‘Mansplaining our anatomy’: Saskatchewan judge under scrutiny after sexual assault trial

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The Canadian Judicial Council said it was considering a complaint against a judge who recently found a former Regina doctor not guilty of sexually assaulting multiple patients.

The complaint was filed on June 8 by one of five women who had accused Sylvester Ukabam of inappropriately touching them during medical examinations.

Last month, Court of Queen’s Bench Judge Brian Scherman acquitted Ukabam of seven counts of sexual assault that allegedly took place between 2010 and 2017.

The judge said in his written decision that the women were wrong about how they felt.

The woman who filed the complaint had accused Sylvester of penetrating her vagina during a colonoscopy. She said the judge’s decision reflected an underlying attitude of ignorance, misogyny and gender bias that she says is deeply troubling.

“He was explaining our anatomy badly to us,” the woman said in an interview with The Canadian Press.

“A female judge would not have thought of this ridiculous argument, and if one of the victims was a man, it would never have been questioned.”

The woman cannot be named due to a publication ban.

In his ruling, Scherman said the matter came down to the reliability of the evidence and that he found no reason not to believe Ukabam, who was “logical and consistent” in his testimony.

“His medical justifications, or explanations of what allegedly happened and why, were in the context of the Crown’s own expert witness,” the judge said in his ruling.

Dr. Barry Lumb, a gastroenterologist, had testified in the trial that drugs given to women during their medical procedures can affect memory and that women can experience deep pain in the pelvic region during rectal exams.

The woman wrote in her complaint that because she had a female anatomy, her testimony was considered to lack credibility.

“Women ‘mistaking’ our vagina for our rectum is as ridiculous a concept as men confusing their penis with their rectum,” she said.

“I strongly believe that this judge would not have questioned a man’s ability to differentiate his genitals from his rectum. Because we are women, however, the judge accepted this ridiculous argument as reasonable.”

The Saskatchewan Courts website says that last year Scherman was granted supernumerary status, which means he hears a reduced number of cases. A spokeswoman for the province’s judges said Scherman declined to comment on the complaint.

The complaint against Scherman was filed days before the Crown appealed the decision.

The Crown argues in its notice of appeal that the judge erred in denying its application to admit similar fact evidence, in failing to consider the totality of the evidence and in speculating on which were not in evidence.

Ukabam’s attorney said he would file a cross-appeal.

“In light of the evidence and the trial judge’s findings, we are disappointed that the Crown has chosen to appeal,” Aaron Fox said last week.

The complainant said she wrote to the judicial council before she knew an appeal was being filed.

She said that as a mother of girls, it was important for her to speak out. And she wants women alleging sexual assault to be able to “give evidence in an impartially presided over courtroom, regardless of gender.”

A spokesman for the judicial council said the review will take three to six months.

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