The Hoggard decision is a step backwards for sexual assault trials

from Policy options. Originally published on Policy options
October 9, 2024

stereotypes and Rape myths Information about “real” victim responses continues to undermine justice in the criminal justice system. In an important one Decision When it comes to musician Jacob Hoggard, the Ontario Court of Appeal has taken a step back and made it more difficult to impartially handle sexual assault cases.

How did it do that? In August, the court found that criminal trials do not require expert evidence to explain the neurobiology of trauma. It argued that judges and juries already had “common ground” and recognized that “myth-based thinking should be eradicated.”

The question is: how to eliminate it? The court recognized the question but gave the wrong answer.

Hoggard is the disgraced former lead singer of the Canadian rock band Hedley. He was just acquitted from sexual assault and gag a young woman in northeastern Ontario. He also stands in front of you Civil action from a sexual assault victim.

However, the case in which the court has taken a step backwards is his 2022 conviction in Toronto for sexual assault causing bodily harm, for which he was responsible sentenced up to five years. He began serve his time last August, the day he lost his appeal against that conviction.

Judge Benotto rejected his appeal and called for a unanimous decision from the Court of Appeal. But the kicker was when Benotto said the trial judge made a mistake in allowing expert testimony on trauma.

Hoggard appeals to the Supreme Court of Canada.

Unless this regressive decision is overturned, the door will be slammed shut on expert evidence on the neuroscience of trauma in sexual assault trials in Ontario. It undermines an effective educational strategy that is necessary to help judges and juries avoid relying on the stereotypical thinking that defense attorneys like to employ Attack on the victim’s credibility in sexual assault trials.

Counter-intuitive reactions from the victim

In the Toronto trial, young complainant JB described Hoggart forcibly entering her body in various ways, causing her to bleed, spitting and slapping her, and calling her a “dirty little pig.” In the Trial in Northeastern Ontario, A woman similarly described Hoggard forcibly penetrating her, urinating on her and calling her a “dirty pig.”

JB didn’t flee the hotel room at the first opportunity. She described being afraid of what Hoggard had done to her and being too disoriented to leave immediately.

Freezing and delayed decision making are extremely common among victims of sexual assault. This so-called “failure to resist” is often misunderstood as consent.

Rape myths persist in court decisions

The misogyny of the so-called “rough sex” defense

According to an important ruling, there are still legal gaps when it comes to sexual violence in couple relationships

One of the deepest and most widespread misconceptions about sexual assault is that “real” victims immediately scream, fight back, seek help, or flee. But that’s exactly what does NOT typically happen when sexual assault occurs in a relational, intimate context.

In addition to the problematic stereotype of the “ideal victim,” too many people cling to a distorted image of what a “real” sexual assault involves, imagining a sudden, physical attack that comes out of the blue.

In this way, the vast majority of sexual assaults do not occur in an intimate or relationship context. In many sexual assaults, contact initially occurs consensually, but what happens next, including forced penetration, occurs without consent.

JB finally left the hotel room. But when Hoggard texted her the next day and pretended he hadn’t attacked her, JB replied: “You raped me.”

The legal problem

The appeal court is unanimous Verdict found no material error or miscarriage of justice. It rejected all of Hoggard’s defense’s appeals.

This confirms the careful and impartial manner in which the judge conducted the lengthy and complex criminal proceedings. Avoiding a retrial is also extremely important to JB because criminal trials are typically hostile, even traumatic, encounters for victims of sexual assault.

Hoggard’s conviction stands, which is a victory for the crown. But some important ground has been lost.

The Court of Appeal judges seem to want it both ways: they explicitly recognize that rape myths, stereotypes and gaps in understanding persist and, in Judge Benotto’s words, will continue to exist “infect” too many sexual assault trials.

Yet the same appeals court ruled that legal decision-makers do not need education about trauma and its effects to refute rape myths, challenge discriminatory attitudes, and close gaps in understanding victims’ responses.

These two findings are deeply contradictory.

The appeals court’s response is that judges simply need to give good instruction to the jury to warn “against stereotypical arguments.”

If it were that simple, we would be much further along the path to equality and justice.

Cognitive instructions and judicial warnings are simply not enough to unearth deeply rooted discriminatory beliefs. A number of poorly decided sexual assault cases are overturned on appeal due to myths and stereotypes, show the gap between theory and practice in the criminal justice system. The appeal court itself pointed this out.

The deep grip of rape myths and stereotypes

Therefore, it is naive at best to assume that well-trained jurors in sexual assault trials will not allow rape myths to consciously or unconsciously influence decision-making. At worst, it fails to capture the underlying reasons why rape myths and stereotypes have such a strong influence on how society thinks about victims’ reactions to sexual assault.

Finally, it ignores the adequacy of legal knowledge of the complexity of victim responses by incorrectly assuming that judges are already sufficiently up-to-date in understanding the neurobiology of trauma.

A statement from Why There is an urgent need to prevent the spread of rape myths and develop effective strategies to dispel them. What functions do rape myths serve and how do stereotypes about how “real” victims of sexual assault react reveal gaps in understanding?

Rape myths and sexism continue to cloud the police response to sexual violence

It’s time to rethink sexual assault trials

Pursuing the flawed logic of sexual assault trials

Decades of research demonstrated that in the midst of a threatening, fear-provoking, or overwhelming experience such as sexual assault, the brain’s fear circuitry takes over. In short, under stress and threat, the capacity of the prefrontal cortex region of the brain – where rational decision-making occurs – is temporarily undermined.

The complex hormonal and physiological changes that occur rapidly when people are threatened are not well understood by legal professionals, let alone the general public. Still, this science helps explain the extraordinarily common reactions of many rape victims: rigidity, passivity, and accommodation in the face of unwanted intercourse and sexual assault.

A basic understanding of traumatic reactions and the key scientific findings that explain these reactions provide an explanation Why Rape myths are just that – Myths – and why they are wrong and forbidden in rape trials.

This is what trauma-informedness requires.

Furthermore, this is exactly the type of information needed in the criminal justice system to “uncover how entrenched” myths, stereotypes and sexual violence against women “really are and how devastating their consequences can be.” than that Supreme Court recently advised Canadians.

A missed opportunity

The Court of Appeal expressed legitimate concerns about the cost and time limitations for expert reports in criminal proceedings. In most cases, an expert report is obviously not necessary. However, sexual assault cases are unique. They are extremely susceptible to stereotypical, myth-based arguments, as the Supreme Court continually reminds us.

To get to the point where traumatic effects can be easily noted in court to make sense of the victim’s reactions, the Crown presented expert evidence in this high-profile sexual assault case. The legal strategy was aimed at enabling impartial and fair decision-making based on the facts of the case – the very issue that the defense was vigorously fighting.

By finding that expert evidence on the neurobiology of traumatic responses was not required, the Court of Appeal missed an important opportunity to assist legal decision-makers, level the playing field, and improve fairness and impartiality in sexual assault trials in Ontario. We can only hope that the Supreme Court of Canada takes the opportunity to make a much-needed course correction.

This article first appeared on Policy Options and is republished here under a Creative Commons license.