Defending Sex Assault Cases in 2108: A Very Difficult Task

To say that defending sexual assault cases in the current social and political climate is tricky would be an understatement.

In Canada, the current movement of support for sexual assault and abuse victims and complainants really started with the Jian Ghomeshi trial and has continued through to now with the Me Too movement. The groundswell of support and media attention it has garnered is impressive. It is important that the public be aware of the hidden issues relating to sexual violence. It is equally important that victims feel that they are able to come forward. On the other side of this movement though there have been problematic outcomes from anonymous on-line complaints and trials by media, with nothing even close to a formal allegation being put forward. In previous blog writings I have written about these problems in detail, so for now I will leave it at that.

There is a line of writing and thought that promotes the idea that sexual assault complainants do not fabricate stories of this nature. In the wake of the current public sentiment towards sexual violence it seems like the general public is more and more coming to a place where they share that same view. Anyone posting an allegation online is seen as inherently trustworthy and immediately the person they are accusing has lost all credibility, and sometimes their career. There is no room for doubt. No room for assessing an explanation. No taste for finding the objective truth. Just judgment.

The problem is, people do fabricate allegations of this nature. Recently there was a story in the news where a local woman complained of a sexual attack, and after much investigation by the police, admitted that the report was false. 

I cannot pretend to know what would motivate a person to fabricate an allegation of this nature, and I think the heart of the problem I’m concerned about is that the vast majority of people can’t.

It is an inevitable natural progression for the sentiment that started online and in the media to find its way into the courtroom. Members of a potential jury have heard all the same stories – and support for those who tell them – that we all have. Lawyers, police officers and all participants in the justice system have as well.

There is a real danger of a reversal of the burden of proof in the courtroom in sexual allegations and an associated increased risk in wrongful convictions.

As defence lawyers, we need to be politically correct, sensitive and work within the limitations placed on us by our code of ethics and the courts, but at the same time vigorously pursue justice for our clients and ensure that there doesn’t become a different standard in the criminal law for those accused of sexual crimes. All people, accused of all crimes, must equally have the full protection of the assumption of innocence. When our system bends toward anything else it is a problem for Canadian society at large.

27 years ago, in a 1991 case of the B.C. Court of Appeal, Mr. Justice Wood recognized this problem and warned against it in his decision in a case called R v. VK (1991 CanLII 5761 (BCCA)) at paragraph 55 :

I have already alluded to the danger, in a case where the evidence consists primarily of the allegations of a complainant and the denial of the accused, that the trier of fact will see the issue as one of deciding whom to believe. Earlier in the judgment I noted the gender-related stereotypical thinking that led to assumptions about the credibility of complainants in sexual cases which we have at long last discarded as totally inappropriate. It is important to ensure that they are not replaced by an equally pernicious set of assumptions about the believability of complainants which would have the effect of shifting the burden of proof to those accused of such crimes. 

It was an important principle in 1991 and it is an even more pressing issue and concern today. As a society we must remain objective and yet compassionate at the same time. It is tricky, to say the least.