On behalf of Edelson Clifford D’Angelo Friedman LLP posted in Criminal Defense on February 7, 2016.
“Sexual assault cases are notoriously difficult to prosecute.”
“Those cases that are prosecuted rarely result in convictions.”
“Three quarters of all such charges are ultimately dismissed.”
Judging by the recent media flurry surrounding the prosecution of former CBC radio host Jian Ghomeshi, each of the above statements is nothing less than the unequivocal, gospel truth.
More importantly, these alleged truths lead inexorably to a number of conclusions about our criminal justice system.
Let’s name a few. Criminal proceedings are inherently unfair to victims of sex crimes. Criminal defence lawyers are given too much latitude in their ability to cross-examine sex assault complainants. The criminal law does not go far enough in protecting the rights of sex assault victims.
Mark Twain famously wrote that there are three kinds of lies – lies, damned lies and statistics.
When it comes to these purported truths about sexual assault prosecutions and our justice system, they may not be damned lies, but they are pretty damn close. And, even the worst lies of all – statistics – starkly contradict these tired assertions that have been trotted out ad nauseum by media and activists alike.
First of all, what do the numbers actually reveal?
According to Statistics Canada, there were 3,002 sexual assault charges processed by Canadian courts in 2013-2014.
Of those charges, 1,357 resulted in guilty verdicts – for the arithmetically challenged that works out to 45%. 1,333 of those charges were stayed or withdrawn. And, only 9% (or 269 charges) resulted in acquittals after trial.
And how do sexual assault charges stack up against other criminal offences? Is this conviction rate out of sync with comparable charges?
The simple answer is no. Ordinary assault charges result in conviction in 47% of cases. For criminal harassment, that figure is 46%. Attempted murder, by comparison, nets convictions in a mere 20% of cases.
Even more tellingly, all drug possession offences have an almost identical conviction rate to sexual assault charges – 46%.
The numbers simply do not reflect the rhetoric.
And what of those supposed conclusions – about the mean-spirited nature of the process and about victims left to twist in the wind, without legal or judicial protection?
Let’s be perfectly clear. There is no epidemic of vicious victim “whacking” at the hands of unscrupulous defence lawyers.
Defence counsel, bound by Law Society rules, are specifically required not to “needlessly abuse, hector or harass” witnesses. Similarly, judges are extraordinarily diligent in protecting the dignity and rights of all who come before them, complainants and witnesses alike.
Moreover, ask any defence lawyer who has ever defended a sexual assault charge and you will hear one universal truth. Harassing or abusive questioning is not only prohibited, but it is notoriously unproductive. There is no surer way to alienate a judge or jury than to appear to badger a vulnerable complainant.
In addition, sexual assault complainants are the beneficiaries of legal protections afforded to no other class of criminal law participants.
First, defence counsel are prohibited from introducing evidence of a complainant’s prior sexual history without first satisfying the trial judge that the evidence is not being introduced to bolster one of the “twin myths” of sexual assault – that earlier sexual activity means that a complainant is either more likely to have consented now or is generally less worthy of belief.
Those myths are outdated, discredited and discriminatory. And they have no place in our modern criminal justice system.
Defence counsel must also satisfy the court that the relevance of this evidence is not substantially outweighed by the negative effects of introducing it on the administration of justice.
These applications present a significant obstacle to accused persons and are routinely denied.
In deciding whether to allow these issues to be raised, the trial judge must consider not only the rights of the accused, but also the privacy interests of the complainant and society’s interest in encouraging the reporting of sexual offences.
Another area where sexual assault complainants are afforded enhanced protection relates to the production of private records. Where defence counsel in a sexual assault trial seeks to compel the production of these documents, such as medical, psychiatric or counselling records, they face an uphill battle.
Aside from establishing the relevance of the material, the defence must demonstrate that their production is “necessary for the interests of justice”. Once again the trial judge must weigh the rights of the accused against the complainant’s individual interests and general societal concerns.
We live in a country committed to liberty and the rule of law. The price we pay for that love of freedom is that we require the state to satisfy the highest burden known to law – proof beyond a reasonable doubt – before denying any person his or her liberty.
That high standard requires that accusations – including allegations of sexual assault – be tested and challenged vigorously and fearlessly. Notwithstanding that, Parliament has recognized the particular vulnerability of sexual assault complainants and our law protects them accordingly.
And what do the numbers say? Almost half of all sexual assault charges result in convictions. Only 9% of all accused persons who are charged with sex assault are ultimately acquitted.
Our criminal justice system can always benefit from reform and reconsideration. But critical commentary must be informed by an honest assessment of the evidence – both the statistical realities and the legal landscape.
This article was originally published at ottawasun.com