XPost: can.politics, tor.general   
   From: puela@nyet.ca   
      
   Women who are coming forward to accuse men of rape decades after the fact are   
   going to be in for a shock in court:  things haven't changed that much since   
   the last generation.   
   And even though the media may be onside with the women, the courts still have   
   to be much more judgmental in their examination of the facts.  And those   
   examinations are mean street thorough.   
   __________________________________________________   
      
   National Post - January 18, 2015   
      
      
   Sex-assault conviction erased, new trial ordered because Alberta judge too   
   sensitive to rape culture   
      
      
   The effect of the judge's conduct, motivated by a desire to protect a woman   
   from being questioned on 'rape myths,' was an unfair trial, an appeal...   
      
   A sexual-assault conviction in Alberta has been erased and a new trial ordered   
   because the trial judge was too sensitive to rape culture in his courtroom.   
      
   In the 2013 trial of Joshua Michael Schmaltz, Judge Darwin Greaves wrongly   
   "entered the fray," according to the Alberta Court of Appeal, meaning he   
   advocated for the prosecution, guided the complainant to favourable   
   interpretations of her testimony and stymied the defence lawyer's efforts to   
   probe inconsistencies.   
      
   The cumulative effect of this conduct, which was motivated by a desire to   
   protect the complainant from being unfairly questioned on "rape myths," was an   
   unfair trial ending with the judge's unfair conviction, the appeal court ruled.   
      
   Elizabeth Sheehy, vice-dean of research at the University of Ottawa and an   
   expert on women and the law, said the case should be appealed to the Supreme   
   Court of Canada to "clarify both the judicial responsibility and the boundaries   
   of appropriate judicial intervention for the benefit of women who experience   
   sexual assault so that they know what they can realistically expect if they are   
   to take on the courageous role of complainant."   
      
   The case is a discouragement to judges and a warning to women that their   
   credibility will always be a key target of the defence, Prof. Sheehy said.   
      
   The ruling also makes the case for providing sex-assault complainants with   
   their own legal counsel, said Elaine Craig of the Schulich School of Law at   
   Dalhousie University.   
      
   In last week's ruling, one appeal judge dissented, and would have upheld Mr.   
   Schmaltz's conviction, which means an appeal is possible. The other two judges   
   said it cannot stand, citing the famous precedent, from a 1924 British case,   
   that "justice should not only be done, but should manifestly and undoubtedly be   
   seen to be done."   
      
   The Crown alleged that, after the complainant fell asleep at her daughter's   
   home, she woke to find Mr. Schmaltz, a friend of her daughter's boyfriend, in   
   bed with her. She testified he digitally penetrated her without her consent.   
      
        He also demonstrated that he was not listening to or understanding some of   
   the inconsistencies presented by defence counsel   
      
   It is well established in law, as the appeal court described, that   
   sexual-assault complainants are rightly protected from "random shots at the   
   complainant's reputation or groundless questions directed to discredited   
   ‘rape   
   myths' to the effect that the complainant's unchaste or aroused state made it   
   more likely that she would have consented to the sexual activity in question."   
      
   But on three main issues - the complainant's marijuana use, alcohol use, and   
   whether there had been "flirting" before the alleged offence - the judge   
   "appeared to enter the fray," and even at times misunderstood what was going   
   on.   
      
   "In more than one instance, he interjected to ask leading questions or to   
   suggest the most favourable interpretation to the complainant before she had a   
   chance to answer the question," the court found. "He also demonstrated that he   
   was not listening to or understanding some of the inconsistencies presented by   
   defence counsel."   
      
   Mr. Schmaltz's lawyer "couldn't even get to the point she was trying to get   
   to," said Karen Molle, a lawyer who argued the appeal for Mr. Schmaltz, but not   
   the trial, held in 2013.   
      
   As the appeal court described it, Judge Greaves appreciated that he had to   
   strike a balance between, on the one hand, allowing Mr. Schmaltz to test and   
   challenge the evidence of the Crown, and on the other, protecting the   
   complainant from "being subjected to illegitimate and irrelevant questions   
   based upon discredited ‘rape myths.'"   
      
   Judge Greaves was "well-motivated," the ruling states, but "his interjections   
   throughout the trial would lead a reasonable, well-informed and right-minded   
   observer to conclude that [Mr. Schmaltz] was unable to make full answer and   
   defence to the charges."   
      
   For example, when defence counsel was cross-examining the complainant about   
   marijuana, intending to highlight a contradiction between her own testimony and   
   the positive results of a blood test, Judge Greaves apparently thought this   
   line of questioning was to determine whether marijuana had caused the   
   complainant to pass out.   
      
   He intervened, telling the defence he would require expert evidence to prove   
   she had used marijuana on the specific night of the alleged offence. "I mean,   
   they can find alcohol and THC in your blood for weeks after you have had it,   
   and now this is a common issue with job employment," the judge said.   
      
   With this comment, Judge Greaves engaged in "advocacy on behalf of the Crown"   
   and "inappropriately signalled an answer to the complainant that explained away   
   any potential contradiction," the appeal court found.   
      
   On the issue of flirting, the complainant testified there was none, despite   
   having told police: "Yeah. Yeah, he's a young guy."   
      
   When defence counsel tried to explore this possible contradiction, Judge   
   Greaves shut it down, saying the police statement "clearly" means that only Mr.   
   Schmaltz was flirting. By doing so, Judge Greaves "not only effectively shut   
   down cross-examination by defence counsel on a potentially critical ambiguity   
   in the complainant's statement to police, it suggested a resolution to that   
   ambiguity that Crown counsel was able to exploit."   
      
   A similar thing happened with inquiries about the complainant's testimony about   
   her own alcohol consumption.   
      
   In her dissent, Justice Marina Paperny said the issue of flirting was   
   "collateral at best and irrelevant on the ultimate issue of consent." She found   
   the defence strategy on the alcohol issue was not "sabotaged" because the   
   contradictions were made clear, as they were on the marijuana issue.   
      
   David Tanovich, a law professor at the University of Windsor whose research has   
   shown sex-assault convictions in Ontario have been more likely than other   
   offences to be overturned on appeal, called it a "troubling decision," which   
      
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