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#MeToo and sexual assault prosecutions

A look at what's changed.

Protest on sexual justice

For many clients 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?

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.

Oral testimony is usually the best evidence that Crown counsel has to prove their case. Indeed, most sexual assault cases do not turn on 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. In cases of historical sexual assault, the events in question happened so long ago that any forensic evidence that did exist is no longer available.

Further, even when there is forensic evidence, there are often multiple explanations available for its existence. 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 does not mean that just anyone can say anything and get a conviction. It does, however, mean that allegations of sexual assault, whether they are corroborated or not, carry significant weight.

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 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 that gets at the root of the issue without being derailed by focus on impermissible subjects.

It is important to know that many of the changes to sexual assault law came about either before or concurrent to the emergence of the #MeToo movement in 2017. What did change with #MeToo, however, 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, may be more likely to approve charges.

An accusation of sexual assault, with or without corroboration, will have a serious impact on the accused person and can have lasting legal consequences. With the advent of #metoo and an increase in reporting, it is imperative that criminal defence lawyers stay up to date with the recent changes in legislation and case law to avoid all-too-common pitfalls in defending their clients against an accusation of sexual assault.