake, panel says
At trial, Clackson said he had doubts about the stepdaughter's allegations after she described her relationship with her stepfather as "OK, I guess."
She had also told police the two of them "kind of" got along.
In finding the stepfather not guilty, Clackson said he would have expected some evidence that the stepdaughter was trying to avoid her stepfather.
"As a matter of logic and common sense, one would expect that a victim of sexual abuse would demonstrate behaviours consistent with that abuse or at least some change of behaviour such as avoiding the perpetrator," he said in his decision.
Alberta's highest court said Clackson clearly made a mistake in law when he relied on an impermissible stereotype or myth about the behaviour of sexual assault victims in assessing the stepdaughter's credibility.
'Deeply ingrained and seductive'
"This appeal represents an example of how deeply ingrained and seductive these myths and stereotypes can be," the appeal court said in its written decision.
"To suggest that stereotypical thinking is merely logic or common sense is a licence for it to continue unmasked and unabated," the court said.
Justice Frans Slatter dissented with his two colleagues.
"Trial judges are entitled to rely on logic and common sense, so long as inferences are not based on stereotypical thinking," he wrote.
The man was ordered to stand trial on three counts of sexual assault.