Tag Archives: articles

Articles on rape myths, etc.

Given the recent awareness of wrongful convictions (triggered by the recent discovery of who the likely perpetrator was in the wrongful conviction case of Guy Morin), I thought I’d have a look at articles about sexual assault.

I’ve recently been able to access criminal law articles through WestLaw. I’m excited to read many articles I’ve been meaning to get my hands on, including (among others) Paciocco’s “The Perils and Potential of Prior Consistent Statements: Let’s Get It Right” (WestLaw). Naturally, I also sought articles on rape myths, s. 276 and other sexual assault laws. I was not disappointed – I found a wealth of articles, many of which were critical of our sexual assault laws (of course, these are not typically cited alongside Craig, Tanovich, etc. by our Supreme Court).

I noticed a 2015 article by Nathan Gorham about R v Schmaltz, 2015 ABCA 4, a case I comment on here and here, “Schmaltz: The need for caution when limiting relevant defence cross-examination in sexual assault cases,” available here, pp. 312-314 (all footnotes omitted):

The decision is controversial. Professor E. Sheehy promptly called for it to be appealed to the Supreme Court in order to clarify the role and responsibility of trial judges to intervene during cross-examination, “for the benefit of women who experience sexual assault,” Professor D. Tanovich argues in a forthcoming paper that the case displays the improper use of stereotypical assumptions regarding sexual assault and a “whack the complainant” strategy. Professor J. Benedet notes that “[a]ll of the lines of questioning at issue in this case have the potential to trade on one or more of these rape myths.”

Professor D. Stuart, on the other hand, points out that “[w]hen a judge asserts that something is a myth or false stereotype the factual inquiry into relevance is pre-empted.” I would agree and add that caution is generally required before intervening in defence cross-examination that is relevant and otherwise admissible out of concern that the questioning might incidentally impact on rejected rape myths. Sexual assault complainants, of course, have a right to be treated with dignity, respect and fairness throughout the criminal process. They must not be demeaned, harassed, humiliated or subjected to illegitimate or irrelevant questioning during cross-examination. That said, Schmaltz is an example of how trial fairness might be undermined through unwarranted concerns regarding rape myths. The defence right to cross-examine “without significant or unwarranted constraint” is protected by the right to full answer and defence and the presumption of innocence under sections 7 and 11(d) of the Charter. The right to cross-examine is particularly important in cases like Schmaltz where credibility is the central issue at trial. Generally speaking, where credibility questions posed of a sexual assault complainant are relevant, but might incidentally and unintentionally impact on rape myths, the cross-examination is presumptively admissible. In Shearing , Justice Binnie, writing for the majority, explained that “[u]nder Seaboyer and Osolin, the default position is that the defence is allowed to proceed with its cross-examination.” Relevant and otherwise admissible defence evidence is only excluded where the prejudice substantially outweighs the probative value.

I also read a 2017 article by Lisa Dufraimont about R. v A.R.D., 2017 ABCA 237 (CanLII) – appeal to SCC dismissed (a case I discuss here and here): “A.R.D.: Complainants’ After-the-Fact Conduct in Sexual Assault Cases” (WestLaw):

The majority judgment in A.R.D. clearly cautions trial judges against relying on rigid expectations about how complainants should behave. This aspect of the judgment is valuable, consistent with other recent appellate decisions, and largely uncontroversial. However, the majority judgment in A.R.D. also holds that the absence of avoidant behaviour by a sexual assault complainant is “logically irrelevant”. Since relevance is a precondition to admissibility, this might suggest that the complainant’s after-the-fact conduct in relation to the accused is inadmissible (even always inadmissible). It might even be taken to suggest that triers of fact are precluded from drawing any inferences favourable to the defence from the after-the-fact conduct of complainants. These suggestions arguably go too far, since they overlook the possibility that, like delays in disclosure, other features of the complainant’s after-the-fact conduct may have legitimate probative value in the factual mosaic of a particular case.

In the context of a criminal justice system premised on the presumption of innocence, we should be wary of suggestions that certain kinds of evidence can ground inferences favourable to the Crown but can never ground inferences favourable to the defence. […]

Also, see Don Stuart: “Barton: Sexual Assault Trials Must be Fair not Fixed”, a 2019 article (WestLaw) critiquing R v Barton, 2017 ABCA 216 (CanLII) (upheld in R. v. Barton, 2019 SCC 33 (CanLII)) – article cited in appellant factum, and note harsh criticism of Fraser CJ and the Alberta Court of Appeal by appellate counsel, despite general approval (and wholesale acceptance by a more-or-less unanimous Supreme Court) of the Court of Appeal’s decision.

The Court’s pro complainant bias

Although the Court of Appeal shows considerable mastery of sexual assault law nuances there are, to this commentator, signs of bias against rights of accused. The Court states that an accused is entitled to a fair not a fixed trial. At points I see the Court as trying to fix and strengthen laws to make sexual assault convictions more likely. I offer some examples. […]

Recall too that our rape shield laws since Seaboyer are unique in applying equally to prior sexual conduct with the accused. This is a principle that Professor Galvin, the author otherwise relied on in Seaboyer, did not favour, has been rejected by the House of Lords in R. v. A. and is not the law in the United States. That leaves conscientious and fair-minded Canadian judges in a quandary where prior sexual history with the accused seems obviously probative […]

In a 2009 paper by Don Stuart, “Twin Myth Hypotheses in Rape Shield Laws are Too Rigid and Darrach is Unclear” (available here, pp. 48-51):

Unlike any country in the Western world, this protection applies, ever since a further assertion by McLachlin J. in Seaboyer, equally to prior sexual history with the accused. […]

Admitting evidence is “part of the context” seems very like the “part of the narrative” ruse sometimes resorted to bypass unwelcome evidentiary rules. The real problem is that the twin myth hypotheses are too rigid. Professor David Paciocco suggests judges read them down to forbid only general stereotypical inferences and to allow inferences specific to the case. This was the approach taken by Fuerst J. in Temertzoglou. This solution is rather like that adopted in the Supreme Court in R. v. Handy for similar fact evidence: pattern evidence of the accused can exceptionally be admitted as evidence of specific rather than general propensity. The Paciocco analysis found favour in lower courts but was not squarely addressed by the Supreme Court in Darrach. The Supreme Court further speaks of Parliament having clarified that the sexual nature of the previous activity can never be referred to. This seems bizarre. It is only the sexual nature of the prior relationship evidence that could give it any probative force.

In R. v. A.(no.2) the House of Lords somehow read Darrach as not applying rape shield principles equally to prior sexual history with the accused. The Law Lords unanimously declared that new U.K. rape shield laws offended fair trial rights in the European Convention for the Protection of Human Rights and Fundamental Freedoms in applying with equal force to prior sexual history with the accused. Lord Steyn, for example reasoned as follows:

  • As a matter of common sense, a prior sexual relationship between the complainant and the accused may, depending on the circumstances, be relevant to the issue of consent. It is a species of prospectant evidence which may throw light on the complainant’s state of mind. It cannot, of course, prove that she consented on the occasion in question. Relevancy and sufficiency are different things…It is true that each decision to engage in sexual activity is always made afresh. On the other hand, the mind does not usually blot out all memories. What one has engaged on in the past may influence what choice one makes on a future occasion. Accordingly, a prior relationship between a complainant and an accused is sometimes relevant to what decision was made on the particular occasion.

Rape shield law protection in the United States presently do not extend to prior sexual history with the accused. Following the Kobe Bryant rape trial acquittal Dean Michelle Anderson has called for restrictions on such evidence. But she accepts it as a given that

  • prior negotiations between the complainant and the defendant regarding the specific acts at issue or customs and practices about those acts should be admissible. Those negotiations, customs, and practices between the parties reveal their legitimate expectations on the incident in question.

Until the Supreme Court speaks more clearly on this issue my sympathy is with trial judges attempting to ensure that sexual assault trials are fair to both the accused and the accuser.

R. v. Barton, 2019 SCC 33 (CanLII) is also critiqued by Lisa Dufraimont in a 2019 article entitled “R. v. Barton: Progress on Myths and Stereotypes in Sexual Assault” (WestLaw) as follows:

Remaining Silent on Permissible Inferences

The Court’s focus in Barton on specifying prohibited inferences stands in contrast to its relative silence on the question of evidence and inferences permissible to assist the defence. In the context of the defence of mistaken belief in communicated consent, Moldaver J. provided a lengthy explanation of situations where the defence does not arise but offered only a brief discussion of evidence that could support the defence. With respect to the evidence of the deceased’s prior sexual activity, Moldaver J. explicitly left the question of admissibility to be decided by the trial judge at the new trial. He explained that because the mandatory procedural requirements were not met at the original trial, “it would be both unwise and practically unworkable for this Court to speculate about what prior sexual activity evidence would have been admitted, and for what purposes, had a s. 276 hearing been held.” Consequently, while the judgment contains a detailed analysis of the impermissible uses of sexual history evidence, it includes almost no discussion of the kinds of inferences that can legitimately be drawn from evidence of a complainant’s other sexual activity. The overall effect is arguably unbalanced; indeed, a casual observer might come away from reading Barton with the impression that no evidence of the complainant’s other sexual activity could be admitted for any legitimate purpose, either in general or in the specific case. This sense of imbalance is unfortunate in the context of s. 276, where the Supreme Court has recognized that admitting the evidence is sometimes necessary to uphold the accused’s constitutional right to full answer and defence.

Moreover, by failing to discuss the permissible lines of argument for the defence, the Supreme Court missed an opportunity to provide guidance on what is arguably the most challenging part of eliminating myths and stereotypes from sexual assault trials: separating the permissible and impermissible uses of the same evidence. Examples of this challenge abound. For instance, as Moldaver J. noted in Barton, there is no defence of “implied consent” and consent cannot be “implied by the circumstances” where the complainant did not voluntarily agree, in her mind, to the sexual touching at the time that it occurred. However, it would be a mistake to conclude that the “circumstances” are irrelevant to the factual question of consent, or that the trier of fact is bound to accept a sexual assault complainant’s testimonial claim of non-consent. As the Supreme Court recognized R. v. Ewanchuk,

  • While the complainant’s testimony is the only source of direct evidence as to her state of mind, credibility must still be assessed by the trial judge, or jury, in light of all the evidence. It is open to the accused to claim that the complainant’s words and actions, before and during the incident, raise a reasonable doubt against her assertion that she, in her mind, did not want the sexual touching to take place.

Thus, evidence of the circumstances surrounding an alleged sexual assault can ground both permissible and impermissible inferences on the issue of consent. In this context and in sexual assault cases more broadly, trial judges would benefit from further appellate guidance on how to distinguish legitimate lines of reasoning from prohibited myths and stereotypes.

For a real “oldie-but goodie” see “From the Far West: The Erosion of the Presumption of Innocence”, a 1989 article in For the Defence, by Richard C.C. Peck, Q.C. (Vol. 10, no. 4, p. 11, December, 1989 – QuickLaw):

Included in the presumption of innocence is the necessity that the trial of the accused be one that is manifestly fair. Yet is it fair to put someone on trial for an offence where the cross-examination of the chief witness for the Crown is greatly restricted? The is precisely the result of s. 276 of the Criminal Code. Proponents of this legislation argue that a complainant’s prior sexual conduct is irrelevant to the charge before the Court and that cross-examination in this area amounts to nothing more than a scurrilous attack on the complainant’s character aimed at demeaning the witness in the eyes of the trier of fact for the sole purpose of reducing his or her credibility. It is conceded that in a small minority of cases this is so, but the unfortunate consequences of this legislation are such as to effectively prohibit an accused from cross-examining where there is reason to believe that a valid defence may arise from the cross-examination. Although the Criminal Code creates exceptions to this limitation on cross-examination these exceptions are seldom permitted. In the result the legislation has created an evil greater than the cure it was aimed at. It has also had the effect of creating a special class of witness subject to protections from cross-examination not enjoyed by other witnesses.

Put simply, we can — and must — do better. With forthcoming reasons expected from our Supreme Court in Her Majesty the Queen v. G.F., et al., 2020 CanLII 227 (SCC), perhaps it can show us all that it is capable of more than just dangerous rhetoric when it comes to sexual assault law.

How to find law articles with *reduced* blood, sweat and tears

I graduated from University of Calgary’s law school in 2016 with a lot of debt, an excellent resume and hardly any articling interviews. In fact, I can count on one hand the number of summer and articling interviews I had during my three years of law school. Part of the reason for this was my poor grades.

I managed to find an articling position approximately 9 months after graduation, and finally found one where I was happy (in terms of the kind of work I was doing) 9 months after that. I have now finished my articles and have been called to the bar. I want to share some of my experiences and advice for those who have struggled with, or are currently struggling with, finding articles and summer employment.

Figure out what you want to do – the earlier the better

It is incredibly important to know what area of law you want to work in. Law school is not good at preparing students for the workforce, in that the academic environment and multidisciplinary environment are not always relevant to the practice of law. It’s important that you get a sense early on of what you do and do not want to practice (clinical courses and experiences can help with this), and focus on those kinds of firms. It is impractical and frustrating to target every firm in your province when you can focus your efforts on a much smaller number of firms that actually interest you.

Network really hard – in person

Much has been said about networking. I think it is a critical part of finding work. Most of my efforts revolved around cold-calling and cold-emailing. Needless to say, there were very few positive results from this, and it involved a lot of effort and time. A much more efficient way to job-hunt is to meet people that practice in areas in which you want to practice, spend some time with them, get to know them, and ask them about their work. You can also mention that you’re looking for summer/articling employment, but don’t expect anything from them in terms of employment. Possibly they’ll have an opportunity for you; more likely they won’t, but they may still know of others who may need help, and they can introduce you to others who do or do not need help. This way, you’re meeting people practicing in your areas, establishing good connections with them, and possibly even getting a job opportunity from them or someone they recommend. You can’t lose.

I know this can be draining and difficult, but it’s far more efficient and rewarding than calling and emailing. Of course, you can do the odd phone call to set up a meeting, but focus on in-person meetings. Showing up unannounced at an office is far better than an email which likely never gets seen or returned. I read Take Aim: How to Get Noticed and Hired in Tough Times by Joy Cohen, and found it really helpful in providing networking and job search advice.

Another good way to meet lawyers is at networking meetings, such as CBA sessions. These are rather hit-and-miss, but attending events and volunteering can be a good way to meet people. Also, ask people to put your resume on SoloNet or similar listservs that have a wide viewership. Remember, you have a lot of value to offer many firms, and you will find the firm that will appreciate your skills. It will take time and effort, but it’s certainly worth it.

Don’t be discouraged by negative experiences you have. There will be many lawyers that promise to help you and don’t, or promise to follow up on your email but don’t, etc. Focus on the positive. There are many lawyers that are eager and willing to help you – either by providing a listening ear, giving helpful tips regarding potential employers, and more. Find them.

Refuse unpaid work

I understand there are some firms that offer unpaid work. I would recommend against firms offering unpaid work, or anyone accepting it. I understand people can be desperate, but I think this is a little extreme. If the firm values your work so poorly that it refuses to pay you for it, I don’t see how there’s any potential for it to be a good experience for the student.

January 15, 2021 edit: I should add that partial articles may also be very helpful, and I used these. If your provincial law society allows it (Alberta does), it may be a lot easier to “sell” an articling principal on a commitment of – say – 3 months, rather than the full year (or whatever length of term is required). Once you get your foot in the door, it gets a lot easier to find the next position.