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A six-year-old girl’s account of being sexually assaulted by a teenage boy at a park was enough to convince a Manitoba provincial court judge to convict the teen. But the judge’s comments about playground sand were enough for the province’s top court to overturn the conviction.
In a decision that shows how difficult it can be to secure a conviction in sexual-assault cases involving child victims, the Manitoba Court of Appeal has reversed the guilty verdict and ordered a new trial for the then-17-year-old male, who had been convicted and sentenced to probation for sexual interference and invitation to sexual touching.
Two out of three judges on the appeal panel decided there was a "miscarriage of justice" because the provincial court judge made legal errors in his analysis of the evidence — namely, whether the accused was telling the truth when he talked about the consistency of sand in the park where the girl was playing.
A third judge disagreed, writing in a dissenting judgment released earlier this month that the teen’s conviction should have been upheld.
The appeal was heard Dec. 1, 2017.
The 17-year-old from rural Manitoba was a family friend. He took the six-year-old girl and her two-year-old sister to the park to play for about 45 minutes. When they got back, the two-year-old made a reference to the accused and to her genitals.
The six-year-old’s mother later asked her what happened.
The girl initially told her it was a secret, but eventually said the teen showed her his genitals, asked her to touch him and licked her vagina.
She gave a video statement to police, and the video was played in court. By the time the trial happened, the girl didn’t remember much of the incident.
The teen also testified and denied the girl’s story. He testified the six-year-old was annoyed at him after he broke the pile of sand she had formed at the park. He said she told him it looked "like a wiener."
"I told her not to talk like that anymore. So, I went over, broke the pile of sand. And lifted her up out of the sand box. Or sand pit. And we all walked over to the teeter-totters," he testified, saying the sand was piled six inches high and three inches wide.
The boy didn’t mention the "penis in the sand" to the girl’s mother after she confronted him about the allegations. He brought it up during his interview with police, but the trial judge didn’t believe his story.
"This was not a sandbox where sand was piled up. It’s really just footing under a play area. I find it hard to imagine that anybody could mound anything that could resemble a penis," the trial judge said in his reasons.
The judge didn’t believe the sand was the right consistency to be moulded, he thought the girl would likely have been dirty when she returned from the park, even though her mother didn’t notice anything unusual when she bathed the six-year-old that night, and he suggested the teen should have had other evidence for why the girl might have been angry with him.
The judge made assumptions about those details, the appeal court ruled, so the conviction can’t stand.
In their decision overturning the conviction, Justice Holly Beard and Justice Marc Monnin noted the girl’s mother wasn’t asked if the child was dirty. She was only asked if she noticed anything unusual when later bathing her.
As for what the sand looked or felt like, the court only had photos — taken from a distance — to go by. In this case, all three of the Appeal Court judges agreed there was sufficient evidence to convict the teen. Beard and Monnin decided the trial judge misunderstood the evidence.
The teen’s defence lawyer, Zilla Jones, said the trial judge may have been too quick to believe the victim and then tried to find reasons not to believe the accused.
"However believable that woman is or that child is, it doesn’t stop there. You still have to consider the rest of the evidence. And in this case, I guess the problem was that the judge had misunderstood some of the evidence, so he was drawing conclusions that the appeal judges didn’t find he was justified to draw," Jones said.
Each case has to be handled on an individual basis, regardless of support for victims or social movements that urge public acceptance of disclosures of sexual assault, Jones said.
"You want judges to be understanding trauma and understanding how to hear people who are talking about really difficult things that happened to them. We want that, but at the same time, we can’t lose sight of the point of a criminal trial, which is to presume innocence and to prove guilt beyond a reasonable doubt. That accused is presumed innocent, and that’s sort of at odds with some of the activism that we see," Jones added.
"I hope it doesn’t discourage people too much when they see a case that goes back (on appeal) because there’s also a lot of cases that don’t and every case is different."
There is no empirical research in Manitoba to show whether sexual-assault convictions are more likely to be overturned on appeal, University of Manitoba law professor Karen Busby said. "I think what’s operating here is a deep reluctance to convict in sexual-assault cases. I think that’s operating in a lot of cases.
"Sometimes, I wonder whether or not these cases are held to a higher standard, but I can’t prove that... we cannot establish that judges are reluctant to convict in these cases. I think sometimes, we wonder if they are because the consequences (of a sexual-assault conviction) are so significant.
"I think judges really struggle with these cases. The evidence is (often) thin, the consequences on a complainant can be devastating and the consequences on the respondent can be devastating. There’s no winners in these cases," Busby added.
Crown prosecutors are still within their appeal window to decide whether to take the case to the Supreme Court.
email@example.com Twitter: @thatkatiemay
Katie May reports on courts, crime and justice for the Free Press.
Updated on Thursday, June 14, 2018 at 10:43 AM CDT: Comments turned off.
10:48 AM: Headline changed.
June 15, 2018 at 6:25 PM: Fixes headline.
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