Rape Shield Laws: Canada
Nicole Hahn Rafter, ed, Encyclopaedia of Women and Crime. Phoenix, Arizona: Oryx Press, 2000, pp. 226-227
1 Pages Posted: 19 Sep 2013
Date Written: 2000
Canada Rape Shield Law, which seeks to place limits on an accused man’s use of a women’s prior sexual experience to defend himself in a rape prosecution, has been the site of feminist struggle over both form and content since the mid-1970s. Prior to 1976, the use of a women’s sexual history in sexual assault prosecutions was governed by the common law, which permitted the defense to undermine credibility by asking the victim/witness about her sexual experience and to contradict her answers, although it did not force her to testify in response.
Three versions of the Rape Shield Law have been implemented in the intervening years. The first version was passed in 1976 when section 142 was added to the Criminal Code. It required the defense to give particulars and notice of intention to use evidence of sexual history at an in camera (nonpublic) hearing, after which a judge would determine whether excluding the evidence would preclude “just determination” of factual issues, including credibility. In R v Forsythe (1980), the Supreme Court of Canada interpreted this enactment to have expanded the common law such that the victim/witness could now be compelled to respond to questions regarding her past sexual history — thus worsening, not improving, her position.
In 1983, Parliament enacted the second Rape Shield Law as part of a wholesale revision of Canadian sexual assault legislation. Section 276 prohibited adduction of sexual history evidence with someone other than the accused unless it fell within one of three exceptions: rebutting prosecutorial evidence, establishing identity, or supporting a defense of mistaken belief in consent. But the Supreme Court, in R v Seaboyer; R v Gayme (1991), declared section 276 inoperative because it conflicted with the accused’s rights to a fair trial and a presumption of innocence, and because hypothetically relevant and probative evidence could be excluded without any opportunity for judicial determination. Seaboyer dictated a return to the common law position that recognized judicial discretion to determine “relevance” and “admissibility,” subject to new “guidelines, ” and to the principal that the “twin myths” that women who are sexually active are more likely to consent or to lie must not be the basis for relevancy determinations.
The negative reaction of the Canadian public and the women’s movement prompted the federal government to pass a third Rape Shield Law, Bill C-49, in 1992. The new section 270 governs the admissibility of evidence of all sexual activity, including that between the victim/witness and accused; admissibility is determined at an in camera hearing in which the victim/witness is not a compellable witness. The law prohibits reliance upon the “twin myths” to determine relevance; the onus is on the defense to demonstrate that the proposed evidence pertains to “specific instances” of the victim/witness’s sexual activity; and the judge must determine whether the evidence has significant probative value not outweighed by its prejudicial effects, taking into account the need to remove discriminatory biases from the trial process and the need to protect victim/ witness’s dignity and privacy, among other factors.
This third Rape Shield Law has had checkered success in terms of protecting victims/witnesses from discriminatory admissibility decisions. Its impact has also been blunted by defense efforts to obtain women’s personal record to achieve discreditation and intimidation. Finally, although section 276 has been unsuccessfully challenged in the lower courts in R v Darrach, its constitutional validity remains to be determined in the Supreme Court’s response to an appeal argued in February 2000.
Keywords: rape shield laws, man, accused, women, prior sexual experience, sexual assault, prosecutions, common law, credibility, victim, witness, section 276, admissibility, evidence, Canada, Bill C-49
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