Elaine Craig, Assistant Professor of Law at Dalhousie University, and Alice Woolley, Professor of Law, University of Calgary, have contributed this important piece to the Globe and Mail. They analyze a recent Alberta Court of Appeal holding that rejects the stereotype that a woman who does not resist her rapist sufficiently actually wants to have sex with him. In effect, she consents. Professors Craig and Woolley note that the Canadian appellate court thus upholds existing Canadian jurisprudence. They write that the trial judge stated that “the woman had failed to explain ‘why she allowed the sex to happen if she didn’t want it.'” The accused weighed more than 100 pounds than did the complaining witness. They also reveal that the trial judge referred to the complaining witness as “the accused” in his ruling.
In its opinion the appellate court wrote that the lower court ruling “gave rise to doubts” about the trial court judge’s understanding of the law in this area and raised concerns that he “misapprehended the evidence.”
This sort of writing makes legal principles and the workings of the law accessible to the public efficiently and effectively. Excellent article.
The case is R. v. Wager, 2015 ABCA 327.