Proving Sexual Assault

Few sexual assault cases have received as much attention in the Canadian press as the ongoing Jian Ghomeshi trial. The former CBC Radio and TV host faces four charges of sexual assault and one of choking. Regardless of opinion on the defendant’s innocence or guilt, Canadians who have been following the trial gained a clear understanding of the fact that the decision on Ghomeshi’s guilt will largely rest on the credibility and reliability of Ghomeshi’s accusers. Jian Ghomeshi did not testify in his defence which has been suggested is a sign of the strength of the defence’s case and confidence that he will be acquitted of the charges. In most sexual assault cases, defence lawyers will call their client to testify unless there are compelling reasons not to such as a weak Crown case or if the accused has a significant prior criminal record which the Crown will attempt to introduce if the accused testifies.

Penalties for Sexual Assault in Canada

Sexual assault is treated as a very serious crime in Canada and has serious legal repercussions. The prosecution may choose to try a sexual assault case as an indictable offence, which can result in a maximum jail term of 10 years, or the Crown may elect to proceed summarily with a maximum sentence of 18 months in jail. Either way, if convicted, the accused faces a criminal record which can make it difficult to obtain future employment and travel outside of Canada. Conviction also results in stigma in the community for the rest of the accused’s life, and they will likely be required to register with the Sex Offender Registry. If a defendant is found guilty, a judge will determine sentencing based on a number of aggravating and mitigating factors, taking into consideration: an accused’s prior good or bad character, positive character references, any remorse shown, whether the accused has a previous criminal record and the circumstances of the assault among other factors.

Proving a Case

In most sexual assault cases, the testimony and credibility of the alleged victim is the most crucial evidence, and a determination of guilt or innocence often comes down to a ‘he said, she said’ scenario. In fact, sometimes the victim’s testimony is the only evidence capable of supporting the charge. This is particularly true the more time that has passed since the alleged assault, as it becomes increasingly difficult to obtain physical evidence many years after an incident may have happened and everyone’s memory fades with time. Besides the alleged victim’s testimony, other evidence that may be presented in a sexual assault case is supporting witnesses testifying regarding the surrounding circumstances, witnesses testifying about the “narrative” regarding what the complainant told them about the offence including the complainant’s emotional condition immediately following the offence, photographic or video evidence, and forensic evidence (such as hair samples, clothing fibres and DNA).

In order to strategize and develop a strong defence, a lawyer will investigate and point to inconsistencies in the alleged victim’s prior statements and testimony. For example, if there are differences between the details given in the complainant’s statement to police and the testimony at trial, the credibility of the complainant’s account can be seriously compromised. Defence counsel will also attempt to point out implausibility in the complainant’s evidence and matters that don’t accord with logic and common sense.

Further, if a witness cannot clearly and consistently recount the details of the incident, they are less credible or reliable as it might appear that the event did not actually occur as initially alleged. Other issues that may weaken the alleged victim’s testimony include whether they harboured previous resentment against the accused and have a motive to lie, perhaps because of a failed relationship, or if they previously falsely accused someone else on a similar charge. If there is reason to believe that the accuser has reason to lie or fabricate a story, and defence counsel brings this to the judge or jury’s attention, they may be able to raise a reasonable doubt that the incident actually happened as alleged.

Increasingly, social media such as Facebook as well as email correspondence, is submitted as evidence in sexual assault cases. If the accused admitted the incident was not consensual, or apologized for the incident online, these statements can damage their case. Similarly, if the complainant sent invitations to get together with the accused or sent endearments after the alleged event, these actions can hurt their case as well.

When the defendant testifies, the key issues in their defence are whether the alleged sexual contact actually took place; or if it did, whether there was consent or whether the accused person had a reasonable belief that there was consent. Consent is a pivotal issue in determining whether the Crown is able to prove beyond a reasonable doubt that a sexual assault took place. Under the Criminal Code, consent means “the voluntary agreement of the complainant to engage in the sexual activity in question”.

The law considers that no consent was given in the following circumstances:

• A person other than the complainant (alleged victim) gave the consent
• The complainant is not capable of consenting (for example, if drugged or unconscious)
• The accused uses their position of power, authority or trust to gain the consent. Children cannot give consent depending upon their age.
• The complainant expresses a lack of consent, in their words or behaviour
• Consent must be ongoing and conscious: if the complainant initially consents but then removes their consent, then consent is no longer valid

In a ‘he said, she said’ situation, it is sometimes difficult to effectively challenge whether the complainant actually gave consent, but the defendant can testify why they truly believed consent was given. In Canada, being intoxicated or under the influence of drugs is not an accepted defence for mistakenly believing that the accuser consented to the act. Also, consent is not assumed just because the alleged victim did not say ‘no’; it is important for the accused to present their side of the situation with respect to having reasonable grounds to believe that the person gave consent.

Anyone who is brought in for questioning or arrested in connection with a sexual assault should contact an experienced criminal lawyer immediately and further, should exercise their right to remain silent as anything they say can be used to build a case against them. In the event that the police decide to press charges, an experienced criminal defence lawyer is needed to build a strong defence and raise reasonable doubt. In my experience, the vast majority of sexual assault charges where the accused does not confess can be won in the hands of a good criminal defence lawyer who has experience handling these types of cases.