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Evidence in Rape, Sexual Assault and Child Sex Abuse Cases

Evidence used in Canadian sexual assault cases.

In Canada, evidence in sexual assault cases can include witness testimony, witness statements, forensic evidence, photographic evidence, and statements and/or admissions against interest. Testimony from the victim is usually the most important, and sometimes only, piece of evidence in sexual assault trials.

Evidence can differ depending on whether the matter is a civil or criminal case. In criminal proceedings, Canada's "rape shield" law blocks some evidence of the victim's prior sexual history. Such evidence is not necessarily excluded in civil matters. In both criminal and civil sexual assault cases, the judge has significant discretion to allow and disallow evidence.

Victim's Testimony

Testimony of the alleged victim in a sexual assault matter is by far the most important element of conviction (or winning in civil matters). In fact, many cases rely solely the accuser getting on the stand and identifying the accused as having sexually assaulted them. This is particularly true in cases where the main issue before the court is consent.

The victim's credibility, or the question of whether the victim is telling the truth, is decided by the judge and/or jury. A victim's "performance" on the stand is thus critically important and many times the determining factor for the judge and/or jury in deciding a verdict.

In order to attack the credibility of the victim, defence lawyers will look to previous statements to compare with their testimony. If the victim told the police a different story than they are telling on the stand, defence council will argue the victim has very little credibility and should not be believed.

For this reason, many prosecutors will provide the victim with a transcript of their original statement to review before testifying. The goal is to refresh the victim's memory and avoid many inconsistent statements on the stand.

Apart from statements made the police, defence lawyers will also sometimes request a preliminary inquiry in sex assault cases to obtain more statements from victims.

Preliminary Inquiry Evidence in Sexual Assault cases

In criminal matters proceeding by way of indictment, sexual assault defence lawyers will sometimes request a preliminary inquiry. The technical reason for a preliminary inquiry is to ensure there is enough evidence to go to trial. In reality, most defence lawyers request preliminary inquiries to:

1) get the victim's testimony under oath on record prior to trial, and
2) force the victim's testimony as a matter of strategy.

Testimony under oath

The main reason defence lawyers want a sexual assault victim to testify at a preliminary inquiry is so they have their statements under oath for cross examination at trial. If the victim's story or description of the events differs at the trial, their credibility will be in doubt. Statements under oath carry a great degree of weight, however any statement against interest could be used for cross examination.

Strategy of preliminary testimony

Defence lawyers will also use the preliminary inquiry as matter of strategy primarily to:

1) test out the accuser's ability to testify prior to trial, and
2) hope that the victim will become reluctant to further cooperate with the sexual assault charges.

Testifying is a traumatic experience for sex assault victims as for many it brings back the pain of the experience itself. As such, some victims will "give up" or become uncooperative with the Crown Attorney after testifying at the preliminary inquiry. Many times the victim will no longer want to pursue the charges. While the Crown can proceed even if hte victim changes her mind and asks for the charges to be dropped, having an uncooperative witness can still damage the prosecution. This being said, the victim can be forced to testify via subpoena even if they don't want to.

Disadvantages of Preliminary Inquiry for the Defense

Getting the victim's testimony under oath is not necessary a good thing. Preliminary Inquire testimony could be used at trial to support a sex assault conviction in cases where the victim becomes unavailable for trial. An example of this would be if the victim were to die prior to the trial date. With prelim evidence on the record, the trial could proceed despite the death of the victim. 

Physical Evidence in Sexual Assault cases

Physical Evidence of biological material can be extremely important in some sexual assault cases while relatively unimportant in others. In cases where the identity of the assailant, the issue of what sex acts took places, or the timing of sex acts is in question, biological material recovered from the victim and crime scene can be extremely important.

Depending on the accusations and time between the offense and collection of evidence, sometimes medical staff will extract evidence of clothing fibers, hairs, saliva, semen or body fluid through a process commonly referred to as a rape kit. This can take several hours to complete.

In many sexual assault cases physical evidence is less important or relevant. In fact, in many sexual assault cases there is no physical evidence at all. Physical evidence is much less important in cases where the issue is consent. There may be no physical evidence at all in cases that go unreported for a long time, which is common for sexual assaults.

The bottom line: Just because there is no physical evidence doesn't necessarily mean there won't be a trial and conviction.

Testimony of the Accused in Sexual Assault Trials

In a typical "he said, she said" sexual assault trial where the issue is whether or not there was consent, the testimony of the accused many times is the only evidence of the defence. The accused must convince the judge or jury that he had reason to believe the sexual acts were consented to. In matters where consent is the issue (the accused admits to the sexual acts), there are two main elements the accused must convince the trier of fact:

1) that there was consent;
2) that while there may not have been consent, the accused has a reasonable belief that there was.

Consent was given
The accused may testify that the victim actually consented to the activity and subsequently is fabricating the story of a sexual assault. In such cases, a motive for lying is typically introduced. The accused may claim the victim falsified the story of sexual assault or rape because of a relationship problem or for retribution for another act (such as the accused cheating on her).

Mistaken belief in consent

The accused may not challenge whether the sex was consented to, but instead testify to a mistaken belief in consent. This means an accused could be acquitted of sexual assault despite a lack of consent and admitting to the sexual act if he held a reasonable and honest belief that consent was communicated through the actions or words of the victim.

In Canada, a mistaken belief in consent is not a defence in the following scenarios:

(i) self-induced intoxication;

(ii) recklessness or wilful blindness; or

(iii) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting.

Recklessness refers to a scenario whether the accused was aware of a risk of a lack of consent yet proceeds anyway. While they do not know for sure that the victim is not consenting to the sexual activity, they continue to proceed.

Willful blindness refers to when the accused intentionally obstructs their ability to know whether to victim is consenting or not. 

Implied consent if the victim doesn't say "no" to sex.

Just because the victim doesn't specifically say "no" to sex or sexual contact doesn't mean they are consenting. The fact that a person doesn't say "no" to sexual activity is not determinative of consent. People can still be charged with sex assault in Canada even if the victim doesn't say no.

The legal test is that a person must take "reasonable steps" to ensure the sexual activity is being consented to, else they risk being prosecuted and convicted of sexual assault in Canada. While it is unclear what exactly counts as taking "reasonable steps", simply the fact that the victim does not say "no" is generally not enough.

This is why testimony is so critical. Whether or not consent was given is a question of fact and law to be determined by the judge and/or jury. In making their decision, they will rely largely on the testimony to determine whether they believe reasonable steps are taken. Since there is no specific, objective test for what meets the criteria of taking reasonable steps to ensure consent to sexual activity in Canada, this remains a subjective question for the trier of fact to decide.

Hearsay, Statements Against Interest, Inconsistent Statements

Hearsay refers to our of court statements that are being admitted for the truth of their contents. While most hearsay is not admissible into evidence in Canadian law, there are exceptions that are highly relevant to sexual assault cases.

Prior inconsistent statements, admissions, and statements against interest are generally exempt from the hearsay rules and thus can be allowed into evidence by Canadian courts if the judge permits. In sexual assault cases, statements made by the victim or the accused to each other or to third parties can thus potentially be used in court to support and acquittal or conviction.

Correspondence including email, msn messenger chat logs, facebook and other social media messages, are being used more often in sexual assault cases in Canada today. Many times, the accused may apologise for his actions, threaten the victim, or otherwise admit to elements of the crime and evidence of his statements are presented at trial. Such statements are prone to occur online where the victim or third party can create a record of the statement to provide to police. As a result, MSN chat logs, Facebook, and other social media may provide valuable evidence in sexual assault cases in Canada.

Furthermore, the alleged victim may also make statements that support an acquittal. This could include statements that are inconsistent with her statement to the police, her testimony at the preliminary inquiry, or her testimony at trial.

Once charges are laid, contact between the accused and the victim is usually forbidden via a criminal undertaking, however this does not necessarily prevent the parties from breaching this undertaking.

Disclaimer: All information on this page is of a general nature and may not apply to any specific circumstance. It is not to be construed as legal advice or presumed to be completely accurate, or infinitely up to date. If you have questions regarding your case, please contact a local lawyer immediately because there are time limitations on civil claims. Failure to contact a local lawyer immediately could prevent you from making a claim.

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