Court deems rape-shield law badly ap­plied, or­ders new trial

Times Colonist - - B.c. / Canada -

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 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 then-20-year-old ac­cused, iden­ti­fied only 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.

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