Myth, Inference and Evidence in Sexual Assault Trials.

Author:Dufraimont, Lisa


  1. Relevance in Sexual Assault

    1. The Relevance Requirement Generally

    2. Relevance and Consent

    3. Context and Circumstances

  2. Myths and Stereotypes About Sexual Assault

    1. Some Recognized Myths

    2. Two Key Examples

      (i) Complainant's Sexual History

      (ii) Delayed Disclosure

    3. A Balancing Approach to Eliminating Myths

  3. Complainant's Subsequent Relationship with the Accused



    Some of the most difficult problems in the law on sexual assault are evidentiary. (1) In deciding disputed factual issues in sexual assault cases, challenging questions persist about what types of evidence are relevant and what inferences can be drawn from that evidence. For example, what, if anything, can be made of evidence that the complainant communicated to the accused an intention to engage in sex with the accused hours before the alleged sexual assault? (2) What, if anything, can be made of evidence that the complainant continued to have an affectionate or sexual relationship with the accused after the alleged sexual assault? (3) These questions turn on our understanding of relevance. They are also complicated by the fact that, as L'Heureux-Dube J recognized almost three decades ago, sexual assault is an area where common sense judgments about relevance are frequently infused with stereotypes and myths. (4)

    Canadian law is properly committed to eliminating myths and stereotypes from the adjudication of sexual assault cases. Rape shield provisions prohibit use of evidence of other sexual activity of the complainant to raise the discriminatory inferences that the complainant is less credible or more likely to consent by virtue of her sexual experience. (5) Other stereotypical inferences have been prohibited in the case law, such as the inferences that a woman who dresses in a provocative manner invites sexual assault, (6) and that a lack of resistance amounts to consent. (7) The law's aspiration to eliminate these discriminatory forms of reasoning remains, of course, imperfectly realized. Scholars have documented the persistence of myths and stereotypes about sexual assault, demonstrating that lawyers and judges continue to rely on them with troubling regularity. (8) Undoubtedly, more work must be done to remove the influence of stereotypical reasoning in sexual assault cases.

    At the same time, the category of myths and stereotypes is controversial. Some warn that excessive expansion of this category could threaten the fair trial rights of the accused by unjustifiably limiting the inferences that may be drawn from relevant evidence. (9) Professor Don Stuart put it this way: "[N]ot all assertions of myths and stereotypes are beyond critical scrutiny and fair trial considerations.... When a judge asserts that something is a myth or false stereotype, the factual inquiry into relevance is pre-empted and turned into an indisputable question of law." (10) On this view, care must be taken to ensure that efforts to eliminate myths and stereotypes do not result in the inappropriate rejection of relevant evidence.

    This paper takes seriously both the need to remove myths and stereotypes from the adjudication of sexual assault cases and the importance of ensuring that the defence can rely on relevant evidence for legitimate purposes. I will argue that the law requires judges to take a broad view of relevance. In general, this generous approach to relevance permits consideration of the circumstances surrounding an alleged sexual assault, including the nature of the interactions between the accused and the complainant leading up to the alleged assault and in its aftermath. The accused's constitutional right to make full answer and defence demands that the defence be permitted to explore the circumstances surrounding the alleged assault without undue constraint. (11) In this context, the legal disavowal of myths and stereotypes about sexual assault operates to prohibit use of evidence for particular purposes. Clarity is required in specifying these prohibited lines of reasoning. This analytical clarity is the key to distinguishing myths and stereotypes from legitimate inferences.

    The analysis will unfold in three parts. First, the concept of relevance will be discussed, along with the forms of evidence that can be relevant in adjudicating sexual assault cases. This discussion will show that relevance and admissibility of evidence are context-dependent and that relevance is not a demanding threshold. Second, the analysis will turn to myths and stereotypes about sexual assault. Some of these rejected myths will be identified, and the law's approach to removing them from the courtroom will be discussed, with special attention to the legal response to evidence of the complainant's sexual history and delayed disclosure of sexual assault. The third part of the analysis will focus on evidence about the complainant's relationship with the perpetrator subsequent to the alleged assault, which is one area where Canadian courts are currently grappling with how to distinguish legitimate inferences from prohibited myths. Ultimately, I will argue, the challenge is to ensure that judges and juries avoid prohibited lines of reasoning while retaining broad access to information about the circumstances and the ability to draw reasonable, context-specific inferences.

  4. Relevance in Sexual Assault

    This part reviews the law on relevance both in general and in the context of sexual assault cases specifically. Particular attention will be given to evidence relevant to consent, which is a central and frequently contested issue in sexual assault cases.

    1. The Relevance Requirement Generally

      The most fundamental rule of evidence in the common law system is that only relevant evidence is admissible, and all relevant evidence is admissible absent a clear reason to exclude it. (12) Evidence is considered relevant when "it has any tendency to prove or disprove a fact in issue". (13) The rules of evidence prohibit certain uses of evidence and lines of reasoning, but beyond this the question whether evidence has the probative tendency required for relevance is a matter that is not decided by applying rules of law. Instead, relevance is governed by logic and human experience: "Relevance... requires a determination of whether as a matter of human experience and logic the existence of 'Fact A' makes the existence or non-existence of 'Fact B' more probable than it would be without the existence of 'Fact A'. If it does then 'Fact A' is relevant to 'Fact B'." (14) To be considered relevant, evidence does not need to be conclusive of a factual issue or even to reach some less demanding threshold of probative value. (15) Relevance is a binary question and "any" probative value will do. (16)

      An example may help to illustrate the expansiveness of this concept. Imagine a robbery case where the identity of the robber is the disputed issue, and there is evidence that the accused was in the neighbourhood an hour before the robbery. Obviously, the evidence is neither determinative of the issue of identity nor sufficient on its own to prove the issue of identity to any reasonable standard. The accused may be one of hundreds of people who were in the area. Nevertheless, the fact that the accused was in the area of the robbery near the time it occurred makes it more likely that the accused was the robber than it would be if we did not have this information about the accused's location. The evidence is therefore relevant on the issue of identity.

      Relevance is not a demanding test to meet. Moreover, where reasonable people disagree about whether evidence is relevant, the law requires that we "err on the side of inclusion". (17) The parties may disagree about whether the evidence has any logical bearing on the material issues, but where it is arguable that it does have a legitimate bearing, that evidence passes the test of relevance. Subject to the rules of evidence, ultimately it will be for the trier of fact to determine whether the evidence has any probative value in the context of the case as a whole. Chief Justice Dickson explained in R v Corbett:

      basic principles of the law of evidence embody an inclusionary policy which would permit into evidence everything logically probative of some fact in issue, subject to the recognized rules of exclusion and exceptions thereto. Thereafter the question is one of weight. The evidence may carry much weight, little weight, or no weight at all. If error is to be made it should be on the side of inclusion rather than exclusion. (18) The "inclusionary policy" of the law means that evidence should not be excluded as "irrelevant" where there is a reasonable argument that it has some probative value for a legitimate inferential purpose.

      This inclusionary inclination is particularly appropriate to relevance determinations made in the course of trials, because the probative value of any individual piece of evidence must ultimately be determined in relation to all the other evidence in the case. (19) Relevance is therefore inherently contextual, and categorical prejudgments about it are inappropriate. (20) The law's inclusive attitude toward relevance also has special salience in relation to defence evidence. The accused has a right to make full answer and defence under sections 7 and 11(d) of the Canadian Charter of Rights and Freedoms. (21) Canadian courts therefore take great care to ensure that the defence has access to relevant evidence. (22) In the words of McLachlin J (as she then was) writing for a majority in R v Seaboyer, "to deny a defendant the building blocks of his defence is often to deny him the defence itself". (23)

      Of course, relevant evidence is not necessarily admissible. Relevant evidence will be excluded if it is subject to an exclusionary rule or, generally, if the trial judge concludes that its probative value is outweighed by its prejudicial effect. (24) Prejudice is a complex concept that includes...

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