A few weeks ago, a judgement from Alberta made the news because of some comments made by a judge in a sexual trial. In the case of R v. Wagar, Justice Camp, who later sat on the Federal Court, made remarks to the complainant asking why she “couldn’t just keep her knees closed.” There was, rightfully, a flurry of commentary and upset, along with a number of complaints made the judicial council.
Hearing comments like this makes it seem that courtrooms are a harrowing place full of antiquated ideas of women’s sexuality and consent. While I cannot discount that many complainants find the process of testifying at trial difficult, it is important to note that the Criminal Code has a number of sections that deal specifically with issues of evidence in sexual assault cases. These are designed to balance the rights of the accused with the privacy of the complainant.
First, there are limitations on the ways in which the evidence is presented and what can be admitted. For example, evidence of a complainant’s sexual activity are very limited. Section 276 of the Criminal Code states:
“…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.
In other words, the defence lawyer cannot argue that because someone had sex in the past, she likely consented this time. Or, that because she had sex in the past, she must be lying about not consenting this time. There can be specific instances where a complainant’s sexual activity can be introduced, but this happens after the defence brings an application, and it is relevant to an issue at the trial. And, if a judge decides to admit that evidence, he or she must take into consideration a number of factors, essentially to balance the accused’s right to full answer and defence with society’s interest in encouraging the reporting of sexual offences, as well as the consideration of the complainant’s dignity and privacy.
Section 277 similarly prohibits evidence of sexual reputation to challenge or support the credibility of the complainant. So, you cannot argue that because someone is known to be promiscuous that they must be lying. Or conversely, because someone is ‘chaste’ that they must be telling the trust.
Of course, in order to be effective, these provisions need to be adhered to. The issue again is not that the provisions around sexual assault are inadequate, but that they need to be applied correctly to ensure an individual’s right to a fair trial, as well as maintaining a complainant’s dignity.
(To see a thorough review of the R v. Wagar case, check out this case comment by Jennifer Koshan at the University of Calgary: http://ablawg.ca/2015/11/02/judging-sexual-assault-cases-free-of-myths-and-stereotypes/#more-6514)