If you have a Google alert for “judicial ethics” you are not surprised to find that there are judges in the United States and Canada who say some really outlandish things. There is a recent comment by a judge in Kansas about young girls (the victims) who were the aggressors. There is the Canadian judge who asked why you could not just keep your knees together. It is depressing. Michaël Lessard (New York University (NYU), School of Law) has posted an abstract of Why Couldn’t You Just Keep Your Knees Together? L’obligation déontologique des juges face aux victimes de violences sexuelles [trans. ‘The Ethics of Judging Sexual Assault Cases‘] ((2017) 63:1 McGill Law Journal 155) on SSRN. Here is the abstract:
In recent years, high-profile cases have shed light on the behaviour of certain judges towards victims of sexual violence, thus undermining public confidence and victims’ confidence in the judicial system. Among these cases, there is the one of Judge Robin Camp who asked a victim: “why couldn’t you just keep your knees together?” This statement has had the effect of putting the spotlight on a section of the judiciary which still contributes to the myth of the “good victim” (or “perfect victim”).
In this text, I argue that judges commit a breach of judicial ethics when they make a remark or a statement that (1) is likely to maintain the myth of the good victim, (2) participates in one of the four related stereotypes condemned in law and (3) is not justified by its relevance and necessity for legal reasoning.
The article is divided into three parts. In Part I, I briefly describe the stereotypes covered by my proposal. It is limited to the four stereotypes that are part of the myth of the good victim and would constitute an error of law if they were the foundation of a legal reasoning. These four stereotypes are: (i) a sexually active woman is more inclined to consent and therefore less credible; (ii) a woman who does not report her attacker immediately after the assault is not credible; (iii) a woman who did not resist aggression surely consented; and (iv) a woman in therapy is more likely to lie. Legal reasoning based on any of these stereotypes would be affected by an error of law. In Part II, I discuss the legal basis of the ethical obligation not to promote the myth of the good victim. In Part III, I illustrate my proposition by reviewing the judgment of Justice William B. Horkins in R. v. Ghomeshi.