Sexual assault cases typically tough to win
As the trial of disgraced broadcaster Jian Ghomeshi puts the issues of consent and sexual harassment in the national spotlight this week, legal experts caution that convictions in cases of historic sexual assaults are not easy to secure.
Ghomeshi, the former host of CBC Radio’s cultural affairs show “Q,’’ faces four counts of sexual assault and one count of overcoming resistance by choking at his judge-alone trial.
The alleged offences date as far back as 2002, and legal experts say the passing of time often poses a significant challenge to winning a conviction in such cases.
“The obvious answer is just the degradation of evidence,’’ said Karen Bellehumeur, a former Crown prosecutor who dealt frequently with sexual assault cases. “Not only has the memory of the survivor of the abuse degraded so that peripheral details are not as clear, but also there is no longer the corroborating evidence to be investigated by police.’’
Such evidence could include DNA, observations about injuries or damaged clothing, and witnesses, Bellehumeur said, noting that with little physical evidence, such cases typically boil down to a “he said, she said’’ scenario, especially when the accused and complainants know each other. The issue of consent in those cases, she said, becomes a key element.
“The main problem is that when you have a case that’s just one word against the other, which tends to happen more in historic cases ... then a criminal case has just such a high standard of proof that it becomes very difficult,’’ Bellehumeur said. “Unless there’s a real disparity between the believability of the complainant over the accused then it’s going to be very difficult for the Crown to prove a case beyond a reasonable doubt.’’
One positive aspect of dated sexual assault cases, however, is that the announcement of charges against an accused can prompt other complainants to come forward, which in turn can help the prosecution, Bellehumeur added.
Complainants who take the witness stand, however, will be grilled by the defence who will be seeking to punch holes in their story.