Court quashes sex-as­sault con­vic­tion

Rape-shield law un­fairly ap­plied and can­not be used to pre­vent an ac­cused from mount­ing a rea­son­able de­fence

The Welland Tribune - - Canada & World - COLIN PERKEL

TORONTO — Canada’s so-called rape-shield law, which aims to pro­tect sex­ual-as­sault com­plainants from un­fair and ir­rel­e­vant scru­tiny of their sex lives, can­not be used to pre­vent an ac­cused from mount­ing a rea­son­able de­fence, On­tario’s top court ruled on Wed­nes­day.

As a re­sult, the court quashed the sex­ual-as­sault con­vic­tion of a man whose lawyer was barred from cross-examining a woman on her preg­nancy and or­dered a new trial.

In its rul­ing, the court ac­knowl­edged the crit­i­cal im­por­tance of protecting com­plainants from ques­tion­ing about their sex­ual ac­tiv­ity when that ac­tiv­ity does not form the subject mat­ter of the charge. Among other things, the court said, the rule takes into ac­count the pri­vacy in­ter­ests of a com­plainant and was prompted by con­cerns about de­ter­ring vic­tims from go­ing to po­lice and about feed­ing rape myths.

“Not­with­stand­ing these pow­er­ful con­sid­er­a­tions, there are times when such ques­tion­ing must be per­mit­ted,” the Ap­peal Court said. “This is one of those cases where a proper bal­anc­ing ... re­quires that such ques­tion­ing be per­mit­ted.”

Ac­cord­ing to court doc­u­ments, the ac­cused, then 20 years old who can only be iden­ti­fied as R.V., was on a fam­ily camp­ing trip in July 2013 when his cousin, 15, said he lured her to a wash­room and sex­u­ally as­saulted her in a shower stall. She then said she blacked out. R.V. de­nied any sex­ual con­tact with her.

A key part of the pros­e­cu­tion’s case was that the teen’s sub­se­quent preg­nancy cor­rob­o­rated her al­le­ga­tions — that only the ac­cused could be the fa­ther. The young woman sub­se­quently ter­mi­nated her preg­nancy and the fe­tal re­mains were de­stroyed, mak­ing it im­pos­si­ble to con­firm pa­ter­nity through DNA test­ing, court records show.

The de­fence ap­plied in a pre­trial mo­tion to cross-ex­am­ine her on her other sex­ual ac­tiv­ity as a way to at­tempt to re­fute the propo­si­tion that R.V. had im­preg­nated her dur­ing the sex­ual as­sault. How­ever, the judge hear­ing the ap­pli­ca­tion re­fused to al­low the cross-ex­am­i­na­tion.

In 2016, Judge Robert Gee con­victed R.V. af­ter up­hold­ing the ear­lier rul­ing as bind­ing on him. Both those de­ci­sions were in er­ror, the Ap­peal Court said.

The higher court said the pre­trial judge was wrong in find­ing that R.V.’s at­tempt to ques­tion the teen amounted to a “fish­ing ex­pe­di­tion”.

Newspapers in English

Newspapers from Canada

© PressReader. All rights reserved.