Using Sexual History to Defend Your Sexual Assault Case

by | Apr 20, 2022 | Sexual Offences

If you are accused of sexual assault in Canada, you may be allowed to tell the court about the sexual history between you and the complainant – but only in certain circumstances.

What is a rape shield law in Canada?

Often in sexual assault cases, the complainant and the accused have some sort of history. They may have been in a relationship or been ‘friends with benefits’ before the alleged assault took place. If so, the accused may want to bring this to the court’s attention.

However, there are very strict rules on this type of evidence. This is because Canada has what is commonly known as a ‘rape shield’ law, introduced in the late 20th century, which limits the ability of the defendant’s counsel to introduce the accuser’s sexual history as evidence during a rape trial

The law exists to ensure the complainant’s sexual history cannot be used to their detriment during the judicial process. This was allowed in the past, but it was deemed to be unfair as the evidence could be manipulated to suggest that the complainant was promiscuous and/or had previously consented to sex with the accused. The inference was that the complainant was an unreliable witness and was more likely to have consented to the sexual activity than not.

Twin myths legal principle

The law was therefore amended to restrict evidence on prior sexual activity.

This is called the twin myths legal principle. It is outlined in Section 267(1) of the Criminal Code, which 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 that subject-matter of the charge; or
  • (b) is less worthy of belief

In other words, the complainant’s sexual history cannot be used at trial, if its intention is to suggest that because they consented to sex in the past, then they most likely consented during the incident in question. Also, it cannot be used to suggest that because they had sex in the past, their reliability as a witness should be called into question.

 -> Find out how Canadian criminal law defines sexual assault and consent

When can sexual history be used to defend sexual assault?

So, when can a complainant’s sexual history be raised by the defence? This was tested in the case of Goldfinch.

Patrick Goldfinch and the complainant had previously been in a relationship but continued to have casual sexual relations after they broke up. The complainant was at the accused’s property one evening. She alleged that he sexually assaulted her, whereas the accused said it was consensual.

The key issue, in this case, was whether or not the sexual history between the complainant and the accused could be raised in court.

This is known as ‘admissible evidence.

The defence said it should be used, as it provided context for the alleged assault. Otherwise, the jury would be left with an incomplete picture.

The Crown prosecution objected, saying it would bias the jury. At trial, the judge allowed the defence to cross-examine the complainant about her sexual history with the accused. Defence counsel went as far as describing the evening in question as ‘routine’ or ‘typical’. Goldfinch was found not guilty.

However, the Crown appealed the decision. The Court of Appeal allowed the appeal on the basis that certain evidence was inadmissible, meaning it should not have been used. A new trial was ordered. The Supreme Court of Canada was then asked whether the evidence that the complainant and the accused were ‘friends with benefits’ should have been raised during the original trial.

The majority of the Supreme Court said the trial judge was wrong to allow the evidence, as providing context was not a sufficient reason. The ruling said the evidence served no purpose other than to “support the inference that because the complainant had consented in the past, she was more likely to have consented on the night in question.”

Exceptions to the rule

Yet there are still occasions when sexual history can be used as evidence during sexual assault cases. Exceptions are permitted for specific instances of sexual activity that are relevant to the case and will not be used to support twin myth reasoning.

The Supreme Court has not listed all the instances in which sexual history evidence might be relevant. However, the court did clarify that such evidence will be relevant if it shows that the accused held an honest but mistaken belief that the sex was consensual.

It might also be relevant where there are previous inconsistent statements about sexual activity. For example, if there is evidence of a specific pattern of consensual sexual activity between the parties, this may be admitted to support the defendant’s claim that he believed the sex was consensual.

Ultimately, each case will be assessed on its individual merits.

When deciding whether sexual history can be used to defend a sexual assault case, the court will consider factors such as:

  • The facts of the case
  • The nature of the evidence
  • How the defence intends to use the evidence and their reasoning behind it
  • Whether the evidence could cause bias

What kind of evidence is used in Canadian sexual assault cases?

Usually, the most important piece of evidence is testimony from the victim. In some cases, this is the only piece of evidence in sexual assault trials.

Other evidence in sexual offences can be forensic evidence, physical evidence, photographic evidence, and statements and/or admissions against interest.

-> How text messages and social media postings can support or harm your defence in a sexual assault case?

Get expert legal advice – How to defend a sexual assault charge

Sexual history evidence is barred unless certain conditions are met. As specialist criminal defence lawyers, we can consider the evidence available and request that sexual history evidence is allowed in your case. This could be the difference between an acquittal and a guilty verdict. Mickelson & Whysall Law Corporation lawyers know how to utilise the evidence available and promise to get the best possible outcome in your case. Contact us now for a confidential discussion or read more about sexual defence recent cases in Metro Vancouver.

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