Rape dismissed because of body language

Saanich, British Columbia

“Maybe the police officer is right to say that in the current legal system we have, it won’t matter that she was sexually assaulted. We have multiple players in the system that are maybe making rational conclusions based on our structurally flawed system.”

The Saanich police constable in charge of Ashley’s case concluded the file on April 9, 2019. In that file, the officer writes that Ashley was “never forced to do anything she had not agreed to by way of body language.”

“And he said if I didn’t fight back, and I was conscious enough to [fight back], then it didn’t count. He said there would be no chance on it going to court because they would look at me as an under-age teenager who was just trying to fit in and be cool.”

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Warning: Story contains details of sexual assault.

A young Saanich woman says she was left feeling disheartened and blamed after she told local police she had been sexually assaulted.

Ashley, 19, who is using a pseudonym to protect her identity, waited more than a year to go to the Saanich Police Department (SPD). She wanted to wait until she was 18 and could report without having her parents find out about the assault.

The incident occurred at a small basement party near Maple Bay in October 2017, where the then 16-year-old got drunk for the first time. Police documents released to Ashley and shared with Black Press Media state that Ashley and a young man were making out – something she was comfortable with initially.

But when they moved to a blow-up air mattress, Ashley says the man assaulted her, performing oral sex on her, followed by penetration. Both by her own account and police reports, Ashley said she didn’t resist physically, but said ‘no’ more than once.

READ ALSO: Stories of sexual assault at B.C. tree planting camps ‘shocking but not surprising:’ advocate

“[Ashley] felt very uncomfortable with this evening, understands that as a 16-year-old at the time, she was very intoxicated and confused about the whole affair with [name retracted],” reads the police report.

The Saanich police constable in charge of Ashley’s case concluded the file on April 9, 2019. In that file, the officer writes that Ashley was “never forced to do anything she had not agreed to by way of body language.”

He wrote that the threshold for a sexual assault charge wasn’t satisfied based on the evidence gathered.

According to Ashley, the officer told her that it didn’t matter how many times she had said ‘no’ because body language was another form of communication.

“And he said if I didn’t fight back, and I was conscious enough to [fight back], then it didn’t count. He said there would be no chance on it going to court because they would look at me as an under-age teenager who was just trying to fit in and be cool.”

She said the constable told her he hoped that she put herself in ‘better situations in the future.’

The constable spoke to the suspect, who offered to make an in-person apology. Ashley didn’t want to hear it. She felt emotionally defeated by the process.

Ashley went to the media after reading about an October 2019 report from the Office of the Police Complaint Commissioner (OPCC), which revealed a Saanich police officer was suspended for 20 days after counselling an alleged sexual assault victim not to report the incident to police.

“I do understand it’s a huge problem. No one gets convicted or actually gets charged because, despite how much evidence you have, the criminal court is so poorly set up … and the police aren’t making that any better, any easier. It’s so frustrating because [police] are the first step.”

Since then, Ashley said the constable on her file issued an apology to her through a liaison officer with the Victoria Sexual Assault Centre, where she receives counselling.

“It definitely did impact my mental health,” she says. “I almost took my life because of it.”

READ ALSO: Victoria Sexual Assault Centre remains open for survivors through COVID-19 pandemic

Rebecca Johnson, a law professor at the University of Victoria, says body language isn’t a legal dealbreaker, as evidenced by the 1992 Supreme Court of Canada case R v. Ewanchuk, which upheld that there was no defence of ‘implied consent’ in a sexual assault trial.

“The idea that she has to push or shove … that’s just legally wrong. But the fact that it’s legally wrong doesn’t mean people aren’t still seeing those as the dominant stories and using them to filter cases out of the system at each step of the way.”

Johnson said Ashley’s case fits with conventions of filtering out and discounting survivors’ experiences. It’s not just an issue at the policing level, she notes. Sexual assault cases face a lineup of gatekeepers including police, lawyers, judges and society in general.

“Maybe the police officer is right to say that in the current legal system we have, it won’t matter that she was sexually assaulted. We have multiple players in the system that are maybe making rational conclusions based on our structurally flawed system.”

Carissa Ropponen, spokesperson for the Victoria Sexual Assault Centre, says accessing the criminal justice system is re-traumatizing for survivors of sexual assault, if they even make it that far.

She notes that approximately only 10 per cent of sexual assault survivors report to police.

“We know that many survivors are not treated with the respect and dignity that they deserve.”

Sgt. Andy Stuart of the SPD family protection unit told Black Press the majority of sexual assault files involving adults are handled by patrol officers – who may or may not have experience with that type of investigation.

In B.C., police don’t decide if charges will be filed on a given case – that decision comes from Crown counsel. But officers decide if there is enough evidence to submit a report to Crown.

For Saanich police, the decision and details of the investigation must first be reviewed and signed off by a supervisor. This year, SPD added more oversight, with the family protection unit now reviewing each sexual assault file. Those officers check to ensure the individual was interviewed in an appropriate setting and offered resources for ongoing support.

READ ALSO: No charges laid in reported sexual assault at CFB Esquimalt

The most common type of sexual assault – called ‘level 1’ in the Criminal Code of Canada – does not involve weapons; when the ‘sexual integrity of the victim is violated’ – and typically occurs between two people who know each other. Those crimes are difficult to prove at trial.

The number of sexual assaults reported to SPD has risen steadily – from 2010 to 2014 the average number of sexual assault reports was 40.4. Between 2017 and 2019 it was 85.7.

Statistics Canada notes that after the #MeToo social media movement began, and as thousands of people shared survivor stories, more sexual assaults were reported in which the accused was known to the victim. In 2017, the number of sexual assault incidents reported to police was higher than it had ever been since 1998.

Ropponen said that coming forward to speak about sexual violence is difficult.

“The shame and blame that people experience having to speak about an experience where you’ve been violated is really challenging to do. Going to police and having to recount the details of that trauma can be completely overwhelming. If the officer involved is not treating the survivor with the respect and dignity that they deserve, it’s even more challenging to go through that process.”

For members of marginalized communities, that process can be even harder. People who have been over-policed and targeted and experienced harassment from police, may not see police as a safe place to go, she said.

Ropponen and Stuart agree reform is needed. Both called for alternative systems that work to heal and remedy injustice without pitting survivors against the accused in criminal court.

For Ashley, there was no justice.

“They said [the constable] was going to get more training. But my case is over now.”

For resources and help dealing with sexual assault, visit the Victoria Sexual Assault Centre’s website at vsac.ca or call 250-383-3232.

About lazeejjs

Jonathan McCormick holds a Black Belt in Combat Martial Arts. He is a U.S Marine (Inactive), trained with famed CIA operative Rex Applegate and Ultimate Fighter Champion Royce Gracie and was the director of the Institute of Defense Tactics. He is a former member of the American Society of Law Enforcement Trainers and worked with members of various law enforcement agencies in the areas of suspect control and officer safety. He has written for law enforcement magazines BlueLine (www.blueline.ca) and Twenty-Four-Seven and has been a guest writer for the Vancouver Province. “Wyoming Secrets”, “30,000 Secrets”, “Santa Barbara Secrets” and The “J” Team Series are inspirational novels which focus on women who feel overwhelmed by the threat of violence in their lives. View the Series
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