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You're damned if you do and you're damned if you don't.
After a man claimed that he asked for consent at each stage of a sexual encounter, the trial judge rejected his testimony as being too "politically correct."
https://www.canlii.org/en/on/onca/doc/2021/2021onca131/2021onca131.html
[50] The trial judge’s first observation about JC’s credibility related to JC’s testimony about his practice in securing consent from HD. The trial judge said:
I found JC’s evidence suspect that on each and every occasion when he and HD had sexual activity, that he very carefully put the question of consent to her, and in all instances only proceeded after he specifically requested consent “at each progressive stage of the sexual encounters”. Defence counsel contended that there was no reason not to believe that, especially in respect of the first alleged assault. However, I did not believe JC’s evidence on that issue, and I found that declaration to be too perfect, too mechanical, too rehearsed, and too politically correct to be believed.
[51] The trial judge continued:
JC wanted me to accept that at each and every stage of each and every sexual encounter, he continuously asked HD if he could go further, but this simply is not in accord with common sense and experience about how sexual encounters unfold.
The Ontario Court of Appeal just ordered a new trial, noting as follows:
[97] The trial judge committed the second error of relying on stereotypical reasoning when he rejected JC’s claimed conduct as “too perfect, too mechanical, too rehearsed, and too politically correct.” The trial judge was invoking a stereotype that people engaged in sexual activity simply do not achieve the “politically correct” ideal of expressly discussing consent to progressive sexual acts. This is a generalization because it purports to be a universal truth and it is prejudicial because it presupposes that no-one would be this careful about consent.
[98] In fact, the behaviour the trial judge rejected as “too perfect”, “too mechanical”, and “too politically correct” to be believed is encouraged by the law, and certainly prudent.
After a man claimed that he asked for consent at each stage of a sexual encounter, the trial judge rejected his testimony as being too "politically correct."
https://www.canlii.org/en/on/onca/doc/2021/2021onca131/2021onca131.html
[50] The trial judge’s first observation about JC’s credibility related to JC’s testimony about his practice in securing consent from HD. The trial judge said:
I found JC’s evidence suspect that on each and every occasion when he and HD had sexual activity, that he very carefully put the question of consent to her, and in all instances only proceeded after he specifically requested consent “at each progressive stage of the sexual encounters”. Defence counsel contended that there was no reason not to believe that, especially in respect of the first alleged assault. However, I did not believe JC’s evidence on that issue, and I found that declaration to be too perfect, too mechanical, too rehearsed, and too politically correct to be believed.
[51] The trial judge continued:
JC wanted me to accept that at each and every stage of each and every sexual encounter, he continuously asked HD if he could go further, but this simply is not in accord with common sense and experience about how sexual encounters unfold.
The Ontario Court of Appeal just ordered a new trial, noting as follows:
[97] The trial judge committed the second error of relying on stereotypical reasoning when he rejected JC’s claimed conduct as “too perfect, too mechanical, too rehearsed, and too politically correct.” The trial judge was invoking a stereotype that people engaged in sexual activity simply do not achieve the “politically correct” ideal of expressly discussing consent to progressive sexual acts. This is a generalization because it purports to be a universal truth and it is prejudicial because it presupposes that no-one would be this careful about consent.
[98] In fact, the behaviour the trial judge rejected as “too perfect”, “too mechanical”, and “too politically correct” to be believed is encouraged by the law, and certainly prudent.
