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MANDEL: Sex assault acquittal overturned after judge use ‘discredited rape myths’


She didn’t dress the way he’d expect. She didn’t react the way he’d expect.

She simply didn’t behave the way an Ontario judge expected a sexual assault victim to behave.

After all these years, some on the bench are still trapped in biases of the past. And so Ontario Court Justice Peter J. Wright acquitted the man on trial, finding Richard Lacombe hadn’t twice assaulted his neighbour who lived in an assisted care residence for persons with disabilities.

Among the many factors he found significant?

“She dressed in a loose fitting pyjama top with no bra and underwear, engaging with a man that she really did not know well at all, including significant French kissing.”

The Ontario Court of Appeal has overturned that 2017 acquittal and ordered a new trial, finding the trial judge’s analysis was tainted by “long-discredited myths and stereotypes about sexual assault complainants.”

According to the woman, her neighbour knocked on her door and invited her out for a cigarette on the fire escape. As they chatted, she claimed he began touching and pinching her breasts. She asked him to stop but he just laughed, she said, and put his hand down her pants and rubbed her hard.

When he French kissed her, she kissed him back because, she said, he wasn’t listening to her and she feared he would hit her.

When she went back to her room, she saw that he’d caused her to bleed. She was too terrified to tell anyone.

The following evening, the second alleged assault took place under virtually the same circumstances. She agreed to meet him for a smoke because she was afraid of his reaction if she turned him down, she explained. She became more frightened when the man allegedly got angry when she refused to masturbate him.

This time, though, she complained to her boyfriend and a girlfriend. She listened to their advice and called police.

Lacombe’s story was far different. He said she was the one who came to his room, flashed her breasts and asked him to touch her. But besides that brief consensual touching and a further “peck on the lips” the following night, he insisted nothing else happened between them.

The trial judge listed 11 factors that made him question the woman’s credibility, including the way she was dressed, her failure to leave the situation at once or to immediately report what happened.

He then invoked “common sense and life experiences” to conclude that he should reject her version of events.

The Crown appealed and a Superior Court judge upheld Lacombe’s acquittal.

The Crown appealed again and this time, Ontario’s highest court agreed a retrial was necessary because the judge was working from an outdated lens of “rape myths.”

“Dress does not signify consent, nor does it justify assaultive behaviour,” wrote Justice Sarah E. Pepall on behalf of the three-judge panel. “As such, it had no place in the trial judge’s assessment of the complainant’s credibility and reliability.”

Nor should he have placed any weight on her not immediately telling friends or police.

“The myth that a sexual assault complainant is less credible if she does not immediately complain is one of the more notorious examples of the speculation that in the past has passed for truth in this difficult area of human behaviour and the law,” Pepall wrote, quoting a decision already a decade old.

The appeal court was also critical of the trial judge for questioning why the complainant would have kissed Lacombe and not left.

“There is no rule as to how victims of sexual assault are apt to behave,” Pepall wrote in a stern rebuke. “He was comparing her conduct to conduct he expected of a sexual assault complainant without giving any consideration to her evidence of fear.”

Or as another judge once wisely stated: “These cases should never be decided on how abuse victims are expected to react by people who have never suffered abuse.”

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