Jurors’ beliefs coming into the crosshairs

Sexual assault cases already fraught with pitfalls

It’s probably not what people would expect to come out of the #MeToo and Believe Women movements.

Or maybe some people, more pragmatic or prescient than I, have expected it all along.

Sexual assault cases are fraught with pitfalls, the biggest of which is that the events that lead to a charge happen between two people in the absence of other witnesses.

Judges, and often juries, have to look at what are often termed “he said/she said” cases and try to decide who is telling the truth, or at least, whose version of events is closest to what actually happened.

It’s not easy, and since decisions have to — in criminal trials — establish guilt “beyond a reasonable doubt,” you often will read verdicts where a judge actually spells out that they aren’t suggesting a complaint’s evidence is false. It’s just that there just isn’t enough of that evidence to justify a conviction.

When cases go before a jury, jury members also have to decide who to believe — and for those defending the accused, the makeup of the jury can be crucial.

What’s interesting is the impact that criminal defence lawyers believe movements like #MeToo might be having on some prospective jurors.

In at least five cases in the last 18 months across the country, defence teams have raised an interesting question: does the heightened presence of movements like Believe Women mean that jurors should be questioned on whether they’re more likely to accept testimony from a woman — and whether the answers could disqualify some potential jurors?

The latest case is from Alberta (where the issue is somewhat complicated by the fact that the provincial government and its involvement in the I Believe You campaign to support sexual assault victims).

As the judge in the case of the Queen vs. Way explained it, “The widespread bias, the accused argues, is that the default response is to believe alleged victims of sexual assault. It is argued further that the widespread bias has largely been created by the ‘I Believe You’ movement.”

“How mindbending would it be if efforts to publicly support women started knocking people off of juries?”

In the case, the defence team for a man accused of sexual assault asked the court for permission to ask potential jurors a series of questions, including, “Do you think people who allege sexual assault should always be believed? Do you think people who allege sexual assault are never responsible for what occurred?”

So far, the verdicts in all of the cases have echoed a 2001 Supreme Court of Canada ruling that says it’s a benefit to have jurors with a wide range of experience and beliefs, and that jurors aren’t expected to be without personal opinions — but that, within the confines of a case, jurors should, and do, focus impartially on the facts of the case at hand.

One part of the most recent judge’s verdict that’s worth keeping in mind?

That the issue is far from dead.

“No one suggests that (current case law) closes the door on offence-based challenges for cause. It’s just that the decided cases have yet to open the door. That day may or may not come. If and when it does, it will likely be supported by an evidence-based finding of widespread bias that a prospective juror will be unable to set aside.”

So, the line is clearly drawn: if there’s clear evidence that a juror believes women to the point that they can’t hear a case fairly, there may be a whole new set of questions that could try to remove jurors for bias.

How mind-bending would it be if efforts to publicly support women started knocking people off of juries? It’s an argument we’re guaranteed to hear again.