Presumed Guilty – Five Ways the Deck Is Stacked Against You in Sexual Assault Cases

Blog by Arun S. Maini

If you are charged with sexual assault, you are more likely than ever before to be found guilty and severely punished.

Here are five recent changes to the law that have reduced your options and have made it easier for prosecutors to obtain a conviction:

• Preliminary hearings have been abolished in all but the rarest of cases;
• You must reveal your evidence and strategy to the Crown and to your accuser;
• You now have to ask permission to use much of your evidence, and courts are saying No more often;
• You no longer have a say in jury selection;
• You have to prove your innocence.

No more preliminary hearings

A preliminary hearing is a chance to question your accuser about the allegations before trial. Because the police no longer ask tough questions and no longer conduct detailed interviews, a preliminary hearing is a critical opportunity to seek clarification and more detail about the allegations against you, so that you know what it is that you are being accused of.

This is the most valuable tool that a defence lawyer has to win the case and to expose problems with the evidence. This most valuable procedure has been abolished in almost all sexual assault cases.

The government gave two reasons for eliminating this important defence: they claimed that exposing the accuser to questioning is traumatic and must be limited; and that preliminary hearings cause additional delay in the justice system. Both of these reasons have been proven to be wrong in many respects.

Because there is no opportunity to test the strength of the Crown’s case, more cases are sent to trial instead of being resolved. This adds rather than reduces delay in the system. Also, because there is no opportunity to ask questions that might narrow the issues at trial, those trials tend to take longer, adding to backlogs and delay.

Because more cases go to trial, and there are fewer guilty pleas, fewer cases are resolved before trial and more complainants now have to testify for longer, thus exposing them to the very trauma that the government claimed to be seeking to avoid.

You must reveal your evidence and strategy to the Crown and your accuser

The law now requires you to turn over to the Crown, the complainant and the court any messages or communications that can be connected to the complainant. You must also reveal any questions that you might wish to ask your accuser about any other sexual activity or any kind of sexual communication that you may have had.

Well in advance of trial, you will have to explain in a detailed, step-by-step fashion why and how you might wish to use this evidence at trial, and how it might help the defence. Obviously, that will permit the Crown and your accuser to know your strategy and the questions you plan to ask, and to prepare their response. If there are problems with the complainant’s evidence, s/he will know about it in advance and have a chance to fix them before trial.

You need to ask the court’s permission to use your evidence

It is one thing to have to show your evidence to the other side before trial, but that is not all. You also have to ask the judge for permission to use it, and the legal test the judge will apply is not an easy one to meet. The law lists all kinds of reasons to deny you the use of that evidence, and that list keeps expanding.

So it might well be that even after revealing your evidence and strategy to the other side, you will be denied the chance to use it at trial.

You no longer have a say in jury selection

For centuries, a defendant in a criminal case had a say in whether they wished to choose or reject a potential juror who was being considered. That was a chance to try to build a jury that was balanced, whether it be on the basis of occupation, gender, or ethnic background, or simply because you really preferred one juror, or felt uncomfortable with another. A defendant who is black, for example, might want to have a black juror on the case.

The government abolished this opportunity to have a say in jury selection. Your case will now be decided by the first twelve jurors who are randomly chosen from a large group.

One cannot say that this increases the chances that you will be found guilty, but, combined with all the other changes that do, it will make you feel that the deck is stacked against you- because, compared to other types of cases, it is.

You have to prove your innocence

There is another way in which it is getting harder for you to defend against a sexual assault allegation. It is a fundamental principle of criminal law that it the Crown who has to try to prove your guilt, and to do so beyond a reasonable doubt. It is not up to you to prove your innocence.

In sexual assault cases, that principle is being undermined, by changing the legal test of what needs to be proven by the Crown.

It used to be that in sexual assault cases the Crown would have to prove beyond a reasonable doubt that the complainant did not consent to the sexual activity. Any doubts about that would be resolved in the defendant’s favour. But now the legal test is becoming broader, as the courts start to expand the concept of moral responsibility. The courts are now applying a “reasonable steps” test, in which the defendant has to show that he took reasonable steps and made reasonable inquiries at each step of the sexual interaction with the complainant. What will constitute “reasonable steps” can only be decided in court after the fact, and provides little guidance to the person who is potentially about to engage in sex.

Realistically, the only way for you to prove that you took reasonable steps at each stage of the physical interaction will be to testify, and to try to prove it. The complainant is unlikely to agree with your version of events, especially if s/he knows in advance what you are going to say.

If you cannot raise a reasonable doubt sufficient to overcome what is fast developing into broader test of what constitutes guilt, you will be convicted.

And once you are convicted, Parliament and the courts have steadily increased sentencing to ensure that punishment will be severe.

Arun S. Maini at the Defence Group has over 30 years of experience as a criminal lawyer. The opinions expressed in this blog are based on that knowledge and experience, and may not be shared by others in the justice system.

If you or a loved one are facing criminal charges and need the advice of an experienced and skilled lawyer to help you through the legal process, call The Defence Group for a free consultation at 877-295-2830 or email us through the Contact Us link throughout our website.