The Ethical Obligations of Defence Counsel in Sexual Assault Cases

Osgoode Hall Law Journal 51:2, Forthcoming

Osgoode Legal Studies Research Paper No. 2/2014

34 Pages Posted: 28 Jan 2014 Last revised: 17 Feb 2014

See all articles by Elaine Craig

Elaine Craig

Dalhousie University - Schulich School of Law

Multiple version iconThere are 2 versions of this paper

Date Written: January 1, 2014

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.

Keywords: sexual assault, feminism, consent, role of defence counsel, ethical obligations of lawyers

JEL Classification: K14, K19, K39, K41, K42, K49

Suggested Citation

Craig, Elaine, The Ethical Obligations of Defence Counsel in Sexual Assault Cases (January 1, 2014). Osgoode Hall Law Journal 51:2, Forthcoming; Osgoode Legal Studies Research Paper No. 2/2014. Available at SSRN: https://ssrn.com/abstract=2386204

Elaine Craig (Contact Author)

Dalhousie University - Schulich School of Law ( email )

6061 University Avenue
Halifax, Nova Scotia
Canada

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