Canada’s “rape shield” law, section 276 of the criminal code, was created in 1992 to preclude lawyers from using a person’s sexual history in an effort to draw inferences that the woman consented to the sexual acts.
But this is not always the case.
Earlier this week in the sexual assault trial of Jian Ghomeshi, the presiding judge allowed Ghomeshi’s lawyer to cross-examine one of three complainants about her last-minute disclosure that after the former radio host allegedly assaulted her, she invited him to her home and consensually gave him a “handjob.”
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The complainant, who is subject to a publication ban, told the court she never had intercourse with Ghomeshi, and that was why she told police she “never had sex” with him.
John Rosen, a Toronto criminal defence lawyer, said in the context of this witness, the rape shield law does not apply.
“I don’t think they relied on her past sexual history at all,” said Rosen. “The only thing that was asked about was the relationship between [Ghomeshi and the witness] in terms of circumstances leading up to the incident and after the incident.”
Rosen said while the section was created to prevent a person’s sexual history being used to draw inferences about them, in the Ghomeshi trial the cross-examination was relevant.
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“That is between the two of them,” he said. “It is relevant to the issue of their relationship.”
John Navarrete, a Toronto criminal lawyer, said the tactics of Henein are typical of a defence attorney.
“I haven’t seen her ask something that I thought was not relevant,” said Navarrete, who has been an observer in court for the case. “As a criminal defence lawyer we have one way of thinking, and that is ‘is her conduct after the [alleged] sexual assault, does that seem normal or the way a normal person would behave?’”
“I’ve been reading more and we may have it wrong, that this behaviour may be typical.”
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The actions of the three witnesses have been picked apart by defence lawyer Marie Henein during cross-examination. Last week, Henein grilled complainant Lucy DeCoutere around why she sent a “love letter” to a man she claims slapped and choked her. DeCoutere said she didn’t “remember writing it,” which is why she didn’t tell the Crown or police about it in her statements.
Global News reported on the reasons people who’ve suffered emotional, physical or sexual abuse might stay in contact with an abusive partner.
Navarrete said looking at the overall case, media attention aside, the Ghomeshi trial is a “typical” sexual assault trial.