Myths and stereotypes about sexual assault victims have no place in a rational and just system of law. Relying on myths and stereotypes to assess the credibility of complainants jeopardizes the court’s truth-finding function.

 R. v. A.G., 2000 SCC 17, [2000] 1 S.C.R. 439, at para. 2.

Reliance on discredited stereotypes in the assessment of credibility is an error of law.

                A.R.D., 2017 ABCA 237, at para. 9.

Dress

The stereotypical assumption that “if a woman is not modestly dressed, she is deemed to consent” no longer finds a place in Canadian law”.

 R. v. Ewanchuk, 1999 SCC 71, [1999] 1 S.C.R. 330.

In R. v. Lacombe, 2019 ONCA 938, the complainant wore loose-fitting pajamas with no bra or underwear when she met the accused on two successive occasions during which, she claimed, the accused sexually touched her without her consent. The trial judge, in his assessment of the complainant’s credibility on the issue of whether the complainant had consented to the touching, found the complainant’s state of dress to be “significant” (though he did not explain how). On a successful Crown appeal, the Court of Appeal for Ontario concluded that the trial judge had relied on impermissible reasoning:  the significance that the trial judge imputed to what the complainant chose to wear when she interacted with the accused relied on impermissible reasoning, as it was rooted in a discredited stereotype.

Dress does not signify consent, nor does it justify assaultive behavior.

R. v. Lacombe, 2019 ONCA 938, at para. 39.

Stuart O’Connell, O’Connell Law Group (All rights reserved to author).