By: Jennifer Koshan
PDF Version: Reflections on Week One of the Ghomeshi Trial
I posted on ABlawg last Monday on the legal consequences of choking in the sexual assault context, which I suggested would be a likely issue in the Jian Ghomeshi trial. The testimony at the first week of the trial indicates that the question of whether one can legally consent to sexual activity involving choking is less likely to be the focus than whether the sexual assaults actually occurred and / or whether there was consent to the sexual activity in fact. Much ink has been spilled on the scope of the cross-examinations of the two complainants (so far) by defence counsel Marie Henein and the consequences of her tactics for the rights of sexual assault victims and their willingness to come forward. I want to add my two cents worth by focusing on the scope of the rape shield provisions, the relevance of the relationship between the complainants and the accused, and the possibility of expert evidence in this trial.
Section 276 of the Criminal Code, RSC 1985, c C-46,is commonly known as the rape shield provision (along with section 277, which restricts evidence of sexual reputation), and provides as follows:
276. (1) In proceedings in respect of [a sexual offence] … evidence that the complainant has engaged in sexual activity, whether with the accused or with any other person, is not admissible to support an inference that, by reason of the sexual nature of that activity, the complainant
(a) is more likely to have consented to the sexual activity that forms the subject-matter of the charge; or
(b) is less worthy of belief.
One important point to note is that although this section is often described as restricting “sexual history” evidence, it includes evidence of sexual activity that occurred either before or after the sexual activity that is the subject matter of the offence. If the defence intends to lead sexual history evidence, for example in cross-examining the complainant, they must apply to the court for permission to do so. The court may only admit such evidence where it relates to:
(a) … specific instances of sexual activity;
(b) is relevant to an issue at trial; and
(c) has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice (s 276(2)).
The judge hearing the application must also have regard to several factors in deciding whether the sexual history evidence is admissible, including the right of the accused to make full answer and defence, society’s interest in encouraging the reporting of sexual assault offences, the need to reject discriminatory beliefs or biases, and the rights of the complainant to personal dignity, privacy, security of the person, and to the full protection and benefit of the law (s 276(3)).
Section 276 explicitly applies to “specific instances of sexual activity.” Whether the complainant has engaged in sexual activity before or after the alleged offence with the accused (or others) must not, “by reason of the sexual nature of that activity”, be considered relevant to whether she consented to the sexual activity in question or to whether she should be believed as a witness.
I would argue that the same rationale underlying this section should apply to communications and other conduct of a sexual nature in which the complainant engages, either before or after the alleged incident. For example, we should not consider her more likely to have consented on the occasion in question, or to be less credible, simply because she has engaged in sexualized communications with the accused after the fact. Our focus must still be on whether there was consent at the time of the alleged incident.
To hold otherwise would suggest that sexual assault is not possible in the context of an ongoing relationship – or at least that we should have heightened concerns about credibility and consent in that context. Take for example marriage, an example that one of the complainants, Lucy DeCoutere, raised in her testimony. In a spousal relationship, the parties may engage in consensual sexual activity or sexualized communications after an alleged incident of sexual assault, but this does not mean that a sexual assault did not occur. A complainant in this context may have all sorts of reasons for staying with her partner regardless of the assault, including dependency, fear, or even love. Nevertheless, we must still assess an alleged sexual assault by focusing on whether consent existed at the time of the incident, and to what specific sexual activity that consent existed, rather than drawing inferences of consent or lack of credibility based on the fact that the parties remain together and have sex or talk about sex. These are the requirements of section 276 of the Criminal Code, as well as consent provision in section 273.1 as interpreted in cases such as R v Ewanchuk, [1999] 1 SCR 330, 1999 CanLII 711 and R v JA, [2011] 2 SCR 440, 2011 SCC 28.
Unfortunately, courts in spousal sexual assault cases often allow sexual history evidence (including post-offence conduct) to “creep in” without application of section 276 of the Criminal Code (see Melanie Randall, Sexual Assault in Spousal Relationships, ‘Continuous Consent’, and the Law: Honest But Mistaken Judicial Beliefs (2008) 32 Manitoba Law Journal 144 at 158; Jennifer Koshan, The Legal Treatment Of Marital Rape And Women’s Equality: An Analysis Of The Canadian Experience at 44-45). But these instances are contrary to the requirements of the Criminal Code and should be resisted or appealed where they occur. The relationship between the parties – whether it is dependent, romantic or professional – should not attenuate the application of the rape shield provisions, and should not influence inferences about consent and credibility even where there is post-offence contact or communication of a sexual nature. Any other interpretation risks undermining the interests that courts must consider in sexual history applications, including society’s interest in the reporting of sexual assault offences, the need to remove discriminatory beliefs and biases from the fact-finding process, potential prejudice to the complainant’s personal dignity and privacy rights, and the right of the complainant to personal security and to the full protection and benefit of the law.
Another useful way to think about the problems with relying on post-offence conduct is to ask how we would treat this kind of evidence in a case involving a different offence – for example, assault rather than sexual assault, which also includes the element of lack of consent. As argued by UBC law prof Isabel Grant in an interview with the National Post, “We wouldn’t start questioning the victim about whether or not he likes being punched in the face. Was he dressed in a way that would invite punching in the face? Did he talk to the person after he was punched in the face? If you think about these arguments in other crimes, you start to see how absurd it is.”
And further to my point about the many reasons why complainants may stay with their partners, or maintain contact with professional colleagues following a sexual assault (even intimate contact), we must recognize that victims of sexual assault have a diverse range of responses to being violated. Lori Haskell gave an excellent interview on CBC’s The Current last week discussing the psychology behind reactions to sexual victimization. The Ghomeshi case may be an appropriate one for the Crown to call expert evidence to provide context to this issue. There are several examples of spousal sexual assault cases where expert evidence has been admitted by the court as useful to its understanding of the post-offence actions of the complainant (see The Legal Treatment Of Marital Rape And Women’s Equality: An Analysis Of The Canadian Experience at 43). While expert evidence of this kind may be thought more appropriate in a jury trial, we should recall that judges sitting alone may be influenced by myths and stereotypes about how sexual assault complainants should act before and after the alleged offence (see e.g. my post on R v Wagar, 2015 ABCA 327). This is not to say that expert evidence should be required; the word of the complainant should be enough. But we are not (yet) living in a world where we can be confident of that.
All of the attention on the fact that the first two complainants in the Ghomeshi trial had contact and communications with him after the alleged incidents is therefore misplaced, should not be seen as relevant to whether they are believable or whether they consented to the alleged sexual assault, and might usefully be contextualized by expert evidence so that rationales contrary to the rape shield provisions are not imputed to their behaviour.
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Geoff C
Well written and thought out, as always Prof. Koshan.
However, I disagree with Prof. Grant’s comparison. Common assault differs from sexual assault in that it (generally) does not take place within a spectrum of consensual actions. It is uncommon for an individual to consent to say, 3 punches to the gut but that consent does not extend to the face.
To further examine this comparison, perhaps injuries arising from contact sports could provide a useful tool. Here, individuals are consenting to being ‘assaulted’ throughout the game play but do not consent to certain types of assault that rise above the regular context of the sport (Colby v. Schmidt, 1986 CanLII 1228). It is impossible to determine what constitutes a non-consensual action in such circumstances unless those actions that were consented to are clear. I don’t know how this can be done looking only at the alleged crime; the context plays a role as well.
To me, the Ghomeshi trial is demonstrating that the standard approach to prosecuting such sensitive cases is not effective and safe for either party. Despite this being a she-said he-said case, we are unlikely to hear Mr. Ghomeshi’s side of the story because of the risks of testifying. Perhaps the Legislature needs to examine establishing an alternative process that is more private and has varying procedural and evidentiary rules that could better facilitate justice for both parties.
D. Ottawa
“[T]he fact that the first two complainants in the Ghomeshi trial had contact and communications with him after the alleged incidents (…) should not be seen as relevant to whether they are believable or whether they consented to the alleged sexual assault”.
The hubbub is not (or at least, should not be) because the complainants had communication and/or contact after the fact.
The complainants lose credibility as witnesses because they intentionally lied to the police and Crown regarding their own conduct in the days (and months and years) following the alleged assaults. Lying to the police and the Crown should absolutely be seen as relevant to whether they are believable in their accounts.
Susan Wright
Excellent post Jennifer. It’s surprising that after all these years victims of sexual assault remain fair game. The media in the Ghomeshi case sought access to a photo of the victim on a beach wearing a red bikini. The media argued the photo should be released because there’s a strong presumption that the public should see what the judge sees and the photo would help the public assess the complainant’s credibility. Given that the victim’s face was going to be blurred, one wonders just how the public was going to make this assessment…would it be based on the skimpiness of the bikini? The judge wisely denied the media’s request, noting that it would have a “chilling effect” on sexual assault victims. No kidding!
Jennifer Koshan
Thanks for your comments Geoff, Susan and D. Ottawa.
Geoff, I think your sports example actually confirms the analogy. Hockey players may consent to being body checked but not cross checked – so there can be both consensual and non-consensual activities within a given encounter, and we don’t need to look at the player’s post-game conduct to accept that. Nevertheless, your point about the need for an alternate process certainly resonates with those calling for a sexual assault court similar to domestic violence courts.
D. Ottawa, I question whether the complainants deliberately lied to the police; it is also possible that they were not adequately questioned at that time or prepared as witnesses for trial. For example, Lucy DeCoutere testified that she thought her initial statement to police was just a starting point, and that she would be asked to expand on it later.
I also want to clarify the point I made that “the complainant’s word should be enough.” I do not mean that we should disregard the burden of proof nor the presumption of innocence in criminal matters. I believe deeply in both of those protections, and would never support a system where an accusation equals a conviction. However, I maintain that in an ideal world we would not need expert evidence to contextualize a complainant’s actions; we only need that evidence now because myths and stereotypes about women and sexual conduct abound.
anon
I wonder if the defense is setting up a ‘de mimimis’ argument.
Oversimplifying, the complainants say ‘I was choked, punched and smothered without consent.’ Clearly an assault. The defense is reframing this to create a narrative something like ‘Ghomshi put his hands on her neck, covered her mouth and pulled her hair. He stopped when her reaction wasn’t positive. No injury, No harm, No foul. That the complainant saw this, at the time, as No Big Deal is demonstrated by her subsequent actions and behavior. Years later, social views on these actions change and the complainant recontextualized the events through a combination of her fallible memory and the influence of friends interpretations.’
Based on reading the internet, the defense has not even tried to bring up consent or argue that nothing happened to the complainants. What the defense seems to be pointing out is that, after many years, they might be remembering things differently, and that their interpretation of the events and actions in the present may be coloured by recent social and personal influences.
I guess the question is, if the complainants didn’t react to Ghomeshi’s actions, did they rise to being enough for there to be an assault?
Adrian
Thank you for your clear reflections.
Despite the theatrics of Marie Henein, playing to the cheap seats, there is no reason to believe the women assaulted by Jian Ghomeshi were not assaulted by Jian Ghomeshi.
Women assaulted by Ghomeshi reveal the true nature of abuse. Henein, the defence lawyer serving Ghomeshi, is selling the myth.
“Fixing a broken system: Sexual assault and the law”: http://www.cbc.ca/radio/thesundayedition/remembering-alistair-macleod-sexual-assault-and-the-law-in-praise-of-the-theremin-ww1-what-for-and-vimyism-1.2905282/fixing-a-broken-system-sexual-assault-and-the-law-1.2905285
Canadian author Kathryn Kuitenbrouwer oberves that Henein “cross-examines the accusers in ways that seems fifty years out of date” – http://www.cbc.ca/news/canada/british-columbia/jian-ghomeshi-trial-defense-1.3436841
That seems natural considering rape and sex-related cultural myths have been effective since the days of Henein’s mentor Eddie Greenspan when they well-served Nova Scotia’s Gerald Regan, in a cultural context the Jian Ghomeshi of an earlier generation: http://stephenkimber.com/books/not-guilty/gerald-regan-case-update
TruthSeeker
That is where the problems arise..”innocent until proven guilty” “quilty beyond reasonable doubt” “consentual sex or non consentual sex”
How can one determine the above, if one does not take into account the relations
between accuser and victim before and after a sexual assault?
How can it be proven that it was not “consentual” when the witness may have avtually set up the accused?
So many factors play into quilt or innocence and yes, focus must be on the alleged offense, but, history of interaction can help determine if any motive behind an
allegation.
DC Toronto
An interesting analysis, however I would dispute your conclusion that the focus is misplaced.
There was no evidence presented in court other than witness testimony. There were no physical injuries and there was no lasting psychological trauma other than that which was testified to in court and in the media. There was (per the women) no ongoing relationship with the accused. If you are not a member of the “I believe the women” brigade, then you would be hard pressed to not have some doubt about the validity of 14 year old claims.
The ghomeshi case is the perfect example of a time when context is most needed and subsequent actions are most definitely relevant. It is relevant to determine the extent of the injuries to the accusers as well as to verify the narrative that they volunteered to the world through media interviews. As the accused has no publication ban on his identity, they need an opportunity to examine the witnesses to ensure they are not harmed by the seeking of justice.