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Accused found not guilty in 2018 sex assault, but judge says 'we need to act'
to prevent similar crimes
Bethany Lindsay · CBC News ·
Posted: Jan 24, 2021 6:00 AM PT
In a December judgment, a B.C. judge explains that an acquittal in a 2018 sex assault case should not be taken to mean the accused is innocent. (HTWE/Shutterstock)
Warning: This story contains graphic details about sexual assault.
The trial centred on the rape of a 14-year-old girl in a B.C. motel room where she'd been plied with alcohol by multiple strange men.
No one has been convicted in the crime and it appears unlikely anyone ever will, but a B.C. judge has used the case to make an urgent appeal for action to protect Indigenous women and girls from violence.
In an acquittal handed down last month, Provincial Court Judge Alexander Wolf said society has failed in its duty to protect people like the victim in this Feb. 2, 2018 assault.
"Indigenous females have a greater chance of being victims to spousal violence. They have an increased chance of being sexually abused while in care, and sexually assaulted when out of care. If you are a female teenager in jail, chances are that you are an Indigenous girl," wrote Wolf, a member of the Kwikwasut'inuxw Haxwa'mis First Nation.
He is right, of course, but there is a desperate need to find out how many indigenous children have been sexually abused. In Canada, I believe the average to be about 1 in 4 girls and 1 in 10 boys. In indigenous societies, I suspect the number of girls sexually abused is beyond 50%. I have no idea how many boys are sexually abused but it will certainly be well in excess of 1 in 10.
"We need to do something, we need to act. If we do not act now, when will these horrible crimes against our young girls and women ever end?"
Wolf's Dec. 22 judgment carefully defines legal terms and explains court procedures in simple, clear language rarely seen in this type of document. He also picks apart common myths about sexual assault and cautions that there's "no right or wrong way to act when you are a victim."
Most significantly, Wolf lays out what it means when he says he cannot convict the man accused of raping this teenager, despite the evidence of wrongdoing.
"Please do not mistake the concept of an acquittal with the concept of innocence. The accused and these other males are guilty of not taking care of these young girls," Wolf wrote.
Attacker's identity in question
Many of the details of the attack are redacted from the judgment in order to protect the identity of the victim, including both her and the accused's names, the two First Nations to which they belong and the community where the assault took place.
There is no doubt that the 14-year-old was raped, according to the judge. The central question was the identity of the person responsible — specifically, if it was a man with the initials N.M. who was charged with sexual assault and sexual interference.
The victim, known as C.H. in the judgment, told the court she blacked out on a motel bed after she and two friends had drinks with up to five previously unknown men in their 20s and 30s. She testified that when she woke up, there was a man forcing himself on her.
Judge Alexander Wolf said he invited representatives of the victim and the accused's First Nations to court to hear his judgment. (Cliff MacArthur/provincialcourt.bc.ca)
When C.H. made it home, she told her mother what had happened and her mother immediately told her to take off her clothes to preserve the evidence and drove her to the hospital for an examination, the judgment says
"I was a bit surprised that anyone would have the ability to act so rationally and with such immediacy," Wolf said of the mother.
"I had a better understanding how she could react so appropriately when she told the court that she had also been raped … when she was 16."
DNA evidence taken during the examination was inconclusive. C.H. told the court she only saw her attacker's face for one or two seconds, and she initially told police that a different man had raped her.
It also appears that somehow, none of the men who were in the motel room that night were questioned by police, according to Wolf.
Astonishing! Why not? If they weren't questioned, then were they required to submit samples for DNA analysis? Was this an RCMP investigation?
Victim 'emotionally, psychologically and spiritually scarred'
"What do we know? We heard testimony that N.M. invited underage girls into his hotel room, and that he and his friends gave them alcohol. We also heard evidence that he grabbed the butt, took off the bra and kissed one of the young girls," Wolf said.
The court also heard evidence that N.M. had dropped his pants in front of another girl, and repeatedly invited them to sit on his lap.
"Do I think it is possible he hurt C.H.? Yes, I think we all know that is a very real possibility," Wolf wrote.
But the standard of proof in criminal law is not what is possible or even probable, the judge said. Rather, it's about what can be proven beyond a reasonable doubt.
In this case, that bar was not met.
Nonetheless, Wolf said each of the men in the motel room that night failed in their responsibility to those girls, and the result is another "emotionally, psychologically and spiritually scarred" young person.
"This case is illustrative to me that there is intergenerational trauma caused by the residential school system that has flowed from our grandmothers down to our grandchildren," Wolf said.
I have been writing about this for several years now. Residential School trauma is likely responsible for several generations of child sexual abuse and incest in indigenous peoples. It must therefore also be responsible for many of the child suicides that plague so many northern communities. Until the federal or provincial governments do meaningful studies on this, there will be no end to it.
C.H. and N.M. belong to two different First Nations, and the judge invited representatives of both communities to attend court for his judgment in a gesture toward future healing.
"I do not have enough cultural knowledge to make suggestions of what can be done. Nor do I think it is my place to direct communities to do certain things, and I will not. But I would welcome the opportunity to be part of any community driven restorative justice approach that might be undertaken," Wolf said.
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