Why Equality Demands that Prior Sexual Misconduct Evidence Be Presumptively Admissible in Sexual Assault Cases
David M. Tanovich
University of Windsor - Faculty of Law
January 3, 2010
SEXUAL ASSAULT LAW, PRACTICE & ACTIVISM IN A POST-JANE DOE ERA, Sheehy, ed., Ottawa: University of Ottawa Press, 2010
There has been very little critical and feminist commentary in Canada on the admissibility of prior sexual misconduct evidence as similar fact evidence in sexual assault cases. The lack of critical attention to this area of evidence law is surprising given that the similar fact evidence rule, like other rules of evidence, serves as a site for gender, race, and sexual orientation bias.
The article’s thesis, set out in Part I, is that in cases that turn on the commission of the actus reus (which includes the issue of consent), admission rather than exclusion should be the starting point. It is an approach grounded in policy, fairness and equality principles rather than an assessment of probative value and prejudicial effect. It is also in keeping with the common law’s tradition of moving incrementally and the Supreme Court’s principled approach to the law evidence. The argument is, as will be developed below, not for an implementation of the categorical approach of Rules 413 and 414 of the Federal Rules of Evidence in the United States which makes admission the rule for all sexual misconduct cases. Under this article’s proposed presumptive approach, identification cases are excluded while putative collusion cases and cases involving racialized accused require additional safeguards because they raise reliability, probative value and prejudicial concerns that need to be addressed by the trial judge. These are discussed in Part I.
In support of a presumption of admissibility in actus reus cases, the article examines both formal and substantive equality justifications for a presumptive rule of admissibility. Part II examines the formal equality argument grounded in the “tit for tat” principle that has emerged in the law of evidence and which applies in this context. The argument is that fairness demands that the Crown be permitted to respond to the usual “whack the complaiant” defence tactics in sexual assault cases. Part III advances a substantive equality argument grounded in the need to take into account the gender bias that persists in similar fact adjudication. A core element of this bias is manifested in our courts failure to properly give effect to the fact that sexual assault is not a crime of sex and passion but one of violence. This bias has had a negative impact on cases as is evident from a survey examining post-Handy cases from 2002-2008 where courts frequently exclude the evidence because of a lack of so-called similarity in the nature of the prior sexual acts. The survey is set out in Part III. Finally, in Part IV, the article identifies and responds to feminist criticisms of a presumptive rule of admissibility.
Number of Pages in PDF File: 29
Keywords: Evidence, Similar Fact Evidence, Sexual Assault Cases
Date posted: January 5, 2010
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