The Ethical Obligations of Defence Counsel in Sexual Assault Cases

Abstract

The treatment of sexual assault complainants by defence counsel has been the site of significant debate for legal ethicists. Even those with the strongest commitment to the ethics of zealous advocacy struggle with how to approach the cross-examination of sexual assault complainants. One of the most contentious issues in this debate pertains to the use of bias, stereotype and discriminatory tactics to advance one’s client’s position.

This paper focuses on the professional responsibilities defence lawyers bear in sexual assault cases. Its central claim is as follows: Defence counsel are ethically obligated to restrict their carriage of a sexual assault case (including the evidence they seek to admit, the lines of examination and cross-examination they pursue and the closing arguments they submit) to conduct that supports finding of facts within the bounds of law. Put another way, defence counsel are ethically precluded from using strategies and advancing arguments that rely for their probative value on three social assumptions about sexual violence that have been legally rejected as baseless and irrelevant.

The paper is divided into three parts. Part I elucidates the three social assumptions or narratives about sexual violence that have been explicitly rejected through law reforms. Part II demonstrates the ways in which, despite changes to the law, defence counsel often continue to rely on these rejected social assumptions about sexual violence. Parts I and II establish the foundation for the claims advanced in Part III. Part III examines the relationship between these three legal reforms, the internal and external limitations on the constitutionally guaranteed right to full answer and defence, and the impact of schematic thinking on assessments of complainant credibility. An examination of the relationship between these three factors demonstrates that even legal ethicists strongly committed to the concept of zealous advocacy should accept that there is an ethical obligation not to invoke, rely upon, and consequently perpetuate these three legally rejected social assumptions about sexual violence.

Keywords: sexual assault, rape, ethics, cognitive psychology, schematic thinking, heuristic, defense lawyers, zealous advocacy, due process, duty of loyalty, myth, stereotype, sexual history, credibility, cross-examination, defending rape