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DEFENDING AGAINS SEXUAL ASSAULT CHARGES: - PART 2 - PRIVATE RECORDS AND BARKING UP THE WRONG TREES

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The following article is meant to outline common themes in the legal defence of accusations of sexual crimes.  It should not be relied on as legal advice.  To obtain legal advice for your specific situation, you should speak to a criminal lawyer directly.

 

Part I of this article discusses some initial steps accused persons can to take to increas



e the odds of success at a sexual assault trial.  In particular, it discusses strategies in the early innings. 

 

Once an accused person or his lawyer has done the legwork on collecting evidence not in disclosure (e.g. determining a complainant’s motive to lie, or locating her prior social media writings about the offence), the accused should manage his expectations about how that evidence can be used at trial.  In particular, the accused should be aware that some types of records cannot be used to surprise or ambush a complainant at trial.

 

The accused should also learn what arguments are more likely to succeed.  Specifically, a good defence lawyer tries to show that the complainant is not credible because her story about the assault changes – not because only true sexual assault victims would act in a way contrary to how the complainant acts or acted. 

 

 

Strategizing: deciding how to use the complainant’s private records

 

Once you have been charged, you and your lawyer should get disclosure from the prosecution.  The disclosure is all of the evidence the prosecution and the police have in relation to your case.  If you’ve played your cards right, there should not be anything in the disclosure about statements you made regarding the alleged sexual offence. 

 

If you are really prepared, you will have the complainant’s prior inconsistent statements.  You and your lawyer should devise a strategy on how to contradict her with her previous statements.  This can work wonders in making her seem less believable.  The only bad news is that you will probably not be able to surprise her with those statements.

 

In most types of cases, the defence has an important power which the prosecution does not: the power of ambush and surprise.  Because the prosecution must disclose all relevant evidence to the defence, it can never surprise him with a document/statement he did not already have in his possession.  The defence can do this to the prosecution and complainant in most types of cases, such as domestic assault cases.  This rule does not apply to sexual assault and sex-related cases.

 

When it comes to sexual assault (and related sexual offences), you will need the court’s permission to use a complainant’s private records that didn’t come in disclosure, and you will need to apply for that permission before the trial. 

 

You will need such permission for any record she could reasonably expect would be kept private.  A good example would be a screenshot of a text conversation she had with you or with her friend.  Once you notify the court that you intend on using such records, the court must tell the complainant that you intend to use them.

  This rule makes cross-examination much more difficult.  It alerts the complainant to your possession of the records, as well as your intention to confront her with them at trial.  Aware of the defence’s strategy, the complainant is in a better position to anticipate contradictions, avoid them when being cross-examined, and concoct explanations for previous contradictions when testifying at trial.

 

This requirement is new to sexual assault cases, and it is unfortunately here to stay.  Prior to 2018, the defence could contradict a complainant by surprising her with a record (e.g. an email) that she totally forgot about.  In 2018, the Canadian government, under Prime Minister Justin Trudeau’s leadership, enacted Bill C-51, requiring the defence to seek permission to use any of the complainant’s private records in sexual offence trials. 

 

In 2022, the Supreme Court of Canada upheld the constitutionality of Bill-51 in a case called R. v. J.J., 2022 SCC 28.  Justice Brown wrote a dissenting opinion to the decision.  Justice Brown stated, as follows:

 

The risks go beyond the explicit fabrication of evidence, and include the subtle manipulation of testimony by a witness to address the frailties or inconsistencies disclosed in advance by the defence [citation omitted]. Again, and contrary to the assertions of many Attorneys General and interveners, this concern is not based on stereotypical reasoning about the untrustworthiness of sexual assault complainants, but simply a recognition of human nature. Even where the accused can establish an inconsistency against the complainant’s police statement, the complainant will be given an opportunity to reconcile competing accounts.

 

[ . . . ]               

 

And that is where the danger of wrongful conviction lies. Impeachment of a Crown witness, including impeachment by surprise, is a legitimate and valuable defence tactic, which the regime eviscerates. [Underlining added for emphasis]

 

Justice Brown determined that this reverse-disclosure obligation heightens the chances of wrongful convictions of sexual offences.  Justice Brown, however, was not in the majority.  The majority decided that this reverse-disclosure regime is lawful, and there is nowhere higher to appeal to than the Supreme Court of Canada.  Because the Supreme Court upheld the constitutionality of this reverse-disclosure requirement, it will continue to be the law unless a future federal government repeals Bill C-51.

 

With this said, I reemphasize that this rule only applies to records to which the complainant has a reasonable expectation of privacy.  Public writings – such as tweets – will likely not have such protection, and the defence can ambush the complainant with them.  It will be up to the court to determine whether the complainant’s prior inconsistent statement is a ‘private record’.

 

 

Barking Up the Wrong Trees: prior sexual history

 

Like a complainant’s personal records, you will need the court’s permission to refer to any of her sexual experiences that you are not criminally accused of, and you will need to apply for that permission before the trial starts.  One example would be references to the times she has had sex with other people.  Alternatively, the rule encompasses even references to sex she had you yourself before the alleged offence. 

 

The court will not allow you to imply that the complainant’s sexual history itself makes her less believable or more likely to have consented.  For example, you are not allowed to argue that


  • she shouldn’t be believed because she likes BDSM;

  • she shouldn’t be believed because she worked as a sex-trade worker;

  • she probably consented to the sexual activity with you because she’s a sex-trade worker;

  • she would sleep with you because she would sleep with anyone, or

  • the sexual incident against her you’re charged with must have been consensual because she had consensual sex with you on a previous occasion. 

On cross-examination, the court will not allow you or your lawyer to ask her about her sexual past during unless you have made clear beforehand that you are not asking these questions to draw out these types of prohibited inferences.

 

The defence may refer to her prior sexual history for other purposes though. For instance, suppose the complainant told the police that she found you so repulsive and wouldn’t have sex with you if you were the last man on Earth. If you had a text message she sent a year before the alleged sex assault, and that text message confirms that she gave you oral sex, a court would likely let you confront her with it on cross-examination.  The court would let you use it because the defence always has the right to contradict a witness.

 

This serves as an important example of where the defence should be focused.  The defence should always be focused on contradicting the complainant’s evidence.

 

 

Barking Up the Wrong Trees: stereotypes and obnoxious cross-examination

 

A good defence in a sexual offence case focuses on getting the complainant to contradict her own previous statements.  It does not rely on stereotypes of how true victims usually act. 

 

It will not serve the accused well in court if the defence tries to show that the complainant should not be believed because she is eccentric, has mental health issues, or is of low social standing.  Pointing out that the complainant is a drug-addict or a prostitute will score you no points.  In fact, it will do the exact opposite by making you look like a jerk who believes that drug-addicts and sex-trade workers don’t deserve the protection of the criminal law. 

 

Another poor trial strategy is one where the defence suggests that a true victim would have taken evasive actions that the complainant did not take, or reported it earlier than the complainant reported it.  For instance, it is usually a colossally bad idea to suggest to the complainant and the court during trial that she should have run away from the accused, or gone to the hospital to get a ‘rape-kit’ done. 

 

If you or your lawyer ask the complainant why she didn’t run away or report sooner, you’d better know the answer, and it should be a really good answer that will definitely help the defence.  Otherwise, she will likely say that she was frightened of being hurt, or that she was fearful that her parents would find out about her having sex, or that her kids might get taken away by the Children’s Aid Society, et cetera.  That is a very good way to make the judge and/or jury not like you, and that will not help your case.     

 

In Summary

 

The best way to defend yourself or client is to raise concerns about what she has said about the alleged offence – not because of who she is or where she has gone wrong in life.  Instead, show that she could not observe or remember the incident (e.g. because she had too much alcohol in her body on the night in question); show that she is lying (e.g. by revealing a contradiction that is unlikely to result from a mistake); and/or show a motive to lie.

 

The best way to reveal this is to contradict the complainant with previous statements she has made.  Just manage your expectations, as the chances are that the complainant may tailor her evidence after learning that you have these communications.


This blog is for general informational purposes only. Matthew Wolfson does not distribute legal advice through this blog. As such, this blog does not constitute legal or other professional advice, and no attorney-client relationship is created between the reader and Matthew Wolfson.


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