Barbara Kay: A sign of hope for the falsely accused


National Post - Wednesday September 4th, 2013

FotolioGender
Gender-blindness, like race blindness, should be a given on the bench.

When people are accused of a crime, they should be considered innocent until proven guilty. When proven guilty, they should be punished. If they have been falsely accused and their accusers acted in bad faith, then those accusers should be punished. All this should be taken as common sense.

But in come cases, especially when gender bias is involved, the law makes a mockery of these principles.

We saw a particularly blatant example in a recent decision by the Supreme Court of Canada, in the case of Nova Scotia woman Nicole Doucet. She had admitted to seeking the proxy murder of her ex-husband, Michael Ryan, but a sympathetic trial judge acquitted her on a “duress” defence. Yet instead of being sent back for retrial, Doucet was granted a stay of proceedings as compensation for an alleged, but completely unsupported, “reign of [domestic] terror.”

The myth that women never lie about sexual or domestic abuse has become the received wisdom among too many judges. The result is that innocent men often are charged or imprisoned for violence — or lose access to their children, or lose jobs and reputations, or accept the indignity of inscription on a sex offender registry (not to mention being bankrupted by legal costs).

And so it comes as something of a pleasant shock when women making allegations of abuse against a man are treated in court with complete impartiality. Such was the case last week, when two Ancaster, Ont. sisters were ordered by Superior Court Justice Andrew Goodman to pay $125,000 in libel damages to their uncle.

The sisters had confronted the uncle in 2006, and demanded an apology for his alleged sexual abuse of them at the ages of four and six, which he unequivocally denied. The women did not lay charges, but sent their allegations by email to friends and family. The humiliated uncle then sued the nieces for defamation, at which point the nieces sued him for sexual battery.

Judge Goodman dismissed the women’s claims, as their memories were “not of the clean and cogent nature required” to substantiate their allegations (the abuse, as alleged, would have to have taken place in the close presence of two male cousins, a notion straining credulity).

The women made up the sex abuse allegations because they simply disliked their uncle

Still, they might have carried the day in some other courtroom, as victims of sexual abuse have “qualified privilege,” giving them legal protection to discuss their stories without fear of libel charges. But in this case, an email with the words “we do not want anyone else to be sexually abused” did them in, suggesting, in the judge’s view, that the uncle was at risk to re-offend, a libelous charge. The judge drew the conclusion that the women made up the allegations because they “did not like their uncle.”

Unsurprisingly, the women’s lawyers reacted with predictions that this judgment would have a “chilling effect,” discouraging real victims from coming forward. By this, they seem to imply that the judge should have endorsed two injustices — ruining an innocent man’s life and absolving women he believes are liars — in order to assure future female abuse victims that, unlike all other plaintiffs, they are assured of having the scales of justice tilt in their direction.

These lawyers seem to be confusing their mandate with that of social workers. Redressing violence against all women is a fine ideal, but affirmative action in the courtroom is the kiss of death to the greater ideal of justice.

The Ancaster judgment sends a message to vengeful women who “do not like” a man and are prepared to lie in court to punish him. It also is a sign of hope in regard to the justice system, more generally. Gender-blindness, like race blindness, should be a given on the bench. Too often it isn’t. But in this case it was.

National Post

bkay@videotron.ca