After the Yukon Court of Appeal ordered a new trial for Jackie James Kodwat on a charge of sexual assault, there are concerns about the toll a whole new trial will have on the complainant.
“My concern at this point is what happens to the victim now, what are her options,” said Reem Girgrah, volunteer coordinator with the Yukon Status of Women Council’s Court Watch program.
“She testified one time and it was very clear that she was uncomfortable and she was distraught.”
The presiding trial judge, Justice Donald Luther, who handed down the initial conviction, said it was “inconceivable” that an “attractive 17-year-old” would give consent to a man in his 40s.
Based on this, the Yukon Court of Appeal found the conviction relied on “stereotypical assumptions” and ordered a new trial.
“These comments have made a very negative impact now on top of what had already happened to her,” said Girgrah.
She said the behaviour of people in the legal system affects those who are being encouraged to report crimes and trust the system.
“Whether or not it’s in a person’s benefit to report in the first place and go through the process, I think is a big question,” Girgrah said.
Vincent Larochelle, Kodwat’s lawyer, says it’s difficult for all parties involved to go through the process again, but due to the circumstances another trial is necessary.
“It’s frustrating for everyone to go through the trial a second time,” said Larochelle. “There was a mistake in the legal system and it needs to be corrected.”
But he says stereotypical reasoning is now “rare” in the courts and believes progress has been made.
“Fortunately, stereotypes of this kind are less and less frequent in the legal system. It used to be quite a problem back in the day, especially around sexual assault cases,” said Larochelle.
“The Supreme Court of Canada made it quite clear that you have to stop using stereotypes.”
Larochelle said only the evidence within each case should be considered and stereotypes have “no value” in the individual circumstances of both complainants and the accused.
Girgrah is concerned that attraction was raised in the court in the first place.
“[The judge’s] comments are concerning in terms of talking about attraction at all, because the issue is consent,” she said. “People can be super attracted to each other but that doesn’t mean there’s consent. They don’t correlate.”
Girgrah added that it’s challenging to provide support to the victim without revealing her identity and such cases are all too common in the territory.
“(The number of) women who are violated when they’re passed out or sleeping is enormous in the Yukon. We see it in the majority of cases of sexualized assault,” she said.
Larochelle expects the new trial will take place in later fall or early winter with a different judge and isn’t anticipating any further problems.
“I think most judges would never write anything like that,” he said.
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