Let the Complainant-Whacking Commence
Correction: This article was intended for publication in Volume 89, Issue 4.
On 2 October 2015, Jian Ghomeshi, flanked by his lawyers and surrounded by police, entered Old City Hall where he plead not guilty to four counts of sexual assault and one count of choking.
The plea should come as no surprise; Ghomeshi published a Facebook post shortly after the first allegations surfaced. The gist of the post was a self-serving attack on the credibility of the women who had come forward accusing him of sexual assault. BDSM. Rough consensual sex, he said, not sexual assault.
In criminal trials, the odds are generally stacked against the accused. Facing the full force of the state—often unrepresented or underrepresented, often poor, and often marginalized—the accused is fighting for her or his liberty. Meanwhile, the Crown has access to all the evidence and can marshal the full resources of the state to prosecute the accused.
In sexual assault cases, however, the accused is probably not the most vulnerable person in the courtroom. The public and even judges still fall prey to rape mythology. We are still far too willing to question what women were wearing and how many people they slept with, and are all too eager to assume that they are lying about being sexually assaulted.
Ghomeshi is also represented by Marie Heinen. For the uninitiated, Henein is a brilliant criminal defence attorney known for her fierce and, some say, ruthless battle tactics. She is an Osgoode alumna and she represented the Feminist Coalition pro bono in Bedford as well as Jane Doe in her suit against the Toronto Police. She also represented Michael Bryant and is currently representing Dean Del Mastro. Among her other clients are a string of high profile defendants in sexual assault cases, many of whom were acquitted.
So of course Ghomeshi plead not guilty.
On the same day Ghomeshi entered his plea, his lawyers ran a series of pre-trial motions. These motions are designed to get the judge to rule, among other things, on the admissibility of certain types of evidence. Here, the sensitive nature of the evidence meant that the press and public were barred from the courtroom—and rightfully so. The judge will rule on these motions before the trial begins on 1 February 2016.
Until then, here is an educated guess at what transpired when the judge closed the courtroom doors.
There are several evidentiary motions lawyers can make at pre-trial hearings. In sexual assault cases, two types are among the most prevalent—and problematic: motions seeking the production of a complainant’s therapeutic records and motions seeking the admission of a complainant’s prior sexual history (both are called “276 applications”).
Heinen, as a panelist in a Law Society workshop, told criminal defence attorneys to bring applications to “introduce all this otherwise inadmissible evidence,” especially in judge-alone trials,“and if it’s excluded, well, oh well, the judge has heard it.” She said that lawyers should consider this tactic when their basis for bringing the applications is “not the strongest,” and went on to say, somewhat cheekily, that she was “confident that the judge would be able to disabuse his or her mind of the fact that she [the complainant] has a very extensive and lude prior sexual history.” But that begs the question—what would be the point in bringing a baseless application if one were confident that the judge could disabuse her or his mind of such things?
Seeking an order for the production of therapeutic records has two effects. First, these orders usually have a chilling effect on complainants. Therapeutic records are incredibly personal and what is discussed with a mental health professional are usually the type of things that are deeply embarrassing and difficult for people to deal with. Complainants, like the rest of us, would hardly want those records to be read out in court and potentially become part of the public record. If the complainant decides to stick it out, the records still allow the defence to paint the complainant as a hysterical and unstable person. Our society still stigmatizes mental health issues and those who seek professional help are often seen as unstable. Defence attorneys exploit this and often use these records to suggest that a complainant is merely an overly emotional person who misunderstood the situation or perhaps just a “jilted ex”—sound familiar?
Similarly, seeking to adduce evidence of prior sexual history is often aimed at intimidating and silencing complainants who want to keep their private life private. It is also often used to paint the complainant as a “slut,” who was either more likely to consent or less credible as a witness.
When the defence aggressively attacks a complainant on the stand, makes submissions on what the complainant was wearing, suggests that the complainant was asking for it, or seeks the production of the complainant’s therapeutic records or admission of her or his sexual history, it is called “whacking the complainant.”
“Whacking is aimed at intimidating and silencing complainants and securing acquittals, usually for factually guilty clients, based on judges and juries’ predisposal to accept rape myths as true. Noted defence attorney and criminal law professor David Tanovich has written extensively on the topic. He suggests that whackingis unethical and incorrect at law.
To be sure, an accused has the Charter-protected right to make full answer and defence and these facts can be relevant in some cases. For example, where there existed a pattern in the manner of communicating consent, prior sexual history with the accused may be relevant. Where the complainant was sexually assaulted in the past and now experiences flashbacks, her or his therapeutic records may be relevant if the actual occurrence of the act is at issue.
Where the defence is based solely on rape myths, however, the countervailing interest of preventing the conviction of an innocent person does not exist and defence lawyers should think twice about trying to adduce this type of evidence.
The Supreme Court in Seaboyer noted that these tactics give rise to the “twin myths”—namely that a complainant who has had sex before is more likely to have consented to the act in question, and that women who are sexually active are less credible), and that using evidence for this purpose is not permitted. Following Seaboyer, Parliament enacted section 276 of the Criminal Code (hence the term “276 application”) that regulates the admission of such evidence and prohibits its use in substantiating the twin myths. The provisions were later upheld in Darrach.
The Law Society of Upper Canada Rules of Professional Conduct prohibit misstatements of the law and require lawyers to be civil to all parties. They also make clear that advocates not only have duties to their clients but also to the court, the profession, and the public writ large. Moreover, the Rules also emphasize a commitment to the principles of equality.
Any frivolous motions, therefore, are not only unprofessional and unethical—not to mention morally problematic—but any reliance on evidence elicited because of them also amounts to an error of law.
It is possible, and quite likely, that Heinen sought the production of complainants’ therapeutic records and/or the admission of their prior sexual history with Ghomeshi (and perhaps even people other than Ghomeshi). She may have suggested that there is likely to be evidence in the therapeutic records that the complainants are just jilted exes or that their sexual histories may include evidence that they had communicated their consent in a similar manner on previous occasions where BDSM was part of the sexual encounter. Unless she can prove probity and relevance, this evidence should not be admitted.
1 February is just around the corner, so we will soon learn whether Heinen took her own advice.