Introduction
It is generally accepted that prosecutions for rape and similar sexual offences present complex difficulties. Where, as is often the case, the core issue centres on consent, the complainant will find herself the focus of critical attention to a degree that is unparalleled in the trial of most other criminal offences. In some cases, the most intimate aspects of her private life, including her sexual history, can be scrutinised in excruciating detail as if she was on trial. She may also be exposed to the prejudicial effects of ‘rape myths’ operating on the minds of jurors so that, for example, evidence of previous consensual sexual activity in similar circumstances will be interpreted as confirmation of the accused’s defence that the complainant was consenting on the occasion that gave rise to the charge. Equally she may suffer from a related rape myth that her sexual history with multiple partners suggests that she is not worthy of belief or deserving of the protection of the law when she complains of rape. Not only have these realities contributed to a high rate of attrition for complainants in prosecutions, but it is also believed that they have deterred very large numbers of victims from coming forward.
On the other hand, there is a concern that lowering standard due process protections for the accused in rape cases exposes the accused unfairly to the risk of conviction for a most heinous criminal offence. This risk can be acute where there is contemporary, or a history of, consensual sexual activity between the parties, and the conflict at the heart of the trial pitches the word of the complainant against that of the accused with respect to the former’s consent. To explain his actions and support his version of events, the accused will want to show how the disputed sexual encounter was consistent with their consensual sexual activity in the past. As noted above, however, admitting such evidence can also be seriously detrimental to the complainant and rape victims generally.
In attempting to strike an appropriate balance between the rights of complainants and accused in these situations, many jurisdictions have introduced provisions clarifying the meaning of consent and/or imposing restrictions on the admissibility of evidence on the complainant’s sexual history. So, for example, the meaning of consent in sexual assault cases has been clarified to establish unequivocally that even within the scope of an ongoing sexual relationship, consent cannot be assumed. It must be communicated affirmatively for each and every sexual act. To put it another way, “.. not only does no mean no, but only yes means yes.” An example of restrictions on the admissibility of evidence of the complainant’s sexual history is to be found in section 276 of the Canadian Criminal Code. A few days ago, it received a robust interpretation by a majority of six to one in the Canadian Supreme Court in R v Goldfinch [2019] SCC 38.
The facts
The accused and the complainant had been in a permanent relationship. Shortly after it broke up, they resumed a friendship which included having sex on an occasional basis. Both parties agreed that their relationship could be described as “friends with benefits”. On the occasion that gave rise to the prosecution, they had gone to the accused’s flat where they had sex. The accused claimed that it was entirely consensual and followed the pattern that had become established between them. While the complainant accepted that they often had sex in such circumstances, she claimed that, on this occasion, the accused proceeded to have sex with her against her expressed wish not to have sex.
At the trial, the judge ruled that evidence could be given of the “friends with benefits” relationship between the parties. She accepted that this was necessary to provide “context” that would enable the jury to appreciate and interpret the events, and some of the actions and words of the accused, leading to the alleged rape. Keeping such evidence from the jury would harm the accused’s right to make a full defence, while allowing it to be introduced would not prejudice the complainant’s personal dignity, right to privacy or personal security. The judge made it clear that the evidence should not extend to details and frequency of their sexual encounters. In the event, evidence of the latter was given to the jury, essentially as a result of the strategy adopted by the prosecution.
In her direction to the jury, the judge made it clear that the evidence of the complainant’s sexual history with the accused was for contextual understanding only. It must not be used to help decide whether the complainant is more likely to have consented on this occasion, or to decide whether she is less likely to be reliable or believable in this case. The jury acquitted the accused of the rape. The prosecution appealed on the basis that it was a breach of s.276 to allow evidence of the complainant’s sexual history with the accused (“friends with benefits”) to be introduced to the jury. The appeal made its way to the Supreme Court where the acquittal was set aside and a new trial ordered.
Section 276
In Goldfinch the Supreme Court explained that section 276 aims to protect the integrity of the trial process by striking a balance between the dignity and privacy of complainants and the right of the accused to make full answer and defence to the charge. It is divided into four subsections. The first of these, s.276(1), imposes an absolute bar on the admissibility of evidence that the complainant has engaged in sexual activity, whether with the accused or any other person, to support an inference that by reason of the sexual nature of that activity the complainant is (a) more likely to have consented to the sexual activity that forms the subject-matter of the charge, or (b) is less worthy of belief.
Section 276(1) is clearly aimed at countering the effects of the two rape myths associated with the complainant’s sexual history. It imposes an absolute bar on evidence of the sexual nature of a relationship involving the complainant if it is being introduced to infer that she is more likely to have consented or is less worthy of belief in the instant case. Presumably, although it is not entirely clear from the wording of s.276, the bar might be avoided by the accused introducing the evidence for another purpose, even if an incidental effect is to raise an inference that the complainant is more likely to have consented or is less worthy of belief. The second subsection, however, imposes restrictions on the evidence of the complainant’s sexual activity that the accused can introduce for any other reason at the trial.
Section 276(2) stipulates that the accused cannot introduce evidence that the complainant has engaged in sexual activity (other than that which forms the subject matter of the charge) with the accused or any other person, unless the judge determines that the evidence: (a) is of specific instances of sexual activity; (b) is relevant to an issue at the trial; and (c) has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice. If the accused fails to persuade the judge on these matters, the evidence of the sexual relationship between him and the complainant will be inadmissible. In other words, s.276(2) imposes a presumptive bar on the admissibility of evidence of the complainant’s sexual history where that evidence might otherwise have avoided the absolute bar in s.276(1). To overcome the presumptive bar, however, the accused will have to show that the evidence satisfies the three specified criteria.
The third subsection, s.276(3), sets out a list of matters that the judge must take into account in determining whether the evidence satisfies the three criteria. They broadly reflect an attempt to maintain a balance between the right of the accused to make a full and proper defence and the need to ensure that the evidence does not suppress the truth or operate to discourage the reporting of sexual offences. The specified matters are: the interests of justice (including the right of the accused to make a full answer and defence); society’s interest in encouraging the reporting of sexual offences; whether there is a reasonable prospect that the evidence will assist in arriving at a just determination in the case; the need to remove from the fact-finding process any discriminatory belief or bias; the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility in the jury; the potential prejudice to the complainant’s personal dignity and right of privacy; the right of the complainant and of every individual to personal security and to the full protection and benefit of the law; and any other factor that the judge considers relevant.
Reasoning
The Supreme Court majority noted that the mischief Parliament intended to address in first enacting s.276 almost 40 years ago is very much with us today. In particular, they observed that sexual assault is still the most highly gendered and unreported crime. Moreover, the “harm caused by sexual assault, and society’s biased reactions to that harm, are not relics of a bygone era”. It was against that backdrop that the majority proceeded to interpret s.276 and apply it to the facts in Goldfinch.
The majority had no hesitation in finding that the obvious implication of the evidence of the ongoing sexual relationship between the complainant and the accused was that because the former had consented to sex with the latter in the past in similar circumstances, it was more likely that she consented on the night in question. In other words, evidence of the nature of the relationship raised an inference of consent consistent with one of the rape myths, contrary to s.276(1). Accordingly, the evidence was inadmissible unless the accused could establish some other purpose that satisfied the requirements of s.276(2).
The majority considered that s.276(2) must be interpreted together with s.276(1). The accused must propose a use for the evidence that does not invoke the rape myth inferences identified in s.276(1). It will not be sufficient, therefore, merely to present the evidence as relevant to context, narrative or credibility, especially where these operate as a cover for the prohibited rape myth inferences. The accused must provide detailed particulars that will allow the judge to engage meaningfully with the three criteria in s.276(2) in accordance with the matters listed in the s.276(3).
The majority were of the view that the first of the criteria, specific instances of sexual activity, must be interpreted in light of the scheme and its broader purposes. It is intended to avoid aimless or sweeping inquiries into the complainant’s previous sexual history. The requirement for specificity in this case could be satisfied by evidence that the relationship was one of “friends with benefits” as that inherently encompasses specific instances of sexual activity. Requiring further details would unnecessarily invade the complainant’s privacy, thereby defeating an important objective of s.276.
The second requirement is that the evidence of sexual history must be relevant to an issue at the trial (apart from either of the two rape myths). The majority cautioned that arguments for relevance must be scrutinised to ensure that “context” is not being used as a cover the rape myths. They further emphasised that, where the relationship is defined as including sexual activity, the relevance of the sexual nature of the relationship to an issue at the trial must be identified with precision.
In Goldfinch, the accused argued that evidence of the sexual nature of their relationship was necessary to provide context that the jury would need to appreciate the coherence of his account and, by extension, his credibility. While the majority accepted that there may be situations where such evidence is necessary, they must not lead the jury in to rape myth reasoning. General arguments that the sexual nature of a relationship is relevant to context, narrative or credibility will not satisfy the requirements of s.276(2). In the majority’s view the accused did not manage to identify specific issues that made the sexual nature of their relationship critical to the jury’s appreciation of his defence.
The third requirement entails balancing the probative value of the evidence against the risk of prejudicing the proper administration of justice. The majority emphasised that each of the two elements must receive heightened attention given the serious ramifications that use of the evidence can have for all parties. Balancing the factors listed in s.276(3) in this exercise will depend on the nature of the evidence being introduced and the factual matrix of the individual case. However, having found that the “friends with benefits” evidence was not relevant to an issue at the trial, the majority had no difficulty in concluding that it had no probative value. In their view, the evidence was relevant only to suggest that the complainant was more likely to have consented because she had done so in the past. Accordingly, the evidence did not satisfy the s.276(2) criteria and was prohibited by s.276(1).
The majority proceeded to quash the acquittal and order a re-trial as the admission of evidence of the sexual nature of the relationship was an error of law which might reasonably be thought to have had a material bearing on the acquittal. It is worth noting, however, that much of the evidence of the sexual nature of the relationship was actually led by the prosecution. Although s.276 refers only to evidence introduced by the accused, the majority held, citing a recent decision of the Court in R v Barton, that prosecution-led evidence is governed by the same principles. They also said that the prosecution would not have led the evidence but for the trial judge’s erroneous direction permitting the admission of evidence that the relationship was one of friends with benefits”.
Dissent
The dissenting judge departed from the majority essentially on the application of s.276 to the facts of the instant case. The dissentient considered that the trial judge had dealt appropriately with the evidence of the “friends with benefits” relationship by allowing it to be introduced to inform the jury how the parties knew each other. The associated risks that s.276 were intended to guard against were minimised by a clear instruction to the parties that it could not extend to the particulars or frequency of the sexual relations, and clear instructions to the jury on the permissible and impermissible use of the evidence. The dissenting judge felt that to omit the evidence of a “friends with benefits” relationship would leave the jury with a distorted representation of the factual circumstances surrounding the alleged rape. The dissentient also considered that ordering a new trial was fundamentally unfair as the prosecution were effectively trying to have it both ways. On the one hand they actually led and relied on most of the evidence of the past sexual relationship between the parties to advance their case. When the jury verdict went against them, however, they argued that the sexual history evidence should not have been admitted and that it must have infected the jury decision.
Comment
The facts of the Goldfinch case highlight quite vividly the strength of the conflicting interests that so frequently permeate rape prosecutions concerning a complainant and accused who were parties to a sexual relationship at the time of the alleged rape. In some respects, s.276 is attempting to reconcile the irreconcilable. Imposing restrictions on the admissibility of evidence of the complainant’s sexual history (albeit for very legitimate reasons), carries with it the risk of weakening the capacity of the accused to mount a full defence. It will rarely be possible to satisfy both interests absolutely in individual cases. Perhaps the most that can be hoped for is a balance that confines the use of evidence of past sexual history to that which is no more than necessary (if at all) to enable an accused present his account of events on the occasion in question in a manner that is complete, coherent and comprehensible to the jury. It is submitted, however, that there is a sense in which the majority decision in Goldfinch may have set the bar too high for the accused on the facts of this case in their understandable concern to prevent rape myths continuing to affect the trial under the guise of context.
In their “final comments” on the interpretation and application of s.276, the majority said that where there is a risk that the jury may improperly speculate about the complainant’s past sexual activity, it may be helpful to give an instruction (presumably to counsel) that the jury must not hear any evidence on whether the relationship included a sexual aspect. The instruction should explain that:
“.. the details of previous sexual interactions are simply not relevant to the determination of whether the complainant consented to the act in question. No means no, and only yes means yes: even in the context of an established relationship, even part way through a sexual encounter, and even if the act is one the complainant has routinely consented to in the past. Giving such an instruction would both reinforce the principles which guide a proper analysis of consent and mitigate the risk that jurors will rely on their own conceptions of what sexual activity is “typical” in a given relationship.”
While the substance of the instruction may be appropriate, and even necessary, to counter the insidious effects of rape myths, it may be questioned whether it should be delivered in such blunt terms. There will often be circumstances in which the accused’s account of events will be distorted in the absence of evidence that carries the risk of improper jury speculation about the complainant’s past sexual activity. In such cases, it may be possible to counter that risk by measures short of excluding the evidence altogether. Even in Goldfinch, two of the majority judges (as well as the dissentient judge) felt that the evidence of the “friends with privileges” relationship could be relevant to an issue in the accused’s defence quite separate from an inference of consent arising from the sexual nature of the relationship. Striking a fair and appropriate balance in such cases will require some very careful engineering.
Quite separately, it is disturbing that an acquittal was quashed and a new trial ordered on appeal by the prosecution, even though the appeal was based essentially on the unlawful admission of evidence that the prosecution had introduced and relied on (unsuccessfully) to advance its case at first instance. Discussion of the uncomfortable issues raised by such a strategy and outcome will have to await another occasion.
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