TORONTO – The sexual assault trial of Canadian musician Jacob Hoggard revolved around a central theme: consent.
The Hedley leader was found guilty of a sexual assault offense that caused bodily harm to one of the two complainants on Sunday, but was acquitted of the same charge plus a charge of sexual interference related to a teenage fan.
At the heart of the proceedings was a confrontation over consent, as is often the case in sexual assault trials, observers say.
The Crown alleged that Hoggard violently and repeatedly raped a teenage fan and a young Ottawa woman in separate incidents in the fall of 2016, while the defense argued that the sexual encounters were consensual.
High-profile cases like Hoggard’s have the power to shape our understanding of consent, lawyers and advocates say, exposing harmful misconceptions that permeate the courts and society at large.
“It’s great to try to shed light on some of these stories and it’s also worrisome,” Toronto criminal and constitutional attorney Megan Stephens said in an interview before the verdict.
“These kinds of cases are the ones that make people wonder if they should show up and report what happened to them.”
Canada has some of the most progressive laws in the books on sexual assault consent, Stephens said. The problem is how the letter of the law is applied, he said.
The Penal Code requires that consent be communicated in the affirmative through the words or conduct of a person, that is, by means of signs indicating “yes”, rather than the absence of a “no” “. Consent may be withdrawn at any time during a sexual encounter.
Ontario High Court Judge Gillian Roberts told the jury that decided Hoggard’s fate that consent in the context of a sexual assault case refers to whether the complainant “in her mind wanted sexual contact occurs “, citing a decision of the provincial court of appeal.
Stephens, a former Crown attorney, said that this “subjective standard” means that many cases of sexual assault are reduced to jurors’ assessments of the credibility of the complainant and the defendant based on the evidence they present.
Jurors usually do their best to abide by the law, he said, but identity can influence their determinations and what and the evidence of who to believe.
Many observers have noted the perceived gender imbalance in Hoggard’s jury, which appeared to consist of 10 men and two women.
“We’ve learned a lot over the last few years about the implicit biases and how they can affect our understanding and experiences. And I don’t think the jury system is immune to that,” said Stephens, who advocates for women’s rights in the system. of justice.
“Sometimes it’s hard for people to understand the experiences of others when they’ve never been to this place, whether it’s a male jury that understands a woman’s whistleblower or a white jury that makes sense of a black woman’s experiences.” .
Canadian courts have been struggling with the “myths and stereotypes” that affect the legal process, but even judges are prone to fall into them, said Pam Hrick, executive director and general counsel for the Women’s Legal Education and Action Fund.
Canada’s highest court has issued a series of rulings in recent years in which lower courts erred in enforcing the sexual assault law, Hrick said, serving as a course correction in a system. which has subjected the complainants to unfair scrutiny.
This shows how the social calculation of the #MeToo movement has impacted the courts, but there is still work to be done to close the gap between Canadian law and our evolving understanding of consent, Hrick said.
“I think sometimes there’s a lag between public understanding of law enforcement or law enforcement,” he said. “We need to be vigilant in continuing to drive change and keep trying to safeguard some of the gains we have made.”
Farrah Khan, manager of Consent Comes First in the Office of Support and Education for Sexual Violence at the Metropolitan University of Toronto, said the Hoggard trial illustrates how misconceptions about sex and consent persist both within as outside the courtroom.
Defense attorneys allege that the complainants lied about being raped to cover up their embarrassment after being rejected by a “rock star.”
The defense narrative was fueled by family troops, such as the “bewildered lover,” embittered by unreturned affections and groupies who fall under the sexual slavery of a famous musician, Khan said.
There were power dynamics at stake in the case, such as differences in age and social status, which Canada’s consent laws do not take into account, but which can nevertheless influence how survivors of sexual violence process his own experiences, he added.
“It’s important for survivors to understand that, because sometimes you can turn on gas in these situations,” he said. “Just because you want to see someone, just because you want to kiss someone doesn’t mean you want to be sexually assaulted.”
The Canadian Women’s Foundation conducted an online survey of more than 1,500 Canadians in 2018 which found that only 28% of respondents fully understood what it meant to give their consent, a drop from 33% in 2015 before the #MeToo movement.
With so many young people growing up listening to Hedley follow up on the Hoggard case, Khan said he is concerned that the next generation will suffer similar confusion unless we begin to prioritize consent and pleasure in sex education.
“The challenge is that we treat consent as a checkbox,” he said. “Consent is about a conversation … And it’s ongoing, it’s reversible.”