National Post

Friday, February 26, 1999

He Said, She Said

National Post

OTTAWA - Justice Claire L'Heureux-Dubé of the Supreme Court issued a point-by-point rebuke yesterday to Justice John McClung of the Alberta Court of Appeal, for comments he made in a sexual-assault ruling last year in which he acquitted Steve Ewanchuk:

Judge McClung said: "It must be pointed out the complainant did not present herself [to the accused] in a bonnet and crinolines."

Judge Heureax-Dubé countered: "These comments made by an appellate judge help reinforce the myth that under circumstances, either the complainant is less worthy of belief, she invited the assault, or her sexual experience signals probable consent to further sexual activity."

Judge McClung said: "She told Ewanchuk that she was the mother of a six-month-old baby and that, along with her boyfriend, she shared an apartment with another couple."

Judge L'Heureux-Dubé said: 'One must wonder why he felt necessary to point out these aspects of the trial record. Could it be to express that the complainant is not a virgin?"

Judge McClung said: "there was no room to suggest that Ewanchuk knew, yet disregarded, her underlying state of mind as he furthered his romantic intentions."

Judge L'Heureux-Dubé said: "These were two strangers, a young 17-year-old woman attracted by a job offer trapped in a trailer with a man approximately twice her age and size. This is hardly a scenario that one would characterize as reflective of romantic 'intentions.' It was nothing more than an effort by Ewanchuk to engage the complainant sexually, not romantically."

Judge McClung said: "During each of three clumsy passes by Ewanchuk, when she said no, he promptly backed off."

Judge L'Heureux-Dubé said: "The expressions used by McClung to describe the accused's sexual assault, such as 'clumsy passes' are plainly inappropriate in that context as they minimize the importance of the accused's conduct and the reality of sexual aggression against women."

Judge McClung said: "The sum of the evidence indicates that Ewanchuk's advances to the complainant were far less criminal than hormonal."

Judge L'Heureux-Dubé said: "According to this analysis, a man would be free from criminal responsibility for having non-consensual sexual activity whenever he cannot control his hormonal urges."

Judge McClung said: "In a less litigious age, going too far in the boyfriend's car was better dealt with on site, a well-chose expletive, a slap in the face, or, if necessary, a well-directed knee."

Judge L'Heureux-Dubé said: "According to this stereotype, women should use physical force, not resort to the courts to 'deal with' sexual assaults and it is not the perpetrator's responsibility to ascertain consent...but the woman's not only to express an unequivocal 'no' but also to fight her way out of such a situation."

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