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  • Writer's pictureElizabete Costa

the #metoo movement IS NOT just a phase

Defence lawyer asks sex assault complainant why she didn't clench her legs together

Judge dismisses mistrial application, saying question was irrelevant and inappropriate

馃摲Meghan Grant 路 CBC News 路 Posted: Jun 19, 2018 5:53 PM MT | Last Updated: 4 hours ago馃摲A defence lawyer's questioning was 'founded on rape myths,' judge says. (Meghan Grant/CBC)A defence lawyer who asked a young woman why she didn't clench her聽legs together聽to prevent her father pulling down her pants and having sex with her has been admonished by a Calgary judge, who dismissed a mistrial application聽Tuesday afternoon."You would agree with me then聽鈥β燼ll you had to do was clench your legs together and your pants would have been unable to move," said defence lawyer Krysia Przepiorka in her cross-examination of the young woman late Monday afternoon.The line of questioning was ultimately deemed by Court of Queen's Bench Justice Gillian Marriott to be "founded on rape myths."Neither the complainant nor her father can be identified. He is charged with sexual assault and incest.

'Verging on impermissible'

After an objection from prosecutor Gianna Argento, Marriott suggested the defence lawyer's questions were "verging on impermissible" and suggested she聽reconsider the聽cross-examination聽and return the following morning.聽But on Tuesday morning,聽Przepiorka made an application for a mistrial arguing the judge had聽"inappropriately entered the fray and improperly limited cross-examination."Defence argued her line of questioning was聽related to the complainant's credibility and reliability because her story was impossible.聽Marriott dismissed that application, finding "a聽reasonably informed person would understand the problem with rape myths, and defence counsel has failed to adequately articulate the relevance of this question, and in my view it is irrelevant and inappropriate."

Daughter afraid to say no

In her original testimony, the聽daughter testified she was afraid to say no to her father but she did not consent to intercourse.The alleged victim was 19 years old when she moved to Canada to live with her father in 2013. In 2014, he allegedly had intercourse聽with her three times. She testified she was afraid and felt she could do nothing to stop her father's advances.聽One day, the father pulled her pants down and sexually assaulted her, according to the complainant's evidence. Przepiorka's question is聽eerily聽similar to the comments made by聽controversial former judge Robin Camp, who asked why a woman didn't keep her knees together to prevent an alleged rape,聽during a 2014 sexual assault trial.A Canadian Judicial Council hearing into Camp's conduct recommended he be removed from the bench. Camp resigned, but not before fighting to keep his job and trying to have the council ruling overturned.聽Camp was recently reinstated into the Law Society of Alberta, meaning he can once again practice law in the province, although he would have to go through a separate process if he wanted to appear in chambers or in any Alberta court. Defence lawyers have much more leeway when it comes to the questions they can ask in cross-examination.聽

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