(2019) 44:2 Queen's LJ pp. 316-354
Sexual assault trials; evidence; reasoning; Canada
In sexual assault cases, the ability to distinguish myths and stereotypes from legitimate lines of reasoning continues to be a challenge for Canadian courts. The author argues that this challenge could be overcome by clearly identifying problematic inferences in sexual assault cases as prohibited lines of reasoning, while allowing the defence to bring forward evidence that is logically relevant to the material issues so long as it does not raise these prohibited inferences.
This paper advances that judges should take a broad view of relevance as an evidentiary approach in the adjudication of sexual assault cases. This approach allows for a consideration of circumstances surrounding the alleged assault, which may include an analysis of the nature of the interactions between the accused and the complainant leading up to the alleged assault and in its aftermath. This approach is necessary in order for the accused to make full answer and defence. However, common myths and stereotypes about sexual assault are prohibited grounds that the law has rightly removed from legal consideration. The author discusses a number of these myths, with a special focus on the "twin myths' which the law has rejected: that the complainant is more likely to have consented, or is less worthy of belief, given prior sexual activity. Lastly, the author turns to the evidence of the perpetrator and the complainant's relationship subsequent to the alleged assault—where provincial courts have split in determining what is or is not a prohibited inference when examining this subsequent relationship.
This paper ultimately argues that the current challenge facing Canadian courts is ensuring that judges and juries avoid these prohibited lines of reasoning, while retaining broad access to information about the circumstances and the ability to draw reasonable, context-specific inferences. Doing so would bring clarity to this important area of evidence law.
Dufraimont, L., (2019) Myth, Inference and Evidence in Sexual Assault Trials, Queen's Law Journal 44:2, pp. 316-354.