The consequences of an allegation of sexual assault
This article is written as a basic informational tool for the layman with limited or no legal training. It deals with 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 opinions expressed here are those of the author, a lawyer appointed to the Ontario Bar Association in 1984, who has exclusively practiced criminal defense work ever since.
The subject is approached from the perspective of a person charged with a crime of sexual assault in Ontario. As a defense attorney who has represented hundreds of such individuals, this perspective is all too familiar to me. Shock and disbelief at the process is the most common reaction of these defendants.
First, it is necessary to understand that the nature of the criminal charge that is made radically influences the nature of the police investigation that follows. While “tunnel vision” can infect any investigation, for the most part it is true to say that a police investigation will at least attempt to determine: (a) if a crime has occurred and (b) once a crime is established, who did that.
However, with certain allegations, particularly allegations of domestic assault or sexual assault, no such investigation is carried out. Once an accusation of sexual assault is made, no matter how dubious the claim or the character of the person making it, law enforcement investigators almost invariably assume the truth of the accusation. The “investigation” that follows will consist of a process of gathering evidence to support the accusation, rather than collecting evidence to determine whether the accusation 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 against previously inviolable criminal justice principles designed to protect the innocent. In many ways, the mantra of whistleblower sensitivity now prevails over the presumption of innocence, the right to confront the accuser in court, and the right to a full and fair cross-examination of that accuser.
An overwhelming environment of political correctness, coupled with official directives to police officers and Crown attorneys, prohibits the questioning of sexual assault complainants. Similar directives prohibit police officers from exercising discretion in filing charges and prosecutors from exercising discretion over whether or not to proceed with cases once they reach court. Notable changes in court procedures and evidentiary rules further complicate the path for anyone charged with these types of allegations.
Whistleblowers often testify from behind privacy screens or over closed-circuit television so that they do not have to look at the accused while testifying. 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 the 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 defendant of sexual assault cannot present evidence of prior sexual activity between him or her. and the accuser. .
No whistleblower under the age of eighteen is required to repeat the accusation in court, but rather their videotaped statement to the police is reproduced in court and constitutes evidence on the matter. This procedure nullifies a centuries-old recognition by law enforcement investigators, lawyers, and judges that the most elementary test of reliability is the ability of the accuser to repeat the accusation consistently. 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 subject to lower credibility assessment standards than those used to assess the testimony of adult witnesses. While few would argue that young children require just such adaptations, there is a staggering inability or willingness on the part of legislators, the appellate courts interpreting the legislation, and some trial judges to distinguish between children’s cognitive abilities and those of children. young adults. Inconsistent (and dangerous) ways, a seventeen-year-old whistleblower often receives precisely the same evidentiary protections and testimonial accommodations as a much younger child.
Prosecutors are often of the opinion that because these events often 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. However, it should not be forgotten that such charges are easy to make and often difficult to defend for precisely the same reasons. The current legislative structure and judicial mentality of criminal justice, unfortunately, favors the false accuser to at least as much as the true victim.
Bail in sexual assault cases
It is in the context of a request for bail that the accused of sexual assault must be prepared for a rude awakening. In some jurisdictions, prosecutors, too often followed by supposedly objective jurists deciding whether to post bail, take the position that all sexual assault allegations require a release from the bail that confines the defendant to their own home in all times unless accompanied by your warranty. It is notorious that in an Ontario jurisdiction, 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 accused of sexual assault must be prepared to meet 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 accusation is made in the context of the workplace or school setting, be prepared to seek another job or education, or perhaps suspend both before bond 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 in same-sex charges) are routine.
In today’s criminal justice environment, a mere indictment has the potential to change the life of the accused. Although attention 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 the assumption of guilt motivates the judicial process in which he is trapped.
PRIVACY
In any sexual assault trial, an order will be issued prohibiting the release of any information that may reveal the identity of any complainant or witness in the case. There is no such right for the accused.
Upon conviction, the court will order the convict 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 life. There is limited discretion in the court of first instance to exempt from registration if the impact on the convicted person is “extremely disproportionate to the public interest of protecting society through the effective investigation of crimes of a sexual nature.” The granting of the exemption is extremely rare.
Each criminal charge results in the creation of a record of the charge in various police databases, such as the Canadian Police Information Center (CPIC). This record of the position is permanent. Subject to very limited legislative exceptions, various law enforcement agencies have different and unregulated policies regarding whether and what they will disclose to potential employers or other agencies requesting the release of an individual’s records.
Certain types of criminal history searches, such as a vulnerable person search, will retrieve unlimited information about the subject of the search, including the fact that charges were filed even when the result was an acquittal or the charges were dropped. The Ontario Court of Appeal recently ruled (in Tadros v. Peel Regional Police Service [2009] DO No. 2158 – Denial of Permission to Appeal to the Supreme Court of Canada) that the withdrawn charges may be disclosed to the potential employer provided the applicant consents to the search on the employment application form.
One can imagine the employment possibilities if the job seeker refuses such consent. No legislation exists or is contemplated that would preclude the disclosure of acquittals or withdrawn charges. There is also no legislation that prevents potential employers from seeking inappropriate disclosure of applicants. Therefore, it is not uncommon to find questions on job application forms such as “have you been charged or arrested for a crime?”
Simply put, a false accusation of a sexual nature has the real potential to destroy one’s career, even when the falsehood of the accusation has been proven in court. This stark fact has the implicit support of legislators and the highest court in the country.