By Gail Gatchalian, Q.C., and Katrin MacPhee
Workplace investigators must be conscious of their own implicit biases when conducting sexual harassment or assault investigations. Investigators should be cautious that their judgement is not impaired by the following myths surrounding sexual assault and harassment:
1. Myth: Sexual assault is most often committed by strangers.
Fact: Statistics Canada’s 2011 Measuring Violence Against Women report found that 75% of female sexual assault survivors knew the assailant. 45% of assaults were committed by acquaintances or friends, 17% were committed by an intimate partner, and 13% were committed by a non-spousal family member.
2. Myth: Credible sexual assault survivors report being assaulted to the police. A recent illustration of this stereotypical belief was President Trump’s September 21st tweet that “If the attack on Dr. Ford was as bad as she says, charges would have been immediately filed with local Law Enforcement Authorities by either her or her loving parents.”
Fact: According to Statistics Canada’s 2014 Self-Reported Sexual Assault in Canada figures, only 5% of survivors reported the assault to police. Many incidents of workplace sexual harassment or assault also go unreported (Employment and Social Development of Canada, Harassment and Sexual Violence in the Workplace, Public Consultations: What We Heard, 2017)
3. Myth: Credible Sexual assault survivors immediately report being assaulted.
Fact: Many, many assault survivors never report. For those that do, there is a median delay of 25 days to report a sexual assault. (Statistics Canada, Police-Reported Sexual Assaults in Canada, 2009 to 2014: A Statistical Profile)
4. Myth: A person’s sexual history or manner of dress is indicative of whether they consented to the sexual conduct at issue.
Fact: A person’s sexual history or style of stress does not reveal whether they consented to the sexual activity in question. Under human rights law, evidence about a complainants’ sexual history or manner of dress are irrelevant to the question of whether they were assaulted or harassed at work. (Arjun P. Aggarwal and Madhu M. Gupta, Sexual Harassment in the Workplace, Butterworths: 2000)
5. Myth: Credible survivors recount all the details of the sexual assault.
Fact: Trauma can significantly impair the formation and storage of memories. It can result in the shutdown of episodic memory and lead to fragmentation in the memory’s sequencing of events. (National Institute for the Clinical Application of Behavioral Medicine, How Trauma Impacts Four Different Types of Memory, https://www.nicabm.com/trauma-how-trauma-can-impact-4-types-of-memory-infographic/)
6. Myth: If sexual activity was not consensual, the survivor would have screamed or struggled physically against it.
Fact: The Supreme Court of Canada rejected this myth as irrelevant to the law of consent in R v Ewanchuk, (1999) 1 SCR 330. The fact that a survivor did not struggle physically or scream does not mean they consented to the sexual conduct at issue.
7. Myth: Sexual assault always leaves the survivor with signs of physical trauma.
Fact: Sexual assault is illegal whether or not the survivor was assaulted with a weapon or left with signs of physical trauma. Almost 98% of sexual assaults reported to police between 2009 and 2014 did not involve the use of a weapon or “evidence of bodily harm” (Statistics Canada, Police-Reported Sexual Assaults in Canada, 2009 to 2014: A Statistical Profile).
8. Myth: Only rape is “real” sexual assault. A recent example of this myth from the Kavanaugh hearing was Evangelical preacher Franklin Graham’s claim that no sexual assault occurred because Kavanaugh did not rape Dr. Ford. (Heather Sells, CBN News, Franklin Graham on Judge Kavanaugh Accusation: “Not Relevant”)
Fact: Workplace sexual harassment includes a spectrum of behaviour, including any non-consensual touching of a sexual nature.
9. Myth: It wasn’t sexual assault if the survivor had been drinking.
Fact: A person can be sexually assaulted while intoxicated.
10. Myth: Sexual assault survivors say no when they mean yes, and silence or passivity are tantamount to consent.
Fact: In its Ewanchuk decision the Supreme Court of Canada found that there is no such thing at law as implied consent to sexual activity. Further, the Court concluded that “a belief that silence, passivity or ambiguous conduct constitutes consent is a mistake of law.” In a workplace, where a person is in a position of power or authority, consent may be irrelevant to the question of whether or not the conduct was unwelcome and therefore constitutes sexual harassment.
For more information, contact Gail Gatchalian, Q.C.