‘Twin myths’ still a debate in sex assault trials

Should jury hear about previous sexual activity?

In the beginning at least, the 28-year-old complainant told Toronto police she wanted to hear what the man had to say, wanted to understand what had happened.

She had had by her own count about 10 drinks, done four or five lines of cocaine, and voluntarily taken GHB, a party drug she knew as a date rape drug.

Though she was a witness honest to a fault, understandably her memory was incomplete, and what there was of it was suspect, even to her.

She wasn’t sure, she told police, if the sexual encounter was a dream or if it actually happened.

In the final analysis, during the man’s brief trial, the woman heard the accused man speak all of two words — “not guilty,” this when he was arraigned.

As for him, though the case attracted little publicity and though he was acquitted only last week, he lost his career. The wealth management world is sufficiently small that word of the charge against him got around.

“Everyone in the case is a loser,” says Chris Murphy, lawyer for the 44-year-old man. “From my perspective, this case is emblematic of the inability of the justice system to take (such) cases on properly.”

Much better, Murphy says, if there could have been a form of restorative justice offered the woman, a formalized way, with whomever she wanted there, to sit down with the defendant and talk things out.

He believes “the state of sexual assault prosecutions is at a crossroads,” especially in cases such as this one, where the parties know one another.

Murphy also believes prosecutors should have exercised their discretion to drop the case at an early stage, knowing there was no reasonable prospect of conviction — and yet he recognizes that in the #MeToo era, making that call is “extremely difficult … as long as the complainant says it happened, you (theoretically) have a reasonable prospect of conviction.”

Another aspect of his case is that the jurors didn’t hear something arguably important — that 25 minutes after the complainant left the defendant’s apartment early on the morning of Aug. 4, 2016, within an hour of the alleged assault, she was coherent enough to make conscious decisions and that one of them was to have sex with her boyfriend.

Murphy made an application under section .276 of the Criminal Code, the socalled “twin myths” section that renders a complainant’s other sexual activity inadmissible if its purpose is either to support the banned inferences that the complainant was more likely to have consented to the sex in question or that she is less worthy of belief.

(That wasn’t his intention, Murphy said. His position would have been that the sexual activity with his client never happened, and that her recollection was either a dream or hallucination caused by the GHB.)

In any case, Ontario Superior Court Judge Mario Faieta dismissed the application on Dec. 3, before the trial began.

A recent Alberta Court of Appeal decision also ruled similarly in another case rather like Murphy’s.

In this case, called R v Goldfinch, the accused man, Patrick John Goldfinch, and the complainant, respectively 49 and 52, had had a previous relationship, and actually lived together for seven or eight months.

Then she ended the relationship, but the two continued to see one another, meeting occasionally “just for sex.”

The night of the alleged assault, May 28, 2014, she came over to his place, had a drink, exchanged a kiss.

But, she said, she told him they’d not be having sex that night; he got angry and dragged her into the bedroom, hit her in the face, and had sexual intercourse with her while she repeatedly told him to stop.

He said the encounter was like the others they had — they had sex, fell asleep, but this time he was awakened by the complainant who told him she’d hit her head while she was asleep.

Defence counsel had brought an application under .276, arguing that it was necessary to discuss their “friends-with-benefits” relationship “so the jury was not under the false impression the two did not know one another, or that if they knew each other, they had a platonic relationship.”

That trial judge allowed it, and during the trial, gave the jurors several instructions on how they could use the information, and as important, how they couldn’t.

The jury voted to acquit and the Crown appealed. The appeal court ordered a new trial, saying the trial judge shouldn’t have allowed the jurors to hear about the sexual nature of the previous relationship. However, one judge, the now-retired Justice Ronald Berger, wrote a lengthy dissent, in which, quoting from the trial judge herself, he wrote, “Couples that break up may or may not remain friendly and their friendship may or may not involve sexual relations. Canadian juries recognize that relationships can take many forms.”

As Chris Murphy says, you have to wonder “if it’s in the interests of justice where you’re hearing about one (sexual) encounter in a complete vacuum … I’m not sure keeping information like that from a jury is in the end good for the complainant, or the accused.”