RED DEER, Alta. — A judge who came under fire from Alberta's appeal court for ruling a rape complainant in a sexual assault case consented after tiring from fighting off her attacker has decided to take early retirement.
The Alberta Court of Appeal criticized Court of Queen's Bench Justice Kirk Sisson in 2014 for acquitting a suspect in a 2013 sexual assault case.
Court heard the woman told the suspect on numerous occasions that she did not want to engage in any sexual activity.
He persisted despite her protests. After struggling and resisting his advances for 20 minutes, she realized he was not going to take no for an answer.
"Sexual assault is not confined to intercourse."
"She testified that she gave in because of his persistence, and to get it over with. In other words, she finally decided that she had enough and gave into him," wrote Sisson in his ruling.
"Consequently, the Crown has failed to prove an essential element of the offence beyond a reasonable doubt, that's lack of consent."
But the appeal court set aside Sisson's ruling and substituted the acquittal with a conviction saying he "erred in his narrow definition of the charge of sexual assault" and by "inferring consent from submission."
"The trial judge considered only the sexual intercourse that took place after these protests. This is an error. Sexual assault is not confined to intercourse," wrote the three-judge panel.
"The Criminal Code makes clear that acquiescence or submission is not consent. Moreover, the law requires that reasonable steps be taken to ensure consent after the rejection of sexual advances."
Sisson, 65, was appointed to the bench in 2006 and will take early retirement beginning Jan. 3. He could have remained on the job for another 10 years.
He will receive an annual pension payout of $142,000.
Age of judges not the issue, it's the biases
Danielle Aubry, executive director of Calgary Communities Against Sexual Abuse, said she doesn't think the age of a judge is the issue.
She said the problem is with judges who have biases that reflect rape culture myths.
"They're the ones who should be retiring," she said.
"Let's just make sure anyone who is sitting on the bench is doing it responsibly and with good information and good education."
The Sisson case is just one of a number of high-profile cases that has put the Alberta judiciary in the spotlight.
A Canadian Judicial Council panel recommended last month that Justice Robin Camp should lose his job for his handling of a 2014 sexual assault trial.
Justice Robin Camp told the young woman facing a sexual assault trial that "pain and sex sometimes go together" and asked why she couldn't just "keep her knees together." (Photo: Andrew Balfour/Tribunal Federal de Canada)
Camp called the complainant, an indigenous woman who was 19 years old and homeless at the time of the alleged assault, "the accused" throughout the trial — a phrase he repeated during a judicial council disciplinary hearing before quickly correcting himself.
He also told the young woman "pain and sex sometimes go together" and asked why she couldn't just "keep her knees together."
Camp acquitted Alexander Wagar, but the verdict was overturned on appeal and a new trial was ordered. Testimony in the retrial wrapped up in November.
Other problematic handling of sexual assault cases
Provincial Chief Judge Terrence Matchett is also reviewing how two other Alberta provincial judges handled recent sexual assault cases.
In June 2015, Judge Pat McIlhargey acquitted a 16-year-old boy accused of raping a 13-year-old girl in a park because the girl "did not scream, she did not run for help."
In the other case, Judge Michael Savaryn acquitted a 15-year-old boy who grabbed the breasts and buttocks of a girl, also 15, in a high school hallway and tried to kiss her.
Savaryn wrote the complainant "tried so hard to laugh it all off that I do not believe she was successful in communicating her discomfort."
The acquittal was overturned by a higher court judge and the boy was convicted.
The public is more aware now about problems in the justice system thanks to cases like Camp's, Aubry said.
"The fact it was a sexual assault case did bring a lot of attention to it and I think it is just the beginning," she said. "Daily in court we are experiencing judges who have lots of biases and lots of myths that they still hold."
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