Woman acquitted of historical sex offence against teen stepson

WARNING: This story contains details of child sexual abuse.

An Ontario woman has been acquitted of a sex crime against her teen stepson in Ottawa 40 years ago because the judge couldn't be sure that Canadians in the 1980s would have found it criminally immoral.

It's a rare case because a woman stands accused, leaving the judge in a tough spot with little case law to lean on, according to a law professor who specializes in sexual offences.

Still, Janine Benedet said it would have been helpful for the judge "to recognize just how harmful this was for the complainant, and that there's a risk that we downplay the sexual exploitation of teenage boys by women."

The acquitted woman, now in her late 60s, was charged by Ottawa police in 2021 with committing gross indecency on her stepson between 1979 and 1983, starting when he was 13 and ending when he was 17.

At that time she was in her mid- to late 20s and was married to the boy's father.

Decades later, the alleged victim decided to go to police because his own son had entered his teenage years and it made him think about what had happened, Superior Court Justice Heather Williams wrote in her decision earlier this month.

Neither the woman nor her former stepson can be identified due to a court-ordered publication ban protecting his identity.

'He would be on the ground, frozen'

The alleged victim, now in his late 50s, testified his then stepmother started flirting with him, rubbing his shoulders and putting her hand on his crotch when he was 13, Williams wrote, recounting his testimony.

It escalated to intercourse one night after his father went to bed. He said he froze and did nothing when she touched him over his pants, and that they ended up on the floor. He said he felt "scared, awkward, curious and aroused," then "awkward and dirty" afterward, the decision reads.

Sex continued at least once a month.

"His father would go to sleep, he and [his stepmother] would be drinking wine and feeling good, [she] would make advances, he would be on the ground, frozen, afraid his father would wake up," Williams wrote.

It ended after the woman and the boy's father separated sometime after he turned 18.

Due to inconsistencies in his testimony about when some of the abuse occurred — inconsistences Williams wrote were "very human" after the passage of 40 years — the judge had reasonable doubt that sexual contact happened before he was 17½.

She found that it did occur afterward.

A crime against public morality?

To determine whether it met the threshold of a crime, the judge had to decide whether Canadians back in the 1980s would have found it egregious.

"Would Canadian society at the time have considered this scenario to be exploitive? Would [the accused's] conduct have been considered immoral at the time? If so, would it have been considered to be so immoral as to be criminal?" Williams asked in her decision.

To make that determination, she would have needed to hear expert evidence on sexual customs, conventions and standards of public decency in the 1980s, she wrote.

Because no such evidence was brought by the Crown at trial, Williams was "unable to find" that the ex-stepmother's actions were a very marked departure from what would be expected of the average Canadian 40 years ago, she wrote.

'Tremendous' attention on child abuse in early '80s

Benedet, a law professor at the University of British Columbia, said there are historic gross indecency convictions in which expert evidence on sexual customs and conventions was not required by the courts.

In the early 1980s, when the alleged abuse in this case was happening, there was a "tremendous" amount of public attention on child sexual abuse and the need to start taking sexual offences against children more seriously, Benedet said.

A committee was working on a report for the federal government about sexual offences against children, and books were starting to be published on incest, family abuse and the harmful impact they have, she said.

However, little of that attention focused on teenage victims, or on cases involving female perpetrators and male victims, Benedet added.

"There are just too many cases ... where we sometimes think that the teenage boy got lucky or that this was some kind of sexual initiation, and we don't view it as being really harmful. And I wish that whatever the outcome was on this particular set of facts, that that problem had been recognized and acknowledged," Benedet said.

"The complainant in this case said, I had arousal ... and that often makes the harms worse in the sense that there's a tremendous amount of guilt and shame that then carries with the victim, when the adult never should have put that young person, her stepson, in that position in the first place.

"And so it's important that we recognize that, and we dispel those kinds of stereotypes and misconceptions."

The acquitted woman's Legal Aid lawyer did not respond to a request for comment.

CBC was unable to reach the victim.