Sexual Assault: Five Things You Need to Know
Blog by Arun S. Maini
Sexual assault is one of the most serious charges you can face. It is a crime of violence; it is a “zero-tolerance” offence; and it carries potential long-term consequences for your employment, travel, citizenship and in some cases even access to bank loans or mortgages.
Here are five things you need to know if you are facing sexual assault charges. (Note that the information provided below is designed to assist those facing sexual assault charges to understand how the law works. There are many people who are not facing such charges who may have a different view or opinion about these issues).
1.What is a “zero-tolerance” offence? What does zero-tolerance mean for me?
A zero tolerance offence is a crime which the government has designated as a high priority for prosecution and punishment. There are three main zero-tolerance offences: drinking and driving (DUI), domestic violence, and sexual offences.
If you are being investigated for a zero-tolerance offence such as sexual assault, the police will lean towards charging you, often with minimal investigation. Because there is so much pressure to lay charges in these situations, the tendency of the police is to accept the statement of the complainant as being true, and to go out and charge you with the crime. That way the police cannot be criticized for being too lenient or failing to “listen” to victims. Also, by taking the easy route and laying charges, the responsibility for figuring out whether you are guilty can be passed on down the line, to the prosecutors and the courts.
Similarly, when a prosecutor or Crown attorney receives a zero-tolerance case such as sexual assault, their policies strongly suggest that they believe the complainant and seek a conviction and punishment for the perpetrator. The policies of the Crown now give more say to the complainants to participate in the process, from whether to proceed to trial or resolve the case, motions about evidence, and sentencing input than in the past.
These tough zero-tolerance policies also mean that the prosecutor will not be willing to negotiate a resolution which involves withdrawing the sexual assault charges, or letting you plead to a lesser offence except in the rarest of cases.
Judges are also under a lot of pressure these days to convict. Historically, because these were seen as “he says/she says” cases without additional supporting evidence, defendants were often acquitted. The high rate of acquittals has drawn a lot of critical attention in recent years from academics, the media and activists demanding greater accountability and justice for victims. That has translated into greater pressure to find defendants guilty. Judges are still required and presumed to be impartial of course, but it is clear that the way that these cases are decided has changed. Laws have also been changed to make it easier to convict you by reducing your legal options and restricting what evidence you can call in your defence.
2.Should I have a preliminary hearing?
Yes- if you have the option. A preliminary hearing gives your legal team the right to question witnesses including your accuser in a hearing that takes place well before trial. It is an opportunity to clarify the issues, prepare motions and defences for trial, and in some cases to even highlight weaknesses in the case that can be used to negotiate a better outcome with the Crown.
The preliminary hearing is the single most useful tool that a criminal defence lawyer has to obtain an acquittal in a sexual assault case. And that is one of the main reasons that the preliminary hearing has been under attack in recent years.
Unfortunately for you, as a result of pressure from activists, politicians and some academics, the government in 2018 took away your right to a jury trial in sexual assault cases. Unless you are charged with a more aggravated form of sexual assault, or with murder, you will no longer have the right to the advantages that the preliminary hearing would have given you in defending the presumption of innocence and preparing for trial.
3.Should I go with a trial by jury instead of by judge alone?
Yes- if you have the option. Juries are often excellent at deciding cases like sexual assault because they bring their collective life experience and common sense to the table.
However, just as with preliminary inquiries, the government has changed the law to limit your right to have a jury decide your case. Because those changes to the law in recent years permit the Crown to seek higher penalties and to prosecute offences alleged to have been committed up to 12 months earlier, the prosecution now has the ability to keep your case in the lower court, where you do not have the right to a jury.
Also, if you are fortunate enough to have a trial by jury, you will no longer have as much say in who gets to sit on the jury deciding your fate. The government has made changes to the law designed to restrict your ability to challenge jurors you don’t think would be good for your case, in favour of others who might bring more balance or perspective. Instead, you are more or less required to accept the first twelve people randomly assigned to your case.
Having said all this, however, a jury is often still the better option, if you are entitled to one. Ask your lawyer to advise you about this.
4.Should I testify in my own defence at trial?
In almost all cases, the answer is yes. This is a question for which you will need the benefit of your lawyer’s knowledge and experience to help you decide. The choice about whether to testify is ultimately your to make, but in a sexual assault case, especially one where credibility is key, it is almost essential that the trier of fact who decides the case (whether a judge or a jury) hear your side. By testifying, you not only get the chance to set the record straight, you will receive the benefit of a structured legal approach to the issue of reasonable doubt which will likely increase your chances of being found Not Guilty.
5.Do all these recent changes in the law increase the likelihood of wrongful convictions?
In my opinion, as a criminal lawyer for over 25 years (and one which many people who are not responsible for assisting those facing charges may dislike and disagree with), the changes to the law described above do increase the likelihood of innocent defendants being found guilty. Political and social advocacy has changed the way that the criminal law works in sexual assault cases. These changes give voice to other interests, some of which have been overlooked or ignored for decades or even longer. However, by changing the balance of the contest between the state and the defendant to add other considerations or give voice to other interests, and to limit the options that the defendant has, the risk of wrongful convictions does increase.
It used to be said that society would rather choose, as the lesser of two evils, that a guilty defendant go free (i.e. “get away with it”) before tolerating the incarceration of an innocent party wrongfully convicted. However, in today’s society, other interests at stake (such as the risk of trauma to the complainant from the court process; and streamlining the process and reducing delays) compete for a greater place in the courtroom. In order to make room for these other interests, society now appears willing to tolerate the greater risk of collateral damage in the form of the occasional innocent party being convicted of this very serious crime. No one wants that to happen of course, and many will deny that these legal changes have that effect, but the reality often conflicts with the best intentions.
If you are facing sexual assault charges, you are going to have to navigate a minefield of issues to try to come out safely on the other side. You will need a lawyer with the knowledge and experience to advise and guide you.
Arun S. Maini at the Defence Group has over 25 years of experience with sexual assault cases. 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.
Arun S. Maini is a criminal lawyer and former prosecutor with over 25 years of experience