The sexual assault trial of Canadian musician Jacob Hoggard turned on a central issue: consent.
Commander Headley was found guilty of one charge of sexual assault causing bodily harm against one of two complainants on Sunday, but was acquitted of the same charge as well as a number of sexual interference linked to a teenage fan.
At the core of the proceedings was disagreement over consent, as is often the case in sexual assault trials, observers say.
The Crown alleged that Hoggard violently and repeatedly raped a teenage fan and a young Ottawa woman in two separate incidents in the fall of 2016, while the defense argued that the sexual encounters were consensual.
Lawyers and advocates say high-profile cases like Hoggard’s have the potential to shape our understanding of consent, exposing harmful misconceptions that pervade courts and society at large.
“It’s great that you’re trying to shed light on some of these stories and it’s also troubling,” Toronto criminal and constitutional attorney Megan Stevens said in an interview before the sentencing.
“It’s these kinds of issues that make people wonder if they should come forward and report what happened to them.”
Stevens said Canada has some of the most advanced laws on the books about consent in sexual assault cases. She said that the problem lies in how to implement the text of the law.
Criminal law requires that consent be positively communicated through a person’s words or behaviour, i.e. through signals that indicate “yes”, rather than the absence of a “no”. Consent can be withdrawn at any time in any sexual encounter.
Ontario Superior Court Judge Jillian Roberts told the jury that decided Hoggard’s fate that consent in the context of a sexual assault case relates to whether the complainant “in her mind would want sexual touching to happen,” citing a regional appeals court ruling.
Stephens, a former attorney for the Crown, said this “subjective standard” means that many sexual assault cases boil down to a jury’s assessment of the credibility of the complainant and the accused based on the evidence they present.
Jurors usually do their best to comply with the law, she said, but identity can influence their decisions and what and what evidence to believe.
Several observers noted the gender imbalance in Hoggard’s jury, which appears to consist of 10 men and two women.
“We’ve learned a lot over the past few years about implicit biases and how they can affect our understanding and experiences. And I think the jury system is not immune to that,” said Stevens, who advocates for women’s rights in the justice system. .
“People sometimes have a hard time understanding other people’s experiences when they have never been in this place, whether it is a male juror who understands the complaining woman or a white juror who understands the experiences of a black woman.”
Pam Herrick, executive director and general counsel at the Women’s Trust for Legal Education and Work, said Canadian courts are grappling with the “myths and stereotypes” that have plagued the legal process, but that even judges are vulnerable to falling prey to them.
Hrick said that Canada’s highest court has issued a number of rulings in recent years concluding that lower courts erred in their application of the sexual assault law, and that it was a course correction in a system that subjected complainants to unfair scrutiny.
Hrick said this shows how the #MeToo movement’s social reckoning has been reflected in the courts, but there is still work to bridge the gap between Canadian law and our evolving understanding of consent.
“I think there is a gap sometimes between the public’s understanding of implementing or developing the law,” she said. “We need to be vigilant in continuing to push for change and keep trying to protect some of the gains we’ve made.”
Farah Khan, director of the Consent First Program at the Office of Sexual Violence Support and Education at Toronto Metropolitan University, said Hoggard’s trial shows how misconceptions about sex and consent persist both in and out of the courtroom.
Defense lawyers alleged that the complainants lied about being raped to cover up their embarrassment after the “rock star” turned them down.
Khan said the defense novel fed familiar tropes, such as the “abandoned lover” who is embittered by unrequited feelings and the collectives that fall into the bondage of a famous musician.
She added that there are power dynamics in the case, such as differences in age and social status, which Canada’s consent laws do not take into account, but which nonetheless can affect how sexual violence survivors process their own experiences.
“It’s important that survivors understand this, because sometimes you can light yourself with gas in these situations,” she said. “Just because you wanted to see someone, just because you wanted to kiss someone doesn’t mean you want to be sexually assaulted.”
The Canadian Women’s Foundation conducted an online survey of more than 1,500 Canadians in 2018 and found that only 28 percent of respondents fully understood what it means to give consent, down from 33 percent in 2015 before the emergence of the #MeToo movement.
With so many young people growing up listening to Hedley trace the Hoggard case, Khan said she worries the next generation will suffer similar confusion unless we start prioritizing consent and pleasure in sex education.
“The challenge is that we treat consent like a checkbox,” she said. “Consent is a conversation… it is ongoing and can be reversed.”