This whole Jian Ghomeshi debacle has been a cultural and media firestorm. There are countless articles, commentaries, conversations and opinions swirling throughout Canada. There has certainly been a positive outcome, that being, that the issue of unreported violence against women is at the forefront of public discourse, and we are seeing that it is a problem more widespread than most of us realized.
When this story first broke there were an awful lot of people, myself included, who were asking “If this is true, why won’t any of these women report it to the police?” People familiar with the phenomena wrote articles and blogs in an attempt to help us understand why women may not want to go to the police. The most widely-read of these articles amongst my social circle was written by Sandy Garrosino for the Huffington Post: http://www.huffingtonpost.ca/sandy-garossino/jian-ghomeshi-women-report-sex-assault_b_6059124.html .
Ms. Garrosino is a “Former Crown Prosecutor” and in her article Ms. Garrosino shared some very helpful insights into this troubling trend. As a criminal defence lawyer and a former Crown prosecutor myself, I feel the need to weigh in on the issue and clarify some misconceptions. If people are going to make a decision about reporting alleged criminal activity to the police they should have an accurate understanding of what they can expect.
Don’t misunderstand me. Reporting allegations of a sexual nature, or that arise from situations of intimate relationships, is a taxing endeavour at best. As a criminal defence lawyer it is my job to test every witness’ evidence and diligently put forward every defence available to my clients. The system is set up so that innocent people aren’t convicted, and yet they still are. The Crown needs to prove all allegations beyond a reasonable doubt, because innocent people are accused of crimes, and despite what you may read elsewhere, people are falsely accused of crimes of a sexual nature. That is a fact I can guarantee.
Because it has traditionally been so hard on people who are reporting allegations of a sexual or intimate nature, for quite some time the trend amongst Canadian Parliament and courts has been to make it easier at trial for people (routinely women) who report these types of incidents. The protections and changes have been varied and numerous. I will review a few of the more major ones.
The biggest protection offered to complainants is the publication ban. These are routine in cases with an allegation of a sexual or intimate nature. These bans prevent the publication, in any form, including social media, of the name or image of the complainant or any other information that may identify them. Often this includes the ban on publication of the identity of other witnesses in the proceedings or even of the accused, if releasing the accused’s identity would make it obvious who the complainant was.
I would say that the second most important protection offered to complainants is that evidence that the “complainant has engaged in sexual activity, whether with the accused or with any other person, is not admissible” to support a theory that the complainant “is more likely to have consented to the sexual activity that forms the subject matter of the charge” or that the “complainant is less worthy of belief.” (s.276 Criminal Code of Canada) There is a process available to apply to a judge for an exception to this, where the defence would be allowed to lead evidence of a complainant’s sexual prior sexual activity, but it is onerous, and even if defence counsel is successful, the evidence can still never be offered for the purpose of suggesting that the complainant is less worthy of belief or more likely to have consented to the alleged criminal sexual activity.
The other biggest change in the law has been the removal of the need for corroboration of an allegation of a sexual nature. Previously, under Canadian criminal statute and common law, corroboration was required in order to convict an accused of a sexual offence. That is, that someone other than the complainant had to give evidence to back up the complainant’s allegation, or there simply could be no conviction. This has been specifically removed from Canadian law for decades, yet some observers (it would seem Ms. Garrosino included) still believe that although not required by law, corroboration is a necessity for a conviction. That is simply not true. In my work with the Prosecution Service of BC, I was junior counsel on several trials where we convicted accuseds of sexual crimes where it was he-said she-said with no corroboration by third parties, including cases where the sexual activity between the parties began as consensual.
Again, I will reiterate that I am not saying that bringing these allegations forward is a picnic, by any stretch. I am also not saying that we should judge or demean a person’s choice to bring such allegations forward, or to deal with them in whatever manner they see fit. What I am advocating is that people make these decisions, do so based on an accurate understanding of the situation they are getting into, or choosing to forgo.