October 30, 2016

Victim stereotypes in professional regulation

Administrative Law
Professional Regulation

Recent, high-profile cases like that against Jian Ghomeshi highlight the problem of victim stereotypes, which bundle assumptions about how women “normally” respond to sexual misconduct, and may lead to women who do not conform to stereotypes seem less credible. Courts have now recognized for some time that these myths have no place in law, but this does not prevent defendants from invoking stereotypes. For example, Justice Zuker, of the Ontario Court of Justice, recently issued a strongly-worded judgment railing against stereotypes, and providing examples of how certain assumptions continued to be used to discredit sexual assault complainants: R. v. Ururyar, 2016 ONCJ 448. Justice Zuker referred to pervasive myths about “the ‘good’ rape victim, the ‘credible’ rape victim,” used to attack the credibility of complainants. [paras. 486-490 and 514].

Decision-makers risk error by unknowingly or inadvertently relying on long-standing assumptions about women and sexual assault. Even judges are not immune. The dangers of unquestioned assumptions are illustrated by the recent inquiry of the Canadian Judicial Council into the conduct of the Honourable Robin Camp, a former judge of the Provincial Court of Alberta. In 2016, the Council’s inquiry committee issued a citation alleging that, during a criminal trial, Justice Camp made comments that showed he was “incapacitated or disabled from due execution of the office of judge” [Notice of Allegations at para. 1]. Justice Camp was alleged to have “made comments which reflected an antipathy towards legislation designed to protect the integrity of vulnerable witnesses, and designed to maintain the fairness and effectiveness of the justice system” [para.1], and further, “made comments tending to belittle women, and expressing stereotypical or biased thinking in relation to a sexual assault complainant” [para. 6]. (The full Notice of Allegations may be found here.) Apart from the proceedings of the CJC against Justice Camp, his decision was reversed on appeal, with the Alberta Court of Appeal stating that, “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”: R v. Wagar, 2015 ABCA 327 at para. 4.

Even with courts being on guard for stereotypes, the mere prospect that stereotypes may play a role can undermine public confidence in a process. For example, after the release of Justice Zuker’s lengthy decision, the victim was quick to point out that, despite the verdict being a ‘huge victory,’ she is “tired of people talking to [her] like [she] won some sort of rape lottery because the legal system did what it is supposed to do.” (The victim’s public statement may be found here.)

The problem for regulatory bodies is the extent to which such stereotypes may impact decision-makers, especially inquiry committees and discipline committees. In regulatory law, as in criminal law, many complainants are women, and complaints may involve allegations of sexual misconduct. Stereotypes may come into play at various stages, including when screen committees must assess complaints. Stereotypes may arise through defence demands for documents relating to sexual or medical history, and during cross-examinations of witnesses and complainants. Respondents may also rely on stereotypes about where or when sexual misconduct may occur. For example, in Ontario (College of Physicians and Surgeons of Ontario) v. Noriega, E. H, 2014 ONCPSD 31, defence counsel argued (unsuccessfully) that an allegation of sexual misconduct “was highly improbable in light of the involvement of medical students in [the] practice and nurses” involved in the complainant’s care. The committee in that case found that how a professional may behave when others are present does not indicate his or her behaviour when others are not present.

Regulatory bodies may take steps to address stereotypes.

1. Legal counsel acting for regulatory bodies may advise committees of how courts have accepted that certain stereotypes as discredited. However, stereotypes come in many different forms, and such arguments may be difficult to raise in any detail, given the many contexts and occasions where stereotypes may take root, especially if questionable stereotypes are not obviously present (until too late).

2. Regulatory authorities may also address stereotypes through expert evidence. Unfortunately, this is time-consuming and expensive. Rebutting stereotypes in a single decision could involve all of, or any combination of, identifying and hiring an expert witness like a psychologist, psychiatrist or social worker qualified to address the range of “ordinary” reactions to sexual misconduct; having that person write a report and testify; spending hearing time disputing about expert qualifications and admissibility; and spending hearing time where the expert is cross-examined.

3. Another option is training for both inquiry and discipline committees on a regular basis, so that members, new and old, may be educated and ready to recognize stereotypes implicit in their own views, or embedded in argument.

Given increasing public awareness of how the justice system treats sexual assault complainants, professional regulators should assess how their own processes may reduce the possibility of long-held but questionable assumptions and stereotypes that may taint decision-making. A proactive approach will help prevent decisions that rely on “stereotypical myths, which have long since been discredited.”