What are the best defences in sexual assault cases?
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What are the best defences in sexual assault cases?
If you have been charged with sexual assault, there are two main defences your lawyer can rely on: a claim of innocence (i.e. no sexual assault occurred), or one of an honest but mistaken belief that consent to sexual relations was given.
When an accused person maintains they are innocent, their position is that sex occurred, but that it was consensual. It may be the case that following the event, their partner feels bad about it, calls it rape and reports the incident to the police.
An honest but mistaken belief in consent defence, meanwhile, is something I would rely on in cases where I can demonstrate that the accused person took reasonable steps in the circumstances to ascertain that consent was given.
In a recent post on this subject, I explored the concept of what constitutes consent from a legal perspective. It does not have to be spoken, but it must be clear, voluntary and expressed by the words, actions or body language of the person who is giving consent. It doesn’t mean someone has to ask their partner’s permission before every physical contact that could lead to sex. Consent exists if your partner allows you to make contact, without being forced or coerced, of course.
Seeking legal advice
Once my client hires me, I ask them to write down everything they remember about the incident and to continue adding details to that record as they occur to them. If they’re reluctant to share details, I assure them that as a lawyer who frequently defends clients in sexual assault cases, there is nothing I haven’t seen. My job is not to judge –– it is to defend clients to the best of my ability.
In my initial consultation with a prospective client, I advise them not to hire the first lawyer they contact. That might sound counterintuitive to my business interests, but it has proven to be an effective strategy, for me and my clients.
Clients have to feel comfortable with their lawyer. Being charged with sexual assault is a very serious matter and one that can take months to resolve, so it’s important they feel a rapport with the person who will be defending them.
The defendant’s account of events
I always advise my clients to create a written account of what happened in as much detail as possible. I specifically caution them not to “edit” details they don’t feel are relevant or useful to the case, but to instead download everything they have. In many instances, something my client doesn’t see as useful ends up being a critical piece of information in their defence.
For example, in one recent case, my client was charged with sexual assault involving his girlfriend’s daughter, who he had spent the day with while she was off school. The girl claimed he touched her inappropriately while at his home, but my client vehemently denied anything happened –– or that they ever went to his house.
We recreated the events of that day based on his account and by referencing the people and places he visited with the girl, along with text messages and phone calls to various witnesses.
At trial, the girl testified that my client brought her to a McDonald’s restaurant and then back to his home where he assaulted her. During cross-examination, I asked the girl if my client took her to his mother’s house at any point, and she said he did not. This event was critical as my client had told me that the pair went to his mother’s house in the afternoon to use the bathroom. My client’s mother testified that although she was not home at the time, it was obvious the girl had been there as her muddy shoeprints were on the freshly cleaned floors.
After the first day of what was meant to be a five-day trial, the girl admitted she lied. I was able to negotiate with the Crown to withdraw charges, providing my client entered into a peace bond, agreeing to have no contact with the girl.
What evidence is presented in sexual assault cases?
Complainant’s testimony: The first significant piece of evidence in a case is the complainant’s testimony, which the court considers critical, even if the accused person argues that the complainant is not being truthful. Their account of what happened –– in and of itself –– is evidence.
My role as a criminal defence lawyer is to cross-examine the complainant and expose any frailties with their testimony. Depending on the circumstances, there could be an issue with that person’s credibility or reliability. As a lawyer who has successfully defended numerous clients charged with sexual assault, I have a great deal of experience questioning complainants and exposing inconsistencies in their testimony. For example, maybe at trial, their account of what happened differs from what they told police during the original interview. All of that is used by the judge to consider whether that person is being truthful.
Text messages: In some cases, there may be a text message that contradicts the complainant’s testimony around what happened. For example, if I can demonstrate through the text messages exchanged between the accused and the complainant that they agreed to get together to have sex, I can go through a process to have those messages admitted as evidence.
I have represented many clients where the charges were dropped because I was able to present electronic messages from the complainant explicitly asking the accused, “Hey, why don’t you come over and we’ll have sex,” followed by “Wow, that was great” types of text messages.
DNA evidence: The Crown may introduce DNA evidence to prove that the accused and the complainant had sex, but that doesn’t prove the encounter wasn’t consensual. If sex occurred between two people, it’s reasonable there would be DNA evidence.
Medical records: The Crown may also introduce medical records to show bruising on the complainant’s body, which they argue is an indication of an assault. Again, bruises in and of themselves don’t prove that’s the case. When a couple engages in consensual “rough” sex, it’s reasonable to expect that bruising will be present.
Photos and videos: Electronic files such as photos and videos are often entered as evidence in sexual assault trials. From a defence perspective, I look for photos and/or videos that substantiate my client’s account of what happened, such as those taken during sex that demonstrates they were both consenting, laughing and having fun together.
Psychiatric evidence: Sometimes, sexual assault charges stem from an incident that happened years ago. The complainant may have seen a counsellor or therapist. While there are stringent rules around accessing those types of records, if I can argue that they’re relevant, I can make an application to use them in court. They could be helpful to show a change in the complainant’s disclosure –– in other words, if they describe a different version of events to the police than they did with a therapist.
Defendant’s testimony: Especially in “he said/she said” cases, the accused person will have to testify. Preparing him or her before the trial to understand the court process, what’s expected of them, and how to properly answer questions is a critical aspect of defence strategy.
Navigating police interviews
Getting a phone call from a police officer who wants to interview you in connection with a sexual assault is a nerve-wracking experience. It’s usually at this point that the client contacts me, looking for guidance on what they should do. Each case is different, and my advice is based on that person’s particular circumstances.
I collect as much information from the client as possible as to what the officer told them. In some cases, the police are looking to interview my client, or they believe they have grounds to make an arrest. I ask the officer if they will be releasing my client or sending them to bail court where they may have conditions imposed on their release by a judge.
If they are being arrested and sent to bail court, I try to schedule it for when my client will have the least amount of stress. If the officer intends to release the person with conditions, I work with the client to determine the best time to go to the station. For example, if the interview is on a Friday afternoon, they will most likely spend the night at the police station and be brought into court on Saturday, which is less than ideal. If the officer feels my client won’t be released, I’ll request that it be done on a weekday, as early as possible so they can be brought to show cause in the afternoon.
Sometimes I’m aware of the charges my client is facing before they meet with police, but that’s not always the case, making it challenging to advise them appropriately.
Unlike what you see on TV when the police question people, their lawyer isn’t sitting next to them, providing guidance. In Canada, an accused person has the right to instruct counsel and to timely advice, but not to have their lawyer present during a police interview.
Once I know what my client is being investigated for or the charges against them, I meet with them to get their account of what happened to figure out the next step. Sometimes their account reveals details about the sexual encounter to show that it was, indeed, consensual. One example is text messages from the complainant inviting them over for sex. In that scenario, I strongly urge my client to give that information to the police, as charges might be avoided altogether.
What you say can be used against you
People need to be aware that when the police interview them in connection with a sexual assault, that conversation will be recorded, and anything they say can later be used against them in court. That’s an important point because if an accused person maintains they are innocent and have nothing to hide, their inclination is to speak freely to police, hoping that by telling their side of the story, it will clear up what they believe is a misunderstanding of the events.
But there is a great deal of ambiguity in our everyday language, and people don’t always answer questions with responses that only have a single interpretation. They might have to explain in court later that what they said during the police interview is not what they meant. Again, being questioned by police is stressful, and sometimes people answer quickly with the first thing that comes to mind instead of thinking fully about what they’re saying and how it could be interpreted.
If I feel strongly that my client is going to be arrested following the interview, I might advise them to say nothing to police as it likely won’t prevent charges from being laid. The officer is allowed to continue asking questions, and quite often, that’s how they encourage an accused to open up and say more.
Building a defence strategy
Once I have the Crown’s disclosure –– all the evidence against the accused –– I review it with my client. Doing so may prompt them to remember relevant details that can be added to their original account of what happened.
If our defence is an honest but mistaken belief in consent, for example, I probe my client with questions around exactly what was said, what actions occurred, and so on that caused them to believe that they had the other person’s consent.
From there, I look through all the information –– statements from the complainant and my client, medical and electronic records, etc. –– including relevant case law, to build my defence. In most trials, it will be a judge alone who determines the fate of my client, so my job is to build a fact-based timeline to demonstrate how it would have looked from my client’s point of view.
How can I help you?
Facing allegations of sexual assault can devastate your career and community standing and could even lead to imprisonment if you're convicted. As a sexual assault lawyer in Ottawa, I stand ready to build your defence. If under investigation or charged, contact me before speaking with the police. One of the outlined defences could apply to you, or we can tailor a strategy to your case. Reach out to me at 613.863.8595 for a free consultation.
