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Rape Shield Law

What is a rape shield law?

Canada’s rape shield laws were enacted to prevent criminal defendants in sexual assault cases from attacking complainants in court with outdated and false myths and stereotypes about sexual assault victims. In particular, two false assumptions, known as the “twin myths” were outlawed.

What are the twin myths?

The twin myths refer to a woman’s sexual history. Until recently, two false assumptions have been used to attack women in sexual assault cases: these are known as the twin myths. The first is that a woman who is sexually active is more likely to have consented to sex. The second is that a woman who is sexually active is less credible, especially if she is seen to be “promiscuous”.

Why is the rape shield law necessary?

Rape shield laws are necessary to prevent the defendant from using a complainant’s sexual history to attack her credibility.
These laws reduce the chances that the issue of guilt or innocence will be decided on a false premise. These laws are also designed to make it easier for women to come forward to report abuse.

For a complainant to come forward and report that she has been sexually assaulted, she will have to reveal embarrassing details. She will be cross-examined in court and her credibility attacked. It is a long and traumatic process. Because of this, few victims of sexual assault choose to report the abuse. Statistics Canada reported that in 2014, only 5% of sexual assaults were reported to police.

How does the rape shield law work?

Parliament enacted the rape shield law in 1992. It requires that a defendant file a written application if he wishes to question a complainant about her prior sexual history (with the defendant or anyone else). The judge decides whether this evidence can be used by the defendant. It cannot be used to support the twin myths: that by reason of her sexual activity, the complainant consented or should not be believed. However, in some limited circumstances, the prior sexual history will be deemed relevant. The rape shield laws are therefore meant to act as a filter, a way to “shield” the complainant from the improper use of her prior history, and to ensure that such use occurs only in limited, case-specific situations.

Should the rape shield law be expanded?

Some critics argue that the rape shield law should be expanded to limit or exclude other types of questions from cross-examination, for example: whether the clothing a woman was wearing; whether she had been drinking, or whether she returned to the defendant after the alleged abuse, should affect her credibility. We saw this issue debated during the recent trial of Jian Ghomeshi.

The challenge is that a balance has to be struck between protecting the rights of the accused to defend himself, and the right of the complainant to have her evidence evaluated fairly. Each case turns on its own facts, and it is very difficult to law down a rule that is to be applied in all cases. There is now universal acknowledgement that cross-examination based on the twin myths is inappropriate. But drawing the line in other situations is tricky. Is a question, intended to undermine a complainant’s credibility, based on an improper stereotype, or is it a legitimate attempt to reveal an untruth or inconsistency? In the Ghomeshi case, was it the act of sending a bikini selfie to the defendant that was the issue, or was it the fact that the complainant lied about sending it?

It is questions like these that make this area of law so fraught with controversy, emotion and polarized debate. That is one reality that will not change anytime soon.

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