'Why couldn’t you just keep your knees together?': Judge’s comments will deter rape victims

Hey there, time traveller!
This article was published 12/11/2015 (1045 days ago), so information in it may no longer be current.

OTTAWA — If any Canadians still wonder why many women are reluctant to come forward after a sexual assault, they need look no further than the recent comments made by an Alberta judge about a victim.

In September 2014, a Calgary man went on trial for the sexual assault of a 19-year-old homeless woman at a house party.

Among the highlights of the statements made by Justice Robin Camp during the trial were these questions to the victim: "Why didn’t you just sink your bottom down into the basin so he couldn’t penetrate you?" And, "Why couldn’t you just keep your knees together?"

To the latter question, the victim quietly responded: "I don’t know."

As if a woman who doesn’t want to be raped can simply lock her knees to the point where an attacker, such as the 240-pound man accused of raping her, is prevented from forcing them apart.

It’s so shocking, it’s almost hard to believe. And yet, there it is, in black and white, in the trial transcripts.

Other highlights from Camp during the trial include telling the victim, who testified the assault hurt, that "Sex and pain sometimes go together; that, that’s not necessarily a bad thing."

He said because the victim was drunk, there was an "onus on her to be more careful."

If that weren’t bad enough, Camp also completely thumbed his nose at Section 276 of the Criminal Code, which explicitly prohibits courts from hearing evidence of a victim’s sexual history in order to show a woman is less credible as a witness, or more likely to have consented to sex, because of her prior sexual encounters.

Camp called the section "incursive" and allowed the defence lawyer to question the victim about whether she was flirting with other people at the Calgary house party where the alleged assault took place. Apparently flirting with people is equivalent to not being able to say no to sex in a bathroom later on, if Camp’s thinking is to be believed.

It should be no great surprise that at the end of the trial, Camp acquitted the accused.

Sure, Camp is sorry now, because his career is in jeopardy. Three law professors this week asked the Canadian Judicial Council to determine whether Camp should be removed from the bench.

Camp is now a federal judge. He was promoted to the federal court in June by then-justice minister Peter MacKay, 10 months after this trial and while it was under appeal, which raises some serious questions about the vetting process for federal judges. New Justice Minister Jody Wilson-Raybould said Thursday she will review the way Camp was promoted.

This week, the federal court put restrictions on Camp to bar him from hearing any sexual-assault cases until the CJC completes its work. And Camp issued a statement apologizing to the victim and claiming he has suddenly now seen the light.

"I am deeply troubled that things that I said would hurt the innocent. In this regard, I am speaking particularly to those who hesitate to come forward to report abuse of any kind and who are reluctant to give evidence about abuse, sexual or otherwise."

Well, thanks, Justice Camp, but there is no doubt some women will hear of this case and decide coming forward is too difficult.

And forgive a skeptic for wondering whether the CJC will have any teeth to do anything about it. The CJC is the body that oversees judicial conduct. Only twice since its inception in 1971 has it recommended a judge be removed from the bench.

In 2011, a Manitoba judge who made statements somewhat similar to Camp’s — including that the alleged victim had been looking for sex because she was dressed provocatively and wearing a lot of makeup — was rapped on the knuckles by the CJC. Justice Robert Dewar was asked to take sensitivity training and he apologized directly to the victim, but because it was considered an "isolated incident" by the CJC, no formal discipline was taken.

That case also ended up in a new trial where the accused was convicted and handed a three-year sentence, rather than the lighter conditional sentence Dewar deemed appropriate because he said the victim bore some responsibility for the attack.

This is the same CJC that allowed a Manitoba judge’s sex life to be paraded before the public because her husband had posted nude images of her online and once offered to pay one of his clients to have sex with her. Lori Douglas resigned from the bench earlier this year in the wake of that incident, which the CJC never thoroughly sorted out because the entire case turned into a three-ring circus.

Thankfully, the Alberta Court of Appeal recognized Camp’s behaviour for what it was and ordered a new trial.

But the victim in this case now gets to go through this trial a second time, relive the incident in open court and live in fear the next judge may also wonder why she didn’t just keep her legs together.

mia.rabson@freepress.mb.ca

Twitter: @mrabson