Sexual Assault Myths Persist in Court - M Filyk
Protecting the rights of individuals who are accused of horrific acts is an integral part of our criminal law system in Canada. Defending sexual assault is a very complicated task, even if it seems the defence is simple in itself. Honest but mistaken belief is one such defence, precedent is set at the Supreme Court of Canada for this as per Ewanchuk. 1 Every case of sexual assault is different, 2 there can be no magical precedent that makes establishing that an assault occurred a simple task. Protection around what defence are allowed to be used in sexual assault cases is not a new idea, as was proven in Daviault 3 and the subsequent alteration of the Criminal Code. 4 Some defences are valid, such as honest and mistaken belief, though some can still be tied to archaic rape myths about consent and are still allowed to be used.
It has long been established that implied consent does not exist within Canadian law. 5 Complications arise when verbal consent is given though the victim is not in the mental state to be able to do so. Those are the facts that pertain to R v KGP, a recent Manitoba Court of Queen’s Bench case in which the complainant had a dissociative identity disorder in which she was unable to control when she would “switch” into other states of consciousness. 6 The defendant was aware of the complainant’s mental health issues yet proceeded to engage in sexual intercourse with her during a “switching” event. It was found that the line of defence did not hold up and the accused was convicted of sexual assault. 7
The complainant and the accused were neighbours, they became friendly over time, living in the same apartment building. They had a relationship, one where the accused was fully aware of the mental health issues of the complainant and was even noted as being very supportive about them. 8 The complainant had a “switching” episode in front of the accused’s children and was afraid of what the accused had thought of her. 9 A few months later, and just a few weeks before the assault, the complainant had entered the hospital because of physical events which she thought were seizures. The accused had taken her there where she remained for 9 days, the complainant’s memory of this is foggy. Expert testimony pointed to their opinion of her having a dissociative personality disorder (DPD). 10 On May 13, 2018 the complainant slept over at the accused’s apartment and the next day had a seizure with the accused present, she told him she was going to switch, as she felt that was coming on. 11 This is where the memory of the complainant stopped and the video evidence that the accused recorded takes over. The video evidence was proof against the accused, as it outlines him coercing and manipulating the complainant into anal sex and displays the lack of awareness of the complainant. 12
The defence warned of the precedential weight of this case, they claim that convicting the accused would have negative implications on those whose sexual partners suffer from dissociative disorders. 13 I agree that this is a very serious potential impact, but I do not concede that this is relevant to the facts in this case. I also believe in protecting individuals with mental health concerns over individuals who could take advantage of that, which is what I believe to be the true nature of the accused’s actions. Putting forth a defence of honest but mistaken belief when the parties have a relationship, when they are intertwined in each other’s lives, can be a credible defence. In my opinion, the actions of the accused are more akin to an individual seeing an opportunity and taking it.
Two blaring issues of the defence presented themselves to me while reading the case; the accused videotaped the event as (in his own thoughts) proof that it was consensual 14 and it was argued that one of her personalities had consented, so that should count. 15 Regarding the first issue, the Judge mentioned it briefly in her analysis, stating “we could infer it was that knowledge that led him to videotape it,” 16 referring to the accused’s knowledge of the complainant’s unwell state. I found this to be striking while reading the case. Having to record an act to prove that it was okay—all the while incriminating yourself with that footage—shows that the accused was aware something wrong was occurring. Would a reasonable individual, who wants to engage in intercourse with their friend or partner, make evidence stating that it was above board for after the event? I would think not. Given the unwell state of the complainant and the overwhelming evidence that the accused knew about it, you would think the accused would take videos every time they engaged in intercourse. Past sexual encounters cannot be included as evidence for the regularity of their sex life, as assault can occur between anyone, but the conduct of the accused in past situations does have relevance. This was brought up in the judgement, in the fact that the accused had attempted to convince the complainant to engage in anal sex in the past, with no being the answer. 17 Honest and mistaken belief is hard to wrap one’s head around when it seems like an individual is in a position to get what they want. The video evidence includes coercion of an act the complainant in her regular state of mind had refused, this is predatory, not honest, not mistaken.
To say one of an individual’s personalities consented to sexual intercourse, so it should count as consent, displays an utter lack of understanding of what the situation at bar was. 18 This statement is extremely disrespectful to the complainant and to any individuals who have a disorder like DPD. The judge struck this down of course, relaying back to the expert testimony regarding the diagnosis of DPD of the complainant, but I believe that further condemnation of this type of reasoning should have occurred. If the defence is able to spout ideas about consent like this, it feels akin to victim blaming for reasons of intoxication. It could be argued that one, in a drunken state, would not have the requisite state of mind to confirm consent, even if they verbally said they consent, as occurred in the video evidence in this case. 19 I believe this line of defence should not be allowed concerning a case such as this. More protection of victims in sexual assault cases with severe mental health issues should be considered. This defence of course failed, but what damage was incurred by the victim in entertaining it as a thought to be struck down in the court? The rights of the accused demand that they are able to put forth some lines of defence, of course, but ideas about consent like this have been struck down previously, so why was it allowed to be included in this case in the present year?
Consent is not necessarily a topic that is contested in the courts anymore, as we are far past the days of Ewanchuk, but somehow a line of defence surrounding the validity of consent, when it is evident the mental capacity to consent was lacking, is still able to be used. This does not feel in line with the barring of implied consent in our legal system and should be re-evaluated to be used against individuals who have severe mental health issues.
1 R v Ewanchuk,  1 RSC 330 [Ewanchuk].
2 R v KGP,  MJ No 226, para 58 [KGP].
3 R v Daviault,  3 RCS 63, [Daviault].
4 Criminal Code, RCS 1985, c C-46, s 33.1
5 Ewanchuk, supra at para 31.
6 KGP, supra note 2.
7 Ibid, at para 61.
8 Ibid, at para 12.
9 Ibid, at para 16.
10 Ibid, at para 37.
11 Ibid, at para 27.
12 Ibid, at para 59.
13 Ibid, at para 51.
14 Ibid, at para 35.
15 Ibid, at para 45.
16 Ibid, at para 60.
17 Ibid, at para 31.
18 Supra, at note 11.