There has been much discussion in the media recently, as a result of the trial of Jian Ghomeshi, about whether further limits should be placed on the cross-examination of complainants by criminal defence lawyers in sexual assault cases.
Some of this discussion was started by law professors such as David Tanovich, who wrote recently that defence counsel have an obligation not to act in a discriminatory fashion when cross-examining a complainant. According to Prof. Tanovich, exploiting myths or stereotypes about how women should act before, during or after a sexual encounter that is alleged to have been non-consensual, violates that ethical obligation.
Let’s discuss a few other myths and stereotypes about sexual assault cases, and how criminal defence lawyers defend them. To address these issues, this article will focus on the most common scenario: a female complainant and a male defendant.
Women don’t lie about sexual assault FALSE
The public conversation about sexual assault is filled with myths and stereotypes, like “rape culture”. Women are not all innocent angels attacked by thuggish men. People who believe in true equality of the sexes appreciate that women are human beings, subject to the same virtues and vices as all human beings. That means some women lie when they accuse a man of sexual assault. She might claim that the sex was forced when it was consensual; she might fabricate the entire allegation. Why would someone lie about sexual assault? To seek revenge; to deflect attention from embarrassing behaviour; to attract attention; to obtain an advantage in a child custody dispute. The list of reasons why someone would lie about being sexually assaulted is as varied as the human condition.
Sometimes (too often) men are violent towards women. Sometimes (less often), women lie about it. That’s life, and that is the history of the human experience. Outlawing that reality won’t change it; it will simply result in more wrongful convictions, of which we have already seen too many in recent years.
Because some people lie, deciding whether a sexual assault occurred, or whether the defendant is guilty of the accusations against him, is not easy. Guilt is a result that must be achieved through the truth-seeking process of a trial. It cannot be determined by social policy; by legislation; or by perpetuating myths about either gender.
The accused is presumed innocent FALSE
True in law but false in reality. Only a trial judge or jury deciding a case assumes that the defendant is innocent, and is required to follow careful procedures before concluding whether the state has proved its case against him.
Nobody else does.
The police don’t. The police do not presume their suspect to be innocent; quite the contrary. Once a complainant makes a statement alleging sexual assault, the police track down the suspect and arrest him; sometimes they ask him for his side before charging him. Rarely will talking to the police convince them not to lay a charge, because the police are not seeking the truth; they are trying to build a case against the suspect. If there were any doubt about how the police presume guilt, one only has to look at the policy of some police departments when an application is made to delete fingerprints and mugshots after the case is over and the defendant is acquitted. It is the written policy of the Toronto Police Service, for example, to refuse to delete the prints of anyone charged with sexual assault, even if they have been found not guilty after a trial. Even when their constitutionally guaranteed presumption of innocence has been confirmed by a court. That is how entrenched the assumption of guilt is.
The prosecutor doesn’t. When the police lay a charge and send the accused to court, the Crown attorney assumes that the case the police have given them is viable. They prosecute the accused because to do otherwise would undermine society’s efforts to combat sexual assault and to encourage complaints to report their allegations. The threshold to continue the prosecution is low: the Crown need only show that they have a decent shot (a “reasonable prospect”) at winning a conviction; and that it is in the public interest to do so (policy tells them it is almost always in the public interest to prosecute such cases).
The media doesn’t. When the media refer to a complainant, they call her a “victim”. That terminology is in itself a rush to judgment, especially in cases where the issue is consent. When the police issue a press release describing the allegations, they often claim to be concerned that there might be other “victims” somewhere, and encourage them to come forward. For good measure, they include the name, details, and photo of the accused. The media then seize on this to publish details about the allegation as if they were true. For their own protection, they will slip in the qualifier that the allegations have not yet been proven in court. However, if a defendant were truly presumed to be innocent, he would be shielded from the inevitable conclusion that society will draw against him when they see his mugshot posted in the paper and the salacious details revealed inside. Of course, the defendant cannot respond, because he has to worry about defending his innocence in court. As a result, the dirty details are played and re-played in the media for a long time before the defendant ever has a chance to respond. And if he is found Not Guilty, nobody can undo all the bad publicity that is already, and permanently, out in the public domain.
If the police arrest and charge someone, he must be guilty FALSE
Police usually assume that a complainant is telling the truth. They do this because it is easier to charge someone and let the courts figure it out, than to make the tough call about whether to lay the charge in the first place.
Also, it is politically easier to justify a policy of “charge first, ask questions later”. Modern society quite rightly does not tolerate sexual assault, and understands that in the past, such cases were not taken seriously enough, and handled poorly by the justice system. Law and policy have sought to correct that imbalance, through rape shield laws and policies designed to encourage complainants to come forward. The result is that more people are charged, and more cases go to trial.
If people believe that the police only arrest and charge individuals with a serious crime like sexual assault after a thorough investigation, think again.
Because of the emphasis on correcting past wrongs, and encouraging more women to come forward with allegations of sexual assault, police often fail to investigate a case thoroughly, and rush to judgment. They do not keep an open mind about whether to charge a suspect; they might offer him an opportunity to tell “his side” of the story, but more often than not, the goal of that “interview” is to build a case against him, not to determine whether the allegation is true. Too often, they fail to interview other witnesses, or dig beneath the surface of the complainant’s statements. That does a disservice not only to the suspect, but to the complainant as well, especially when she finds herself being cross-examined months or years later.
A complainant is alone when she faces the ordeal of a trial FALSE
Historically, a woman who accused a man of sexual assault did so alone. Society did not assume that she was telling the truth; the police were skeptical; laws required corroboration and institutionalized certain myths and stereotypes.
That is not the case anymore.
From the moment a complainant comes forward with an allegation, a blanket of protection surrounds her. The police assume she is telling the truth and provide her with contact information to stay in touch with them. She is offered support from the Victim Services branch of the police department and access to social services in the community.
Once the case is in court, the complainant is helped and guided through the process by the Victim Witness Assistance Program, a branch of the Crown attorney’s office; and sometimes by the prosecutor in person. A complainant is perfectly entitled to hire a lawyer to prepare her for court, just like a defendant is. Many criminal lawyers now specialize in this area.
Laws permit a complainant in some cases to be physically separated from the defendant through the use of screens or video testimony from outside the courtroom.
Most importantly, the law has been changed to prevent a complainant from being asked about her sexual history, or from the defence accessing her private or therapeutic records, except in exceptional circumstances.
Most judges keep defence lawyers on a tight leash when it comes to cross-examination of a complainant. Questions that are deemed to be irrelevant or collateral, or intended to embarrass or humiliate the witness, will be disallowed. Questions asked in an angry, repetitive or abusive fashion will not be tolerated.
Cross-examination is indeed a powerful “engine of truth”. But because of its power, it is not unfettered or unregulated. A judge who turns a blind eye to abusive cross-examination, or who uses outdated myths and stereotypes to disbelieve a complainant is now subject to criticism on appeal; bad press, public shaming, and even disciplinary proceedings by the Judicial Council.
“Whacking the complainant” is a defence strategy FALSE
The law professors who are advocating for more limits on cross-examination of complainants in sexual assault cases have coined this term. It is not a strategy. It is not taught in law school, at the Bar admissions course, or in advocacy seminars. As teenagers would say, it is not a “thing”.
Abusive cross-examination is not a strategy; it is poor advocacy. It is an error in judgment, and it is negligent. Not because it hurts the complainant, but because it hurts the defendant. A lawyer who abuses a witness will incur the wrath of the Court, and likely an adverse verdict.
A trial lawyer is a professional, experienced in the courtroom setting. A complainant is not. If the complainant lies, she is the problem, and the Crown’s case will suffer. But when a defence lawyer is disrespectful, overly aggressive, and unfair, he is the problem, and his client will suffer.
A defence lawyer who abuses a witness does indeed violate an ethical obligation: to his client, to prepare and present an effective defence.
Being cross-examined is like being raped all over again
NO IT’S NOT.
Having to recount the allegations and answer questions about them is unpleasant, embarrassing, maybe even humiliating for the complainant. But talking about it is not the same thing as being sexually assaulted. To say so is to minimize the trauma that victims have experienced.
A trial is necessary to determine whether the offence alleged is true or not. It is necessary because the consequences of committing a sexual assault are serious: jail, a criminal record, sex offender registration, social stigma, loss of employment, travel restrictions, and more. There is no compensation if a defendant is acquitted of a false accusation. There is no blowback or charges or penalties against the complainant for having come forward. But no one will issue a press release or delete the negative publicity that has been posted about the defendant online. No one will proclaim that his innocence was confirmed.
In Canada, an individual must be proven guilty before such severe penalties are imposed. The Supreme Court of Canada once said, famously, “a trial is not a tea party”. That is the truth. If someone’s life, career and reputation are to be destroyed by the state, it will not and should not be easy to do so.
Disclaimer: please note that this blog contains information that may be of interest to the reader. It is not legal advice. For legal advice, you must retain a lawyer.
For further information concerning your particular situation, please contact The Defence Group at 416-363-1331. We are pleased to offer our clients a free consultation, reasonable and flexible fees, and experienced, knowledgeable service.