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Jacob Hoggard’s trial brought back the issue of consent in sexual matters

TORONTO — The sexual assault lawsuit against Canadian musician Jacob Hoggard has brought a critical issue to the fore: sexual consent.

The singer of the band Hedley was found guilty on Sunday of one count of sexual assault causing bodily harm against one of the two complainants. He was acquitted of the same charge, and that of sexual interference, in the case of another complainant, a teenager at the time of the events.

As is often the case in sexual assault trials, the issue of consent will have been at the heart of this criminal case, observers agree.

The Crown alleged that Hoggard repeatedly and forcefully raped a teenage Hedley fan and a young Ottawa woman in two separate encounters in the fall of 2016. The defense, on the other hand, argued pleaded that the sexual relations had been consensual.

High-profile cases like this have the power to shape our understanding of consent in sexual matters, lawyers and activists point out: These trials expose misconceptions or misconceptions, but harmful ones, that permeate the courts and society at large.

“It’s great, but also disturbing, to try to shed light on some of these stories,” said Toronto criminal lawyer and constitutional law expert Megan Stephens before the verdict. These kinds of cases make some people wonder if they should come forward and report what happened to them.”

Canada has some of the most progressive consent laws in sexual assault cases, Stephens said. The problem lies in how the letter of the law is applied, she said.

The Criminal Code requires that consent be communicated affirmatively, by a person’s words or conduct, that is, by signals that say “yes”, rather than the absence of signals that say ” Nope”. Consent can also be withdrawn at any time during a sexual relationship.

At Hoggard’s trial, Ontario Superior Court Judge Gillian Roberts told the jury, citing a provincial Court of Appeal decision, that in a sexual assault case, consent is whether the complainant, “in her mind, wanted the sexual touching to take place.”

“To each his biases”

Constitutional lawyer Stephens, a former Crown prosecutor, argues that this ‘subjective standard’ means that many sexual assault cases come down to jurors’ assessment of the credibility of the complainant and that of the accused. , based on the evidence presented at trial. Jurors generally do their best to follow the law, she said, but identity can influence their determinations and what to believe.

Many observers noted the apparent gender imbalance on the jury in Hoggard’s trial, which appeared to be comprised of 10 men and two women.

“We have learned a lot in recent years about implicit biases and how they can affect our understandings and experiences. And I think the jury system is not immune to that,” said Ms Stephens, who advocates for women’s rights in the justice system.

“It’s sometimes hard for people to understand the experiences of others when they’ve never been there — whether it’s a male juror trying to understand (what went through) a complainant, or of a white juror facing a black woman.”

Canadian courts are grappling with the “myths and stereotypes” that plague the legal process, but even judges are at risk of falling prey to them, said Pam Hrick, director and general counsel of the Action and Education Fund. legal for women.

Beacons from the highest court

The Supreme Court of Canada has handed down a number of decisions over the past few years that find lower courts erred in their application of sexual assault law, Hrick said. These judgments make it possible to correct the course in a system which subjected the complainants to an unfair process, according to her.

It shows how societal recognition of the #MeToo movement has trickled down to the courts as well, but there’s still work to be done to close the gap between Canadian law and our evolving understanding of consent, Hrick said.

“There is sometimes a disconnect, I think, between the public’s understanding of the application or the evolution of the law, she said. We have to be vigilant in continuing to push for change and continuing to try to save some of the gains we have made.”

Farrah Khan, director of ‘Consent Comes First’ at Metropolitan University of Toronto’s Office of Sexual Violence Support and Education, believes the Hoggard trial illustrates how misconceptions about sex and consent persist both in the courtroom and in society.

Defense lawyers alleged the plaintiffs lied that they had been raped, a lie intended to cover up their embarrassment after being dumped by a speedboat.

“The challenge is that we’re treating consent like a checkbox,” Khan said. Consent concerns a conversation (…) And it is continuous, it is reversible, this conversation.

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