For many people accused of sexual assault, the question that weighs most heavily on their mind is “how could this happen?” How is it that an accusation levelled against them from one person can have effects that ripple through every aspect of their lives, and how is it that charges can go forward after only one person’s version of events is heard?
In order to understand how we got to this point, it’s helpful to know something about the procedural aspects of sexual assault charges and some of the historical hurdles to sexual assault investigations.
Evidence in sexual assault cases
Oral testimony is usually the best evidence that Crown Counsel has to prove their case. The same thing is true of many crimes, including simple assault and uttering threats.
Most sexual assault cases don’t involve physical evidence. Either the results from a forensic investigation were unclear or inconclusive, the complainant did not consent to a medical examination or the alleged assault did not involve any actions that would transfer DNA. Sometimes, the events in question happened so long ago that any forensic evidence that did exist is no longer available.
When there is forensic evidence, there are often multiple explanations available for its existence. Consequently, the backbone of the Crown’s case is almost always going to be based in oral testimony. This means that a sexual assault trial is typically decided based on an assessment of the credibility and reliability of the complainant’s statement. This doesn’t mean that just anyone can say anything and get a conviction. It does, however, mean that allegations, whether they are corroborated or not, carry significant weight.
Changes in the law
Historically, the victims of sexual assault have faced an uphill battle in getting anyone to believe them (including police, Crown Counsel and judges) and have had their credibility undermined on what are now understood to be irrelevant issues, such as how many people they had sex with in the past or what they were wearing on the night in question. The law evolved in order to address this and encourage more victims to come forward. The changes in law took decades and sexual assault law is still evolving to deal with this ongoing social issue. It does, however, mean that defending someone accused of sexual assault requires a high level of focus and carefully crafted cross-examination.
It’s important to know that many of the changes to the law came about either before or concurrent to the emergence of the #metoo movement in 2017. What did change with #metoo is that the number of victims coming forward increased, and the state’s response to allegations of sexual assault seems to have become more rigorous. In short, a complaint that might not have been made two years ago is now more likely to make its way to the police, and the police are more likely to respond with a thorough investigation than they were in the past.
Crown, similarly, is more likely to approve charges. A verbal accusation is enough to ground a conviction and needs to be challenged by a skilled defence lawyer. An accusation of sexual assault, with or without corroboration, will have a serious impact on the accused person and can have lasting legal consequences. It is important to contact a lawyer if you have been accused of sexual assault.