The Consequences of a Sexual Assault Accusation

This article is written as a basic informational tool for the layperson with limited or no legal training. It is about the consequences and possible consequences for persons eighteen years of age or older against whom a crime of sexual assault is alleged. Different rules apply for defendants under the age of eighteen. The views expressed herein are those of the author, a lawyer appointed to the bar of Ontario in 1984, who has practiced exclusively criminal defense work ever since.

The topic is approached from the perspective of a person charged with a crime of sexual assault in Ontario. As a defense attorney who represented hundreds of such people, this perspective is all too familiar to me. Shock and disbelief at the trial is the most common reaction of such defendants.

First of all, it is necessary to understand that the nature of the criminal accusation that is made radically colors the nature of the police investigation that follows. While “tunnel vision” can infect any investigation, it is for the most part true to say that a police investigation will at least attempt to determine: (a) whether a crime has occurred and (b) once a crime is established, who he did it it’s.

However, with certain reports, particularly reports of domestic assault or sexual assault, no such investigation is conducted. Once an accusation of sexual assault is made, no matter how dubious the claim or the character of the person making it, police investigators almost invariably assume the veracity of the accusation. The “investigation” that follows will be a process of gathering evidence to support the allegation, rather than gathering evidence to determine if the allegation is true.

Why is this? Quite simply, the pendulum has swung from a time when allegations of sexual assault were not treated seriously enough. In the justice system’s efforts to correct the shortcomings of the past, the pendulum has swung back against previously inviolable criminal justice principles designed to protect the innocent. In many ways, the mantra of whistleblower sensitivity now trumps the presumption of innocence, the right to face the accuser in court, and the right to full and fair cross-examination of that accuser.

An overwhelming environment of political correctness, coupled with official directives to police officers and Crown lawyers, prohibits probing questioning of sexual assault complainants. Similar guidelines prevent police officers from exercising their discretion in bringing charges and prosecutors from exercising their discretion to proceed or not with cases once they reach court. Significant changes in court procedures and evidentiary standards further complicate the path for anyone charged with this type of charge.

Whistleblowers often testify behind privacy screens or on closed-circuit television so they don’t have to watch the defendant testify. Limitations on access to information about complainants and never-before-seen restrictions on the right to cross-examine them threaten to prevent defense attorneys from obtaining highly relevant information during trial. The most striking example of this approach is the rule, first established by the Supreme Court of Canada and now codified in the Criminal Code of Canada, that a sexual assault defendant cannot provide evidence of prior sexual activity between him or her. and the accuser. .

Any complainant under the age of eighteen is not required to repeat the accusation in court, but rather their videotaped statement to the police is played in court and constitutes the evidence on the matter. This procedure nullifies a centuries-old recognition by police investigators, lawyers, and judges that the most basic test of reliability is the accuser’s ability to consistently repeat the accusation. The procedure completely eliminates the concept of “inconsistent prior statements” as a means of assessing truthfulness.

In addition, courts have consistently ruled that children’s evidence should be held to lower standards of credibility assessment than those used to assess the testimony of adult witnesses. While few would argue that young children require just such accommodations, there is a surprising inability or willingness on the part of legislators to call on courts interpreting legislation, and some trial judges, to distinguish between children’s cognitive abilities and young adults. Incongruously (and dangerously), a seventeen-year-old whistleblower generally receives exactly the same evidentiary protections and testimonial accommodations as a much younger child.

Prosecutors often opine that, because such events usually occur in private, they are difficult to prove as they depend on the credibility of the respective actors, the classic “he said, she said” situation. It should not be forgotten, however, that such accusations are easy to make and often difficult to defend for precisely the same reasons. The current criminal justice legislative structure and judicial mindset, unfortunately, favor the false accuser to at least as much as the true victim.

BAIL IN SEXUAL ASSAULT CASES

It is in the context of a bail application that the sexual assault defendant should be prepared for a rude awakening. In some jurisdictions, prosecutors, too often timidly followed by supposedly objective jurists who decide whether to grant bail, take the position that all sexual assault allegations require a bail that confines the accused to their own home in all times unless accompanied by his or her security. Notably, in one jurisdiction in Ontario, bail is routinely denied in sexual assault cases unless the defendant agrees to this form of release, even in cases where the defendant has no criminal record.

In jurisdictions where a more reasonable approach prevails, the sexual assault defendant must still be prepared to comply with strict conditions of release. If the accusation is made in the context of your own home, be prepared to find another place to live. If the allegation is made in the context of the workplace or school setting, be prepared to find another job or education, or perhaps stop both before bail is granted. Bail conditions that prevent the defendant from attending licensed establishments or being alone with members of the opposite sex (or the same sex on same-sex charges) are routine.

In today’s criminal justice environment, a mere accusation has the potential to turn the defendant’s life upside down. Although lip service is paid to the guiding principle of criminal justice, the presumption of innocence, the person accused of sexual assault is well justified in perceiving that an assumption of guilt motivates the judicial process in which he finds himself trapped.

PRIVACY

In any sexual assault trial, an order will be issued prohibiting the publication of any information that might reveal the identity of any complainant or witness in the case. There is no such right for the defendant.

Upon conviction, the court will order the offender to register with the national sex offender registry established by the federal Sex Offender Information Registry Act. One’s name remains on this registry for a minimum of ten years and a maximum of lifetime. There is limited discretion in the trial court to exempt from registration if the impact on conviction is “grossly disproportionate to the public interest in protecting society through the effective investigation of crimes of a sexual nature”. Granting of exemption is extremely rare.

Each criminal indictment results in the creation of a record of the charge in various police databases, such as the Canadian Police Information Center (CPIC). This charge record is permanent. Subject to very limited statutory exceptions, various law enforcement agencies have different, unregulated policies regarding whether and what they will release to prospective employers or other agencies requesting the release of an individual’s records.

Certain types of criminal history searches, such as the Vulnerable Persons Search, will retrieve information about the subject of the unlimited search, including the fact that charges were filed even when the result was an acquittal or charges were dropped. The Ontario Court of Appeal recently ruled (in Tadros v. Peel Regional Police Service [2009] OJ No. 2158: permission to appeal to the Supreme Court of Canada denied) that dropped charges may be disclosed to the prospective employer provided the applicant consents to the search on the job application form.

One can well imagine the employment possibilities if the job applicant refuses such consent. No legislation exists or is contemplated to prevent disclosure of acquittals or dropped charges. There is also no legislation that prevents potential employers from seeking improper disclosure of applicants. Therefore, it is not uncommon to find questions on job application forms such as “have you been charged with or arrested for a criminal offence?”

Simply put, a false accusation of a sexual nature has the very real potential to destroy one’s career, even when the accusation has been proven false in court. This overwhelming fact has the implicit support of legislators and the country’s highest court.