All five former members of Canada’s world junior hockey team who were accused of sexually assaulting a woman after a 2018 Hockey Canada gala were acquitted in a London, Ont., courtroom Thursday.Carlos Osorio/Reuters
Stacey Hannem is professor of criminology and gender and women’s studies at Wilfrid Laurier University. Christopher J. Schneider is professor of sociology at Brandon University. They are the authors of Defining Sexual Misconduct: Power, Media, and #MeToo.
Last May, a viral meme asked women to consider if they would rather find themselves alone in the woods with a bear or a strange man – and many were shocked that so many women chose the bear.
The acquittals of five former members of Canada’s world junior hockey team on sexual-assault charges last week raise a new question: Would you rather be alone in a hotel room with a bear or five men? Unfortunately, if you found yourself in a hotel room with a bear, at least everyone would believe that you were afraid.
Quoting one player’s defence counsel in the reasoning for her ruling, Justice Maria Carroccia reminds us of their position: “There is no consent-vitiating level of fear.” The signal that those words send to the women of Canada: no matter how afraid you are, if you didn’t say no and you didn’t fight back – if you did not clearly and visibly demonstrate that you were afraid and not consenting – your consent is valid under the law. That reinforces a dangerous rape myth that if a woman does not fight back, she is consenting to sex.
Analyzing Justice Maria Carroccia’s Hockey Canada verdict
The alleged incidents described by complainant E.M., occurred in London, Ont., in June, 2018. That year, headlines declared 2018 the “Year of #MeToo” – the international movement of women bringing awareness to the widespread problem of sexual violence by naming and shaming perpetrators of inappropriate sexual conduct. Those #MeToo conversations highlighted the role of power and of the fear of repercussions, which make women vulnerable to sexual violence and lead to trauma responses.
Fight or flight are the most prominent of these, but plenty of studies in psychology make clear that “freeze” is just as common a response to fear as fight or flight. However, there is a rarely discussed fourth F: “fawn.” It’s the instinctive response to placate and go along with the perceived source of danger to protect oneself from further violence.
We need to better understand how responses to fear and trauma play out, and consider them within our justice system. But the Hockey Canada verdict demonstrates that the law and its arbitrators have not yet integrated the impact of power and fear in shaping victims’ behaviour.
E.M.’s testimony suggested that power and the fear of possible violence, in this case, lay in the accused men’s athletic physiques and their collective number in a confined space. There was also power at play in their status as star hockey players – a status that likely set the stage for an encounter in which fawning and acquiescence seemed the safest option. In a case where all parties agree that sexual interactions took place and the question of consent is the determining factor between a crime and no crime, power is no small matter.
Justice Carroccia’s ruling is eerily reminiscent of the 2016 trial and acquittal of Jian Ghomeshi, once a widely admired Canadian radio personality. Mr. Ghomeshi was charged with sexual assault but ultimately acquitted because the judge compared the complainants’ testimony against earlier statements made to media outlets and police, and inconsistencies were interpreted as damaging to their credibility.
After the Hockey Canada verdict, advocates fear survivors will fall silent
Similarly, E.M.’s recollections were compared to her earlier statements to police and in her civil suit; inconsistencies such as a correction in her weight and her failure to tell the police that she was afraid in her initial statement raised reasonable doubt about her claim that she did not consent.
Yet no responsibility was placed on the five men to have ensured free, active, and continuing consent.
No question was raised about the credibility of accused player Michael McLeod who, in his initial statement to the police, claimed that he did not text to invite his teammates to his room for sex with E.M., but that they came instead for food – despite the only co-accused to take the stand, Carter Hart, testifying that he had been invited to the room for a “3 way.” As with Mr. Ghomeshi and scores of other cases, it is only the complainant whose credibility is on trial.
Women’s stories of sexual violence are routinely dismissed, and women are painted as liars – putting themselves on the stand to trap unsuspecting men who claim they had no idea they did anything wrong and believed that they were having consensual sex.
The sad irony is that, absent a weapon, fawning looks a lot like consent. We need to consider that fear can manifest in a range of responses, and that it has nothing to do with victims’ credibility.