Alexander Wagar, 29, is facing a retrial for accusations of raping a woman, now 24, in a bathroom after flashing people at a 2011 house party in Calgary, Alberta

When a Canadian judge asked the complainant in a sexual assault trial why she couldn’t just keep her knees together, his comments provoked outrage across the country and resulted in a new trial.

Now the retrial of the same case is the subject of fresh controversy, after a defence lawyer suggested his client’s penis size may have been a factor in whether the woman consented to sex.

The incident at the heart of the case – which campaigners say highlights the “horrendous” treatment of sexual assault survivors in the courtroom – took place at a 2011 house party in Calgary, Alberta. Alexander Wagar, 29, is facing accusations of raping a woman, now 24, in a bathroom.

This week in a courtroom in Calgary, a lawyer for Wagar asked the complainant during cross-examination if she had been attracted to Wagar after he flashed partygoers and she saw that he was “larger than most men”.

The woman, whose identity is protected by a publication ban, said no. The lawyer then noted the two had spent a lot of time in the bathroom and suggested they had engaged in “aggressive foreplay”. The woman, who repeatedly told the court that she is attracted to women, again replied no, according to the Canadian Press.

Wagar told the court that the sex was consensual. “She grabbed my penis and complimented the size of it,” he said. “She never told me no … She never said ‘stop’ or ‘you’re hurting me.’”

The retrial comes some two years after Wagar was first acquitted by Judge Robin Camp. The trial made headlines around the world after it emerged that Camp had repeatedly asked the complainant why she hadn’t done more to prevent the attack. “Why couldn’t you just keep your knees together?” Camp asked her. Later he told her that “sex and pain sometimes go together”.

Throughout the trial, Camp erroneously referred to her as the accused and at one point asked the complainant – who said the alleged assault took place on a bathroom sink – why she hadn’t sunk her “bottom down into the basin so he couldn’t penetrate you”.

After Camp’s comments came to light last year, a new trial was ordered by the Alberta court of appeal. In September, an inquiry probed whether Camp should be removed from the bench.

Camp apologised for his remarks. “I was not the good judge I thought I was,” the 64-year-old told the inquiry. Camp, who was born in South Africa and moved to Calgary in 1998, said he had not understood the changes made to Canadian laws aimed at sheltering sexual assault complainants from discriminatory attitudes.

The inquiry also heard from the female complainant, who said Camp’s remarks had left her contemplating suicide. “What did he get from asking that?” she asked. “He made me hate myself and he made me feel like I should have done something … that I was some kind of slut.” The Canadian Judicial Council has yet to release its decision on Camp’s fate.

This week’s retrial forced the woman to again deny that she had fabricated the rape allegation. She pointed to the hours of questioning she had been subjected to during the two trials. “Why would I want to go through something like this if it wasn’t real?” she asked the court.

Kim Stanton of the Women’s Legal Education and Action Fund said that the woman’s treatment in court was all too familiar. “This is unfortunately very common,” said Stanton. “It’s not whether she complimented him on how he was dancing or was friendly with him, it’s whether she consented to the sex. And the idea that it’s about anything other than that simply perpetuates the myths that we’re really trying to avoid.”

Canada judge critiques system in sexual assault case: 'No one asks to be raped' Read more

She drew a direct line between the treatment of complainants in court and low reporting rates for sexual assault crimes. “What she’s been subjected to is indicative of why so many survivors don’t report to the police about sexual assault, because the kind of treatment that they then endure in the criminal justice system is pretty horrendous.”

Figures from Statistics Canada suggest that for every 1,000 sexual assaults believed to take place in the country, only 33 are ever reported and just three result in convictions.

She described the complainant – a young indigenous woman who was homeless at the time of the alleged assault – as brave for enduring a second trial, especially considering how she was treated in the first trial. “For her to have come forward at all, let alone to have persevered, is actually unfortunately, quite remarkable in Canada.”