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GARY BOTTING

604-817-7428

garybotting@shaw.ca

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When rape is alleged, our courts should not rush to judgment

published July 14, 2020

The British Columbia Court of Appeal recently ordered a new trial for one of my appellant clients convicted of sexual assault, in an important appeal which chips away at R. v. W.D. – the standard “credibility assessment” case which sets rigid rules for determining credibility in a she-said/he-said confrontation.

Sexual assault is always a serious matter, but often in such cases, the presumption of innocence becomes a joke, with the benefit of the doubt invariably favouring the complainant–especially when that person is a young female.

The facts of this case are not particularly aesthetic – they never are – but the result speaks to the tendency of some pubescent girls to dramatize and exaggerate – and more importantly the tendency of trial courts to accept everything they say.

Presumptively innocent accused often claim to have no memory of events they insist did not happen, or of non-sexual events that have been sexualized – bent out of shape by those who have only recently become aware of their sexuality.

Men naturally get their backs up

Men placed in this situation, trying to defend their honour, their jobs and their relationships with the rest of their family, are bound to get their backs up in cross-examination. That leads the judge, who may not have had a great deal of worldly experience before reaching the bench, to dismiss their evidence out of hand.

The justice system frequently formalizes what starts out in foundering marriages as general whining by the pubescent child about a social situation that the teenage complainant wishes to change. All too often, the complaint ends with a footnote such as, “Not only that, but daddy did this…”, intended to bolster the teenager’s relationship with mom.

In this case, the female complainant had opted to stay with her father and grandfather, but got tired of her grandfather’s disciplinarian approach and earnestly wanted to stay with her mother and her new husband. To make her case, she told her mother that her paternal grandfather had touched her inappropriately.

Mother skeptical about abuse, at first

At first, the mother was skeptical, so the girl did not give her any details of the alleged abuse. She then approached her maternal grandmother and gave her the “goods” on her paternal grandfather, knowing that there was no love lost between them. This time, the by then pubescent 13-year-old girl added details that could not be ignored – alleging that five years before, when she was eight years old, her grandfather had anally raped her. The grandmother convinced the mother to go to the police. All three women gave statements – two of them hearsay of the “oath-helping” variety.

The story that the complainant was stuck with, now that her grandfather was charged with sexual assault and other related offences, was that while other family members were out of the house tending to her paternal grandmother, who had been hospitalized with appendicitis, the accused had invited her into his bedroom, had asked her to take her clothes off and lie down on his bed and then had anally raped her.

Testifying in court, she said of this seminal incident that it hurt, but that she didn’t remember anything else about the alleged incident: it was too long ago. She did not see his penis, and did not know what actually touched her body. Nor could she remember if there was penetration. But it definitely happened when she was eight years old, on the occasion when her grandmother went to the hospital to have her appendix out.

Hospital records contradict testimony

Hospital records showed that her grandmother was not hospitalized for appendicitis until a good year-and-a-half after the date claimed by the complainant. This did not seem to bother the judge, who tried to make sense of this clear anomaly in the complainant’s testimony.

From that point on, the complainant testified, her grandfather’s sexual assaults became frequent, and eventually, he touched her intimately nearly every day – even when other adults were around. She also testified that he masturbated in front of her daily. The female judge seemed to think that this activity was entirely plausible and found the complainant credible, while the accused, in denying these allegations, was not credible.

The trial judge accepted the complainant’s evidence, which more-or-less tracked what the complainant had told her grandmother – and the police. The complainant had the advantage before testifying in court of being allowed to review the narrative she had given to the police three years earlier.

The grandfather testified that as a former member of the military, he was a strict disciplinarian and insisted his granddaughter do her homework, and pull her weight to keep the home shipshape. The complainant was recalcitrant, leaving her grandfather to clean up messes in the kitchen and bathroom.

After she reached puberty, the grandfather kept on her case about cleaning up after herself – including properly disposing of her used sanitary pads. This appears to have been the catalyst for her first going to her mother to register a complaint against her paternal grandfather.

No going back after sex assault allegation is made

Once such an accusation is voiced and the police become involved, there is no going back. Trying to backtrack – to admit that nothing really happened that could be said to be of a sexual nature – can lead the complainant to be charged with pubic mischief if not perjury. This is a strong incentive to stick to the storyline through thick and thin, even if it is a tissue of lies and hyperbole.

Before trial, the complainant memorized the facts as set out in her statement and the police report. Her testimony in chief was therefore a straightforward account, impervious to cross-examination by the defence: she did not contradict herself. But the facts she was stuck with were themselves not credible.

The defendant denied every detail of the allegations against him. The theory of the defence was that the girl had wanted to move in with her mother, and in order to do so felt she had to paint a picture of abuse so graphic that, despite misgivings, her mother would take her in.

In cross-examination, the former staff sergeant, by then in his eighties, naturally became increasingly defensive. He was suffering heart problems – indeed, in the weeks following the trial he had a triple bypass – and the stress of the lengthy trial (it had stretched over several weeks because of his illness) took its toll on his patience. Having denied everything, he did not have much more to say.

In order to further undermine his credibility and thus bolster its R. v. W.D. argument, the Crown focused on minutiae that really had nothing to do with sexual assault. The two toilets, for example. One was his to use exclusively; the other, an adjunct to the master bedroom, was shared by the girl and her father. The grandfather said he never used or “went” in the ensuite bathroom. However, he had testified that he had had to clean up her messes in that bathroom. The judge found that this apparent inconsistency was a strike against his credibility: he had said he didn’t use or “go” in that bathroom, but he obviously had to “go” into the bathroom to clean it.

Court of appeal identified several errors

The court of appeal identified this as being one of several errors made by the trial judge – most of which would not have been fatal, given the broad net cast by the line of cases following R. v. W.D. However, the clincher for the court of appeal hinged on the date of the alleged initial rape – a graphic event that was not alleged to have been repeated in the five years they lived under the same roof. The trial judge had not a critical word to say about the fact that the complainant did not mention anything to anyone at the time, and there was absolutely no medical evidence to support her claim that she had been anally raped at such a tender age.

The final question revolved around whether the paternal grandmother had entered the hospital at all in May, rather than 19 months later when she had her appendectomy. The defendant said he wasn’t sure, but it was possible his wife was admitted for something else. His daughter, testifying for the defence, said that she was absolutely sure that her mother was not hospitalized in May: she had supplied the transportation whenever there was a hospital visit to emergency.

Hospital records did not show any admission for that time, but a medical report by a cardiologist several months later stated in a report that the grandmother had had a history of admissions to hospital. On this basis alone, the trial judge rejected the testimony of the defendant’s daughter as not credible.

However, she also rejected the testimony of the defendant in this regard – testimony that confirmed, or at least did not deny, the only evidence (besides the complainant’s) that the judge accepted: the vague hospital report that grandma had had several hospital admissions. From this, the judge concluded that it was possible she had been admitted in May – in which case, nothing turned on whether it was for an appendectomy. That detail could have just been a misunderstanding on the young complainant’s part.

It all comes down to credibility

The trial judge rejected the evidence of the complainant’s aunt but accepted the vague anecdotal evidence drawn from the cardiologist’s written notes. She also rejected the evidence of the accused even though it was consistent with the cardiologist’s reference to several hospital admissions. It followed that a different standard was used to measure the credibility of the accused compared to the credibility of the complainant.

None of this had to do with the credibility of the complainant’s assertion in the first place – that while her grandmother was away in hospital, her grandfather had anally raped her for several minutes, and that while she felt initial pain, there was no lasting injury and she did not at the time consider the alleged incident serious enough to complain about to either of her parents.

Nor was her credibility questioned by the judge with respect to her claim that, for years, her grandfather came on to her, touching her breasts and genitals, on many occasions when other people were in the house. Nor did the judge question the credibility of her testimony that, for years, her grandfather masturbated in front of her every day.

Understandably, the court of appeal ordered a new trial. However, R. v. W.D. remains a dangerous precedent that has seen a lot of men put behind bars on the say-so of pubescent teenagers with an agenda, reminiscent of the Puritan witch hunts of Salem.  

  • Gary Botting is the author of Wrongful Conviction in Canadian Law (2010), which examines Canadian commissions of inquiry into miscarriages of justice. The book’s foreword was written by David Milgaard, who was convicted of a murder he did not commit and spent 23 years in prison.