Edmonton judge relied on rape 'myths and stereotypes,' Crown argues

An Edmonton superior court judge has been accused of relying on rape "myths and stereotypes" to acquit a 55-year-old man of sexually assaulting his stepdaughter.

The Crown has asked the province's highest court to overturn the acquittal and order a new trial. The Court of Appeal of Alberta heard the case on March 1, but has not yet issued its decision.

The Crown argues that Court of Queen's Bench Justice Terry Clackson relied on "myths and stereotypes" to assess the now 18-year-old girl's evidence and made "a stereotypical assumption as to how a victim of sexual abuse ought to respond to her abuser."

Clackson said he had doubt about the allegations made by the girl.

When she testified at her stepfather's trial, she described her relationship with him as "OK, I guess." She had also told police the two of them "kind of" got along.

That didn't make sense to Clackson. He said that based on "logic and common sense," he expected a victim of sexual abuse would demonstrate some sign of being sexually abused, or at the very least would try to avoid the person who was abusing her.

That "incongruity" was significant enough to leave him in doubt about the allegations. It led to Clackson finding the stepfather not guilty of three criminal charges.

Girl said assaults went on for 6 years

The identities of the stepfather and his stepdaughter are protected by a court-ordered publication ban.

The girl said her stepfather began to inappropriately touch her when she was in Grade 4, right after her family moved in with him.

She described him touching her under her clothes two or three times a week, from the time she was 10 years old. She also described an incident when he removed their clothes, climbed on top of her and began to grind against her until he climaxed.

"At any point during any of these incidents, did you give him permission to touch you in that way?" prosecutor John Schmidt asked the girl at the preliminary hearing.

"No," she replied. "I didn't say anything."

• Justice in 'knees together' case resigns
• Blistering rebuke of lower court sex-assault decision

Defence lawyer Michael Marcovitch grilled the girl over why she didn't ask for help when she was being assaulted while others were in the house.

"Because I didn't think I could," she said. She explained her stepfather always warned her "not to tell anyone." She also said she really didn't want anyone else to know what was happening.

"Because it changes everything," she said.

The girl finally went to her mother, then to police in July 2014. She was 16 years old.

Stepfather denied any wrongdoing

The stepfather took the stand in his own defence at his trial and insisted he never had an opportunity to sexually assault his stepdaughter because he was never alone with her.

Clackson decided that claim was "unworthy of belief" and rejected the stepfather's evidence as "incredible" and "ludicrous."

The judge also concluded the girl did not exaggerate when she was testifying. While he was delivering his oral decision, he reminded himself not to fall into stereotype traps about the way a sexual assault victim is expected to act.

But her evidence about how she got along with her stepfather left Clackson with reasonable doubt.

In documents filed with the Court of Appeal, the Crown points out it was equally likely the girl kept pretending everything was normal so she could avoid being questioned about her relationship with the stepfather.

The Crown quotes another court decision that stated "even children who are victims of heinous crimes will cling to any shred of normalcy."

By contrast, Dane Bullerwell, the defence lawyer handling the appeal, insists it was not an error of law for the judge to rely on his "reason and common sense," because "this is what trial judges do every day."

No expert evidence heard

The only two people who testified at the short two-day trial were the accused and his stepdaughter.

Clackson did not hear from any experts before making his decision.

According to one expert CBC spoke to, there is no one-size-fits-all answer on how a victim should or could behave.

"Everybody responds differently," said Kimberly Clark, director of the Zebra Child Support Services program.

Last year, the Zebra Child Protection Centre saw more than 1,500 children.

"Trauma can impact so severely that that desire for normalcy is certainly something that we've seen," Clark said.

"Everybody has a different response to their trauma. And we know that 98 per cent of the offenders are known to the children and youth. So what that looks like post-offence looks very different for everybody."