Charged with a sexual assault or sex offence? Here are some essential things you need to know.
If you are charged with a sexual assault, you are presumed innocent in law. You have rights as an accused person. You are entitled to be heard and to defend yourself against accusations made against you. But, as you likely already know, society is quick to pass judgment on those charged with sexual assault without any regard to due process and the essential role of courts in determining whether someone is guilty “beyond a reasonable doubt”.
Every day in social and mainstream media, we are inundated with the hashtags of #MeToo, #BelieveSurvivors, #BelieveHer, and many more. The mere suggestion that a complainant may be lying or an accused might be innocent is met with disgust and derision.
The truth is that some complainants do lie. Some people are innocent. Not everyone accused of a criminal offence is guilty of it. We must not presume anything based on allegations.
Some basic information you need to know about being charged with sexual assault and sexual offences.
The law in Canada requires that we do not simply #Believe anyone before rigorous and comprehensive scrutiny of the evidence is complete. It is for the prosecutor to prove, beyond any reasonable doubt, whether a criminal offence took place. Sexual crimes are no different.
Despite this, individuals charged with a sexual assault are rarely referred to as an “alleged” offender, or “accused” of a crime. Almost immediately, people who are completely unfamiliar with the facts amplify conclusions of guilt. Those charged are labeled as “predators”, “sex offenders”, or “rapists”. In a modernized pillory, the crowd tweets and posts with impunity as those who are presumed innocent in law have their reputations destroyed.
Things are not lost, but they are going to get incomprehensibly difficult in the coming months (and perhaps years) ahead. This article is meant as a starting point on this journey.
Step 1: Hire a lawyer. There is no other reasonable way to approach this.
I understand the cynicism, challenges, and frustrations of hiring a lawyer. But, whether you like it or not, this is not something you can handle on your own. What lies ahead is not about knowledge, good research, or common sense. In cases like this, even lawyers need lawyers.
Medical analogies are sometimes easier for clients to comprehend, so indulge me in trying one here. Imagine you are diagnosed with a serious medical illness. While it may be reasonable to research what this diagnosis means, survival rates, possible treatments, and alternative medicine, it would be unreasonable to self-treat such a serious illness. Of course, some might; but I would also hazard a guess that those people are also far more likely to die. Just like law, approaching these sorts of cases on your own as a self-represented litigant drastically increases your chances of conviction.
The reasonable person does not ask to “use the operating room” or to “take a quick look at the pharmacological charts…”
Just because you have a “right” to do something does not make it reasonable or effective. In no way will self-directed research or study match the abilities of trained professionals. Even if you were to achieve the impossible task of learning as much as a lawyer who routinely defends sexual assault allegations, it is still wildly irresponsible to then defend yourself. Lawyers hire lawyers; judges hire lawyers; police officers hire lawyers. As the saying goes, a person who defends themselves (no matter who they are) has an idiot for a client.
This is a critical distinction. Operating on yourself in a courtroom will kill you. Plain and simple.
Why is it such a bad idea to represent myself?
To start, you will be treated differently than a person with a lawyer. As much as courts may try to ensure an unrepresented person gets a fair trial, the procedural complexities associated with sexual assault cases makes this exceptionally challenging. More importantly, those who represent themselves often have a gross misunderstanding of how the trial and negotiations will play out due to the element of self-representation.
To name only a few:
- A self-represented litigant in sexual assault cases will not be permitted to cross-examine the complainant. The court will appoint a lawyer under s.486.3 of the Criminal Code to ask questions. This lawyer is not your lawyer. Their duty is to the court, not you, to ensure that proper questions are asked within the perimeters of the law. In Ontario, this appointment is funded through Legal Aid Ontario but the allotted hours are rarely enough to cover adequate cross-examination.
- There are complicated and strict rules of what sort of evidence is allowed, or “admissible”, at trial. Most evidence that people think is important, such as the sexual history between the accused and the complainant, text messages between them, and how the circumstances of the complaint happened, is often inadmissible. The law on what is and is not admissible changes frequently. Even for experienced sexual assault lawyers, it is challenging to keep up with developments in the law. Not knowing the rules makes it impossible to strategize questioning or argument. Invariably, it devolves into the court interrupting over and over with “you can’t ask that” or “you can’t say that”, eventually leading to an unrepresented accused sitting down in frustration and feeling unable to raise the defence they planned. Think of it this way: imagine trying to defeat an opponent in a sport or activity and not knowing the rules. Just like in chess, the rules are the game in a courtroom. Worse still, there is no rematch. There is no do-over. An appeal will never be granted simply because a person made the poor choice of representing themselves and making immense mistakes with demonstrated ignorance along the way.
- The negotiations to withdraw or resolve cases are stifled when a third party (i.e., a lawyer) is removed from the process. An unrepresented accused cannot speak as candidly as a lawyer can about the merits or challenges in a case. It is also inevitable that a person who represents themselves will have their opinion on matters or proposed offers of resolution looked down upon as uninformed even if their suggestions are reasonable. As mentioned above, even lawyers, judges, and police officers hire lawyers. The reason for this is the accused cannot negotiate effectively on their own behalf.
There are many other reasons but suffice to say that just like in the hospital setting, treating yourself is a terrible idea. I appreciate that sometimes the issue relates to access to funds to hire a lawyer or eligibility for legal aid (access to justice). If so, those issues are often resolved by first speaking to a lawyer in an initial consultation and trying to find out options that might exist. Access to justice is a difficult problem and is not the subject of this article. Instead, this article is meant to address those who might think “because it is a simple case” or “there is no evidence” or “I am innocent”, they should represent themselves. Don’t.
Retain a lawyer as soon as possible or speak to lawyers to try and find out how you might be able to.
If you don’t want to take that critical advice, then the rest of this article is useless to you and you can stop reading now. Lawyers can’t help people who already know more than them.
What people think is “relevant” in defending sexual assault allegations is often inadmissible in law.
In almost any other criminal proceeding, the testimony of witnesses is generally restricted only to whether it is “material” and “relevant” to the proceedings. A long-standing and proven definition of evidence is as follows:
For one fact to be relevant to another, there must be a connection or nexus between the two which makes it possible to infer the existence of one from the existence of the other. One fact is not relevant to another if it does not have real probative value with respect to the latter (Cross, On Evidence, 4th ed., at p. 16).
Here’s the key: what the general public or a person charged with a crime considers “relevant” is not the same as what a court finds “legally relevant”. While it may seem the same, it is often fundamentally at odds. “Legal relevance” is determined by a combination of statutory law, such as the Criminal Code of Canada, and the “common law” based upon previous judges’ decisions on how to interpret legal relevance.
For example, if Parliament codified a law saying “No evidence may be led that the sky was clear without clouds in any legal proceeding trying to determine the weather,” that would be the law. Put another way, “legal relevance” does not need to have any relation to “common sense” or “relevance” in the everyday sense.
Here are just a few examples of what is presumptively not relevant at a sexual trial:
- A complainant’s delay in reporting the allegation to police;
- The flirtatious behaviour of a person leading up to the sexual acts;
- The sexual history of the complainant and the accused (even if in a relationship, such as “friends with benefits”);
- The general sexual history or preferences of the complainant (for example, if they were into BDSM);
- Text messaging before or after the sexual act describing an intent to have sexual intercourse,
- Text messaging after the sexual act expressing satisfaction or pleasure with the sexual act alleged;
- The complainant’s mental health or mental capacity;
- Accusations, or even proof, that the complainant has lied about a sexual assault in the past;
- Expressions of innocence the accused stated to others;
- Witnesses to testify about the bad character of the complainant;
- The complainant’s proclivity to lie;
- A “pass” for an accused who took a lie detector test explaining their innocence;
- What the complainant may have told counsellors or therapists;
- DNA or bodily fluid samples of other people that may have been obtained through a sexual assault kid;
Here are some things that are presumptively (or at least, “likely”) relevant at trial to the detriment of the accused:
- The past sexual behaviour or tendencies for violence between the accused and complainant (and perhaps other individuals);
- The text messages (often seized by police upon arrest) of the accused that relate to the issues at trial or credibility in general;
- Any criminal record or previous police occurrences of the accused;
- DNA or other bodily samples of the accused obtained at the scene or through sexual assault kits;
- Any statements the accused made to the police, witnesses, or other persons;
- After the fact conduct that might support a “guilty mind” (e.g., leaving the party quickly, texting or not texting them afterwards, etc.);
- The reaction of the accused when confronted with the allegations;
What people think is “consensual” in law is often very different than what people understand it to be.
A lot of people think that their case is a “simple he-said, she-said” case and therefore easy to defend. In law, there is no such thing. No case is “simple” and no case is simply about what one person “says”. How a court determines culpability for a sexual assault, particularly on areas surrounding consent, depends a lot on how the complainant communicated consent, if at all.
Here are some things, that in and of themselves, would not reach the standard of “communicated consent” or “consent ” in law:
- The complainant didn’t say “no”;
- They passively acquiesced to what was happening;
- They consented to acts that resulted in bodily harm;
- An articulation of consent related to one discrete element of sexual activity but was not articulated for another (kissing but not petting);
- A person had communicated consent that was not contemporaneous with the act itself (for example, “I want to have sex with you tonight”)
- The person was not capable of consent (on drugs, sleeping, lacked mental capacity);
- The consent was obtained through coercion or exploitation of a position of authority or trust;
- The communicated aspect of consent was not clear and unequivocal;
Sometimes, an accused may reasonably but mistakenly believe there was consent. In assessing whether a person made such a reasonable mistake, the court may look at factors that include, but are not limited to:
- The nature of the relationship between the parties (was there a position of trust/authority/etc.)
- Whether the person was sober and of a clear operating mind;
- Did they have the intellect to make informed decisions?
- Was the communication about consent related to the discrete sexual act in question?
- Was the communicated consent verbal or non-verbal?
- If the communicated aspects of consent, did the accused take reasonable steps to ensure consent was obtained?
- Was physical violence involved? Injuries?
These are just some of the many things the law looks at when assessing whether a) the person consented in fact, or b) whether the accused reasonably but mistakenly believed they consented. As you can see, this is complicated, fact-dependent, and to many people, highly-counter-intuitive. Trying to navigate whether defences are even applicable or have an “air of reality” to them without highly specialized training is reckless. Even among highly trained lawyers, there is significant disagreement on how the law applies and whether defences are available. It emphasizes how important it is to obtain proper legal counsel to advise you on what, if any, defences may be available if you are facing sexual allegations.
IMPORTANT | DISCLAIMER
*** The information here is not intended as legal advice. As this article will make clear, you should immediately seek and retain professional legal counsel by a lawyer licensed to practice in this area of law in your jurisdiction. All references here relate to the law of Canada at the time of writing (November 2020) and should not be relied on in any manner in mounting a defence. The purpose of this article is to offer some helpful information on why legal counsel is essential to ensure procedural requirements are met and that relevant evidence is not rejected at trial for failure to follow such procedures.