It’s been one year since the overturning of R. v Ururyar. There are still some major concerns I have with that hearing, that affect sexual assault trials as a whole.
Judge Dambrot dismissed Judge Zuker’s findings on the basis that he considered the verdict “incomprehensible” and that they didn’t clearly show how Ururyar was guilty of the crime he was charged with. However, a proper analysis requires knowledge of what happened during the trial proceedings itself.
As I have written earlier in “Why Judge Zuker was Just”, the verdict references all of the important points that were brought up in the trial itself, largely by Crown Prosecutor Jennifer Lofft. In her closing arguments, the Crown neatly skewered each and every one of the Defense’s arguments, leaving absolutely none of them standing. Because none of the Defence’s arguments (which hinged entirely on rape myths, and by extension relied on the hope that the Crown and Judge weren’t trained to separate myth from reality) stuck, there was no “reasonable doubt” raised, and so the natural conclusion was to reach a guilty verdict.
However, going by that logic, Ururyar hasn’t proved his innocence (in the rule of law, he doesn’t have to) – by that logic, he only failed to prove his accuser was lying. (In reality, his guilt was proven by the evidence (see my “Breakdown for Those Who Still Believe in Ururyar’s Innocence”), and his testimony was found to be inconsistent, constantly shifting, and unreliable.) This leaves a problem for the future falsely accused. What if, in the astronomically unlikely chance that someone is falsely accused of sexual assault, and it somehow goes to trial, AND the Crown prosecutor and Judge know better than to accept rape mythology as credible defenses? The accused cannot rely on mythology to support their arguments, and so leave themselves vulnerable to wrongful conviction. This is admittedly a troubling scenario, unlikely as it may be, and that alone warrants a change in the way sexual assault trials are conducted.
The other side of the coin is, using mythology as a defense puts the accuser in an unenviable position. Rape myths all boil down to “the accuser must be lying” and thus essentially counteraccuses the accuser with perjury. If the Crown and Judge don’t know better than to disregard this attempt to improperly misdirect the trial proceedings, the complainant is forced to, without representation, prove their own innocence of perjury before their evidence against their accused can even be considered. The complainant’s only job should be to provide testimony. The Crown’s job should be to find the relevant evidence from that testimony (with a trauma informed understanding) and present it to the court. If the defense chooses to rely on mythology and suggests the complainant is lying, rather than treat the evidence as truthful but not connected to the charges, the actual truthfulness of the complainant’s testimony will remain untested.
In Mandi’s case, the veracity of her testimony was proved through it’s consistency, both within itself and with what is known about trauma survivors. In Judge Zuker’s verdict, he spelled out why Mandi’s testimony remained credible and reliable, which resulted in him reaching a guilty verdict. It wouldn’t have been proper for him to say “yes, your testimony is sound, and the defense has not raised any reasonable doubt that the crime occurred by the defendant’s hands – but the defendant is not guilty, because even though there is no evidence, you just *might* be lying.” However, that is how a large percentage of rape trials end. It offers no hope of justice for rape victims, and makes a mockery of both the victims, and the justice system.
Rape myths have absolutely no place in the court room. They are dangerous both for the complainant and for the accused. Given these reasons, there is absolutely no reason why they should ever be invoked as a defense strategy.
by Stephanie Stella