The laws of evidence in sexual assault cases are very strict, and great protections are given to complainants in sexual assault cases. If accused of a sexual assault, the law prohibits you from introducing the complainant’s previous sexual history. If the complainant’s sexual history relates to a core tenet of the Crown’s case and on which innocence depends, an accused can seek its admissions by filing what’s known as a s. 276 Criminal Code application.
What is a Rape Shield Law?
Parliament introduced this legislation to prohibit the Twin Myths inference, that (1) a complainant’s prior sexual activity implies that they would be the type to consent, and/or (2) that their prior sexual activity renders their present evidence less worthy of belief.
Can an accused ever lead evidence of a complainant’s Previous Sexual Activity?
Under s. 276 of the Criminal Code, an accused to apply to the court to introduce this evidence. This application requires an accused to outline the specifics of the sexual activity and set out its relevance to the trial. Evidence may be lead if the sexual activity is found to be relevant to core issues in the Crown’s case and reliance on it does not engage the twin myths.
The following are just some examples of when one’s prior sexual activity can be lead:
- Credibility: An accused may be able to introduce evidence of prior sexual activity to rebut a complainant’s denial of the same. This evidence can challenge their credibility and reliability
- Honest but Mistaken Belief in Consent: To show that there was an honestly held belief in consent, previous sexual encounters may be relevant to explain why that belief existed.
Each s. 276 application will be decided on a case-by-case basis.
How to defend a sexual assault charge
Sexual assault trials can be complex and challenging to navigate. The evidentiary issues are complicated and difficult to understand. Hiring counsel of choice is the first step towards fighting these serious allegations, and a lawyer who is trained in this area will be the difference between an acquittal and finding of guilt.