What type of evidence can be used against me / to defend me in sexual assault?

What type of evidence can be used against me / to defend me in sexual assault?

When I'm representing a client accused of sexual assault, the defence we build is tailored to reflect the evidence to be presented.

The primary evidence is testimony, with the alleged victim giving their version of the events in question. Since many sexual assault charges are not laid until months, or even years, after the alleged incident, memories are often not exact or sometimes they are even embellished to be more damning toward the person charged. As defence counsel,  my job is to carefully test that evidence and look for any inconsistencies that I can bring to the court’s attention.

That is important, as most cases of sexual assault come down to he-said/she-said scenarios. Even if both parties agree there was sexual involvement, they may disagree on whether consent was given, not just at the start of the encounter but throughout.

The Criminal Code defines consent as the “voluntary agreement of the complainant to engage in the sexual activity in question. Conduct short of a voluntary agreement to engage in sexual activity does not constitute consent as a matter of law.”

Forensic evidence is often important

Forensic evidence, such as the presence of semen, saliva, fingerprints or hair, can play an important role in cases where the accused says the sex did not occur. However, if both sides agree there was sexual activity but disagree on whether consent was given, forensic evidence may have little value, as semen or hair on someone’s clothes does not mean there was unwanted sex.

Surveys have shown juries expect to see DNA evidence presented during a trial, and one study states that popular television shows such as CSI are one of the reasons.

South of the border, the so-called CSI-effect was credited in the acquittal of two former New York City police officers accused of raping a woman after no semen or other physical evidence from them was recovered in her home or on her body. According to a news report, the jury said the woman’s “powerful and graphic testimony” alone was not enough to convict.

Problems arise in “he said/she said” cases where the alleged suspect is not a stranger and admits some form of sexual interaction took place. In the vast majority of crimes of sexual assault, the accused is known to the victim. A study by the Canadian Department of Justice found that in 80 per cent of sexual offences in 2002, 41 per cent were assaulted by an acquaintance, 28 per cent by a family member, 10 per cent by a friend, and the remaining 20 per cent were victimized by a stranger.

In cases where the suspect and victim are acquainted, consent is pivotal to determining whether a crime was committed, and the presence of the suspect’s DNA may not necessarily be informative.

The era of electronic evidence

Text messages and social media posts are playing an increasingly important role in sexual assault trials. However, whether correspondence between the accuser and the defendant should be considered evidence depends on the nature of the message.

Let’s use the example of a woman who privately messages a man and says, “That was great sex last night.” If she later decides to have him charged with sexual assault, that message from her will be very helpful to me in proving the sex was consensual.

If the man receiving that message were my client, I would tell him to make a printout of her correspondence  pertaining to the night in question so we can use it in his defence later. Don’t just assume you will be able to retrieve these messages electronically when the issue is heard in court, months or a year later, as it may be lost or deleted.

When my client’s court date draws close, I would make a third-party record application to the court, clearly stating what the records – the emails in this case – are that I am seeking and why they are relevant to my client’s defence.

This formal request to see and use these documents is necessary, as the courts have ruled that almost all electronic messages between individuals are third-party records, meaning they are of a personal nature and the person who sent them assumes they will stay private.

Texts or Facebook messages may fall into the category, depending on how they were sent. If exchanged privately between two people, the court will probably rule they are third-party records as compared to someone writing a message on their virtual wall, open for everyone to see.

Electronic evidence has drawbacks

A study published by researchers at three Canadian universities looked at 70 interviews with sex crime investigators from across Canada, before reaching the conclusion that while digital evidence certainly provides more opportunities for documenting the context and content of acts of sexual assault, “police perceive this evidence as a double-edged sword that provides both more evidence and new challenges for police and victims.”

According to the study, while digital evidence may provide valuable insight in some cases, police are concerned it “provides new challenges for already overburdened sex crime units and makes cases more lengthy and invasive for victims.”

According to a news report on the study, police are frustrated at the length of time it takes for a forensic examiner to review an electronic device. That frustration is shared by the young people asked to turn over their phones for an extended period of time, “for many, a lifeline to their support network,” according to the story.

Video technology is useful but not perfect

Video surveillance cameras are ubiquitous in many major cities, as businesses use them to attempt to cut down on shoplifting or to disprove claims made by people for being injured by falling on their property. The evidence these cameras gather can play an important part in many sexual assault trials.

In 2019, the Ontario Superior Court of Justice found two men guilty of gang-raping and drugging a woman at a Toronto bar, with their interaction caught on the bar’s eight cameras, which was presented as evidence at the trial, after her counsel filed a third-party application.

The judgment notes that “most of what took place in the bar that evening was video recorded by surveillance cameras,” so that footage played an important part in the conviction.

However, court documents also showed that the court was aware that “the video recording is not accompanied by an audio recording, and the accused have stated that they intend to advance the defences of consent and honest but mistaken belief in communicated consent on the sexual assault charges.”

Defendants may benefit from video cameras in locations other than the alleged crime scene. Most hotels, retail stores and coffee shops have cameras constantly rolling, which may help prove a defendant’s presence in these establishments during the time they are alleged to have committed a crime elsewhere.

Past sexual history is not usually relevant

There are many rules legal counsel must abide by when questioning the complainant in court, such as what are commonly known as “rape shield laws.” In the 1980s, new provisions under s.276 of the Criminal Code banned the admission of prior sexual history evidence in cases where it went to support the “twin myths” (the idea that complainants with a prior sexual history are more likely to have consented and are less worthy of belief).

While these changes restricted the admissibility of evidence of the complainant’s sexual history, judges were left with significant discretion, leading to the new rules being applied unevenly across Canada. This inconsistency is another reason to have competent legal counsel at your side during a trial.

While it can be hoped that charges of sexual assault would only be laid when the evidence warrants it, the public record shows that is not always the case. National policing data compiled by The Globe and Mail in 2017 revealed that one of every five sexual assault allegations in Canada is dismissed as baseless.

How can I help you?

Facing allegations of sexual assault can devastate your career and community standing and could even lead to imprisonment if you're convicted. As a sexual assault lawyer in Ottawa, I stand ready to build your defence. If under investigation or charged, contact me before speaking with the police. One of the outlined defences could apply to you, or we can tailor a strategy to your case. Reach out to me at 613.863.8595 for a free consultation.