Canadian Judge Asked Sexual Assault Victim Why She Couldn't Just Keep Her Knees Together
The Canadian Judicial Council announced Monday that it will review a Federal Court judge’s behavior in a case involving the alleged sexual assault of a 19-year-old woman, the CBC reports. At one point, Justice Robin Camp asked the complainant, “Why couldn’t you just keep your knees together?”
A complaint filed against Camp by four Dalhousie University and University of Calgary law professors describes him having “demonstrated absolute disregard and disdain for the affirmative definition of consent to sexual touching established by Supreme Court of Canada.”
According to the CBC, in the 2014 case, a 19-year-old woman accused a Calgary man, Alexander Scott Wagar, of sexually assaulting her at a party, over a bathroom sink. Wagar was acquitted.
Quoting from the trial transcript, the complaint against Robin states that he asked the complainant, “Why didn’t you just sink your bottom down into the basin so he couldn’t penetrate you?” He questioned “why she allowed the sex to happen if she didn’t want it” and theorized that, because she had asked the accused if he had a condom, that was “an inescapable conclusion [that] if you have one I’m happy to have sex with you.”
When a prosecutor tried to explain that this is not actually what consent means, Camp responded, “Please, Ms. Mograbee, we’re grown ups here.”
Elsewhere, according to the complaint, Camp responded to an attempt by prosecutors to explain what is known as the “reasonable steps” requirement for consensual sex in Canada—that is, that a person must take “reasonable steps” to ensure that sexual activity is being consented to, and that the absence of a “no” is not sufficient—with ugly sarcasm:
THE COURT: Are there any particular words you must use like the marriage ceremony?
MS. MOGRABEE: Yes, he must say — oh he could say a number of different things, but he must ask if she is willing to engage in the sexual activity —
THE COURT: He must ask to go that far?
MS. MOGRABEE: —he has — he must ask.
THE COURT: Where is that written?
MS. MOGRABEE: It’s in the case — all the case law that you have before you that sex — that —
THE COURT: Are children taught this at school? Do they pass tests like driver’s licenses? It seems a little extreme?
MS. MOGRABEE: The state of the law is at is, Sir. It’s all set out in the case law.
THE COURT: Well can you show me one of these places it says that there’s a some kind of incantation that has to be gone through? Because it’s not the way of the birds and the bees.
“Consistently, the legal rules that Justice Camp took issue with were those aimed at removing from the law outdated and discredited stereotypes about women and sexual violence,” the legal professors state. His conduct and statements “undermine public confidence in the fair administration of justice.”
The Alberta Court of Appeal ordered a new trial in the 2014 case last month.
“We are satisfied that the trial judge’s comments throughout the proceedings and in his reasons gave rise to doubts about the trial judge’s understanding of the law governing sexual assaults and in particular, the meaning of consent and restrictions on evidence of the complainant’s sexual activity imposed by (a section of the Criminal Code),” Justice Brian O’Ferrall wrote in the court’s decision, the Calgary Herald reports.
“We are also persuaded that sexual stereotypes and stereotypical myths, which have long since been discredited, may have found their way into the trial judge’s judgment. There were also instances where the trial judge misapprehended the evidence.”
Through the Federal Court, Camp issued a statement apologizing to the complainant for having caused “deep and significant pain,” as well as to any women who might feel disinclined to report sexual abuse.
“I am speaking particularly to those who hesitate to come forward to report abuse of any kind and who are reluctant to give evidence about abuse, sexual or otherwise,” the statement read. “To the extent that what I have said discourages any person from reporting abuse, or from testifying about it, I am truly sorry. I will do all in my power to learn from this and to never repeat these mistakes.”
The Federal Court said Camp, who, according to the Herald, was appointed to the Federal Court in Ottawa in June, is fully cooperating with the Judicial Council’s review and has undertaken a program of gender sensitivity counseling.
Photo via Andrew Balfour/Federal Court of Canada. Contact the author of this post: firstname.lastname@example.org.