A woman whose partner removed the condom without her knowledge during sexual intercourse multiplies the steps to understand why the Director of Criminal and Penal Prosecutions (DPCP) refuses to lay charges when he admits that she suffered an sexual assault.
In the fall of 2019, Hélène (fictitious name), who asked that her identity be withheld because she was evaluating her criminal and disciplinary remedies, met with a DPCP prosecutor at the Longueuil courthouse, who confirmed to her that her case of stealth (stealthing in English) is “clear”.
“There was a sexual assault”, can we hear in a hidden microphone recording captured by the complainant and whose The duty took cognizance.
“I would have preferred never to go to file a complaint, because after I realized that the guy had no more condoms, he told me that I was reacting like a sick person, that it was not serious, that he was clean in the end”, testifies Hélène. “When I met the prosecutor, what hurt me the most was that even though she told me it was a sexual assault, she confirmed what he had told me, that I had overreact and that it was not serious enough to bring charges. »
The 40-year-old woman filed a complaint with the Longueuil police in the spring of 2019 after her partner did not put on a condom during sex, contrary to what was heard. The recent decision of the Supreme Court in a case of stealth, which clarified why the removal of the condom constitutes a sexual assault, infuriates Hélène. “The next girls who sleep with him, what do we tell them?” she says. “I would like the DPCP to tell us that it tolerates the stealthing… »
“We can understand that this decision may disappoint her, but it is based on an objective analysis of all the circumstances of the case, and it was made in accordance with our directives”, assures the spokesperson of the DPCP, Ms.e Audrey Roy-Cloutier.
The DPCP specifies that cases of stealth are currently before the courts. Recently, a man pleaded guilty to a charge of sexual assault for non-consensual removal of a condom during sexual services for consideration. He received an intermittent sentence of 90 days in detention.
A “well done” attack
Hélène remembers with emotion this meeting of about fifty minutes during which the prosecutor reiterates that the written exchanges between her and her partner show that a sexual assault “has indeed been committed”.
The woman was registered on a dating application when she began to exchange, at the end of the summer of 2017, with Louis (fictitious name), whose identity we are concealing in order to avoid being able to identify the alleged victim. In writing, she tells him that she is not looking for a stable relationship and that wearing a condom is essential if they have sex.
For nearly 18 months, Hélène and Louis saw each other sporadically to have sex. In the winter of 2019, during sex, Hélène notices that he has not put on a condom.
Despite the written exchanges, text messages and Messenger conversations, the prosecutor explains to him that before laying charges, she must also assess whether it is appropriate to do so. The prosecutor then tries to summarize her role and lists several factors that she analyzes to lay charges or not, such as the use of violence or threats. She refers to the different levels of sexual assault, gives the example of touching the buttocks which constitutes “an assault, but of lesser gravity”. “Even if we are convinced beyond a reasonable doubt of the crime, the opportunity ensures that we will not lay charges,” she told him.
It also refers to the principle of minimis no curat lex, which means that the law does not concern itself with small insignificant things. This Latin adage raised eyebrows among lawyers and prosecutors consulted by The duty, who are however not authorized to speak publicly. According to our information, it is very rare to mention this maxim, and even less in matters of sexual assault.
“The prosecutor released the phrase that no victim ever wants to hear in criminal law,” laments criminal lawyer Alexandra Longueville, who advises Hélène for her criminal and disciplinary remedies. ” de minimis […], it is the opposite of sexual assault, it is a maxim that says that if it is not serious enough, the law does not criminalize. It’s really controversial to apply that in a case of sexual assault, ”adds jurist Suzanne Zaccour, lawyer responsible for feminist legal reform for the National Association of Women and Law.
The DPCP confirms that the opportunity criterion is rarely applied in sexual assault cases.
Lack of sensitivity
During the interview with Hélène, the prosecutor insists on the importance of protecting her. Although she assures him that his credibility is not an issue, she points out that reading Hélène’s statement to the police, one could say to oneself “it smells like revenge”.
It’s that Hélène sent a written message to Louis where she informed him that she could file a complaint, but that she was still waiting for his apology. “We can’t blackmail you by saying ‘if you don’t apologize, I’ll file a complaint against you’. […] It is a criminal act,” the prosecutor told him.
The sources in the community consulted by The duty see in the prosecutor’s remarks clumsiness and a lack of sensitivity towards the victim.
Hélène also says that she felt humiliated when the prosecutor returned to the fact that she saw the man she accused. “At the police station, I wrote that I had seen him again after the attack and that I had not been able to resist and that we had sex. There’s even a text [envoyé avant qu’on se voit] who says that I did not want to sleep with him, that I want us to explain ourselves and that he apologize, ”she laments.
“The prosecutor says there’s no evidentiary issue and it’s a sexual assault, but I think it’s pretty obvious that the reasons why she doesn’t want to bring the sexual assault before the courts is based on myths and stereotypes, it evokes the minimisemphasizes that it was not violent, returns to the fact that she saw him again after the attack, ”notes Me Zaccour.
No breach, says the DPCP
Since her meeting with the prosecutor in the fall of 2019, Hélène has been stepping up to have her case reviewed.
In January 2020, Éric Laporte, chief prosecutor of the DPCP’s Southern Quebec office, confirmed to him by email that he was “not able to identify any breach in the prosecutor’s legal reasoning or any contravention of one of the directives [du DPCP] “.
“The audio confirms that you have indicated that you understand the decision made and that you clearly want the suspect to be made aware of the reprehensible, even criminal nature of this behavior, and that you do not necessarily seek that [le suspect] has a criminal record imposed on him,” Ms.e The door.
Moreover, Hélène explains that if she decided to record the meeting, it was because she was afraid of forgetting certain bits of discussion.
“When I left the meeting, I realized that it no longer made sense,” she testifies. “You have no choice but to listen to them, you don’t know anything. […] They seem to be trusted too much, when in reality they have more power than judges because a judge, at least, their decisions must be written down, whereas with the DPCP, the victim is all alone, everything is done behind closed doors, and there is no trace if we do not record. »
When she contacted the General Secretariat of the DPCP in the ultimate hope that her file would be reviewed at the end of autumn 2020, she realized with disappointment the weight of the discretionary power of the prosecutor.
While, by the prosecutor’s own admission, she had solid evidence — a written exchange — Hélène is worried about women who are victims of stealthing who may not have it. “If we don’t punish someone when I have proof beyond a reasonable doubt, that means that everything he did to me, we can do it again tomorrow and there is no problem ? she asks herself with emotion.
“It’s as if my right to protect myself has been taken away. As if I had no right to my sexual security,” laments Hélène.