Frequently Asked Questions
What is Reverse Disclosure in Sexual Assault Cases?
Reverse disclosure is a process where the Crown, through the complainant, provides the accused with any evidence that was not included in initial disclosure that is required for them to mount a full and complete defence. The intimate nature of sexual assault cases often leaves little evidence of the offence aside from the testimony of the accused and the victim. Reverse disclosure can help fill that gap.
The process is governed by s. 278.2 of the Criminal Code. Under that provision, the accused can make a written request for a record that they know to be in possession of the victim, or someone associated with them that is necessary for their defence. This record could include texts or other messages between the two parties that relate to the offence, or medical records stemming from the incident from a doctor or psychiatrist’s office. It is important to remember that this record must relate to a genuine issue of a case and in accordance with s. 276 of the Code, it cannot discuss the sexual history of the victim, or be used to undermine their credibility.
What Interrogation Tactics do the Police Use in Oshawa?
As mentioned above, sexual assault cases often produce limited evidence beyond the complainant’s statement and testimony as well as that of the accused. This lack of hard evidence leads the police to want to acquire more if they can. An example of this desire can be shown where a person in Oshawa has been arrested for sexual assault. As part of the interrogation the police tell the individual that now is the best chance to be honest and tell their side of the story. This coaxing of information out of the accused because it may help them later is simply an attempt to have the accused volunteer information that can be used against them later.
Police can use a variety of other tactics during an interrogation as well. This includes lying about the evidence they already possess. Officers may also try to frighten the accused by playing up the taboos associated with becoming known as a sexual offender. One popular example of this is the idea that convicted rapists and other sexual offenders sentenced to jail time are often beaten or otherwise abused by other inmates. While some of these techniques are underhanded, it is important to know that one justification for them is that any information acquired by the police can reduce the need for a trial and the chance of greater exposure and harm to the victim.
What are the Differences Between Civil and Criminal Law Regarding Sexual Assault?
A person can be held both criminally and civilly liable for a sexual assault. Where the Crown would handle a criminal matter and the case against an accused; a victim, known as a plaintiff in civil law and their lawyer would have to bring a case to a civil court against the alleged offender and sue them for committing the tort of battery. In criminal law the burden of proof upon which the Crown must establish that an offence occurred is beyond a reasonable doubt. However, civil courts dictate that a plaintiff need only to establish a tort on the balance of probabilities. This means that it is more likely than not that an offence occurred.
If the person accused of sexual assault is convicted in a criminal court, their civil liability is guaranteed. The issue in a civil case then becomes the amount of personal damage or loss experienced by the plaintiff as a result of the offender’s actions. Once that is established, a court will issue a monetary damages award as compensation for the assault.
What are the Implications of a Historical Sexual Assault?
The seriousness of sexual assault offences makes them one of the most commonly prosecuted historical offences in the Canadian legal system. Often, the traumatic memories of a sexual assault are repressed by a victim. As time goes on and the victim recovers through therapy or other means, their memory of the events around a sexual assault may return. They may also finally feel comfortable enough to pursue holding the offender accountable for their actions. At that point, the victim has a choice to make if they wish to attribute legal responsibility. They may wish to bring the allegations to the police and start a criminal proceeding, commence a civil lawsuit against the offender or both.
There is no effective limitation period in either criminal or civil law that prevents cases of sexual assault from being brought after a certain amount of time has passed since the event. The issue for the victim then in deciding how to proceed is based on the strength and reliability of the evidence they have of the offence. As mentioned above, the standard for finding an offender liable is lower in a civil court than a criminal one. This means that a victim may find it easier to satisfy a civil judge that the assault is more likely than not to have occurred, than to meet the higher criminal burden of proof.
How has the #MeToo Movement Impacted Sexual Assault Cases in Oshawa?
The #MeToo movement has helped drive a cultural shift in how people view and talk about sexual assault. Certain myths around sexual assault are no longer believed. We now understand that victims of sexual assault should not be expected to respond in the same ways. Trauma responses are very personalized. We understand that the context of each individual relationship and the power dynamics between the people in them are key factors in how victims respond to sexual assault. We also understand that the sexual history of the victim is not relevant to a sexual assault. It is understood that consent is an event-specific concept that must be acquired each time sexual activity is engaged in.
This shift extends to criminal law in many ways. As mentioned above, s. 276 of the Code prohibits the sexual history of the accused. This is part of a larger trend of criminal procedure beginning to deemphasize the long-believed myths of sexual assault. While there is still much progress to be made, courts are more aware of the hardships faced by victims and have attempted to address them. It is now rare for judges to actively participate in sexual assault cases, as they will rely on the evidence brought before them. Though many cases are made out only on the testimony of the victim, which can make them more difficult to prove.