As we are seeing more and more in the media (mainstream and social), many sex crime claims based solely on uncorroborated verbal testimony actually find their way into courtrooms. These types of claims seem to proceed through the legal system as believed to be true, unless proven otherwise. The removal of the corroboration requirement in the 1980s is mainly what paved the way to allow such flimsy claims to waste government resources and livelihoods of the innocent accused in Canadian courtrooms. When an innocent man (or woman) is accused of such a crime with no supporting evidence, it becomes a classic game of clue for the innocent accused to first figure why the accuser (male or female) would make such a claim. Although the general belief is that the prosecutor bears the burden of proof to prove their case
against the defendant claiming innocence, it doesn't mean the burden still hasn't shifted underhandedly to the accused to prove the accusation as wrong. Nor has it stopped imposed defence restrictions from making it extremely difficult for the defendant to follow clues that may lead to the accuser's motive. In turn being able to create a convincing reasonable doubt of their guilt before the judge or jury.
The game of Clue, the Classic Mystery Game, is described as following in this excerpt from Hasbro's product description:
One murder…6 suspects. In this suspenseful Clue game, players have to find out who's responsible for murdering Mr. Boddy of Tudor Mansion in his own home... Eliminate information throughout the game in this classic whodunit. The player who correctly accuses Who, What, and Where wins!
While detecting who killed Mr. Boddy isn't quite the same as defending against baseless sex crime charges, the act of having to defend yourself against a wrongful accusation is in principle, similar; using clues to eliminate information to figure out what motivated the accuser in order to be able to prove yourself innocent. A motive is not always clear from the get go. It has been sparsely researched and documented that a myriad of irrational motives can and do exist. One clue can lead to the next, eliminate a theory, and eventually lead you to the most likely and provable theory that might even lead to a recantation. For a reasonable and logical person, being forced to look for an irrational motive can be a distressful task without having access to examine all available potential clues. This is equally true for judges, juries and the innocent accused.
Enter the legislated so-called 'rape shield' laws. They were incrementally put in place as a consequence of the repealed corroboration requirement and the repealed statute of limitations to make it nearly impossible for the detective (or defendant) to be able to move from one clue to the next in order to solve the “why would she/he accuse you of this?” mystery. For an innocent defendant to be able to clear their name they effectively have to prove their own innocence and the only way they can do this is by reading the accuser's recorded police statement, look for clues in that statement to develop theories for arguments, and then examine whether or not any clue can prove or disprove a theory. This is where the process of elimination comes in handy. (Do they still teach this basic problem solving method in schools?)
Where the rape shield laws, namely the s. 276.1-.3 and s. 278.1-.9 applications, end up standing in the way with basic problem solving techniques is that it disallows the defendant to freely examine a clue they may know exists by forcing them to ask the trial judge for a procedural hearing to determine whether or not the defendant can examine the clue they think may have potential to prove or disprove a theory. Such a clue would consist of private records such as therapy records, sexual history, job retention history, previous claim history, criminal history, text messages, medical records, etc. This type of hearing hands the power to the judge to examine the clue themselves and then make their own determination on the admissibility of it. But here's the catch: when the defence applies for the judge to do so, they have to present their theory in detail to both the judge and prosecutor beforehand on what they expect the clue to reveal, and the relevance of it to the accuser's claim, in order to make the case for the judge ultimately to:
a) agree to review the clue,
b) decide if it's admissible as evidence in terms of probative value and not prejudiced against the accuser.
At this point the defence is basically guessing and hoping they have nailed their theory, while the prosecutor has just gained an advantage by knowing what the defence does or doesn't know.
The defence needs to examine the clue in order to be able to eliminate their theory or advance it during cross-examination at trial. So if the judge chooses to examine the clue, but finds it doesn't match the specific theory presented by the defence, then the judge has to deny its admissibility and reseal the clue in the confidential envelope, never to be seen by the defence. Also, the prosecution is now advantaged by knowing the advantage/disadvantage to the defence. But what the judge doesn't reveal is whether something in that clue might point to another theory that could have helped the defence create a reasonable doubt in terms of innocence. Once this clue's admissibility is ultimately denied, the defence team would have to regroup and look for another chance to pin the tail on the donkey with the correct theory in a new application hearing. But guess what? Each 276 or 278 application hearing costs thousands of dollars and it's likely after the first or second attempt the defendant can no longer afford to keep asking for a chance to examine a potentially fruitful clue. Legal Aid doesn't cover this extra cost, so the defence attorney is not going to spend any further unbillable time after the first failed attempt at pin the tail on the donkey. The prosecution again finds themselves at an advantage.
We've established the basic premise of the process of elimination being used to solve a mystery as in the classic game of Clue. We should be shocked by the fact that there are legislated laws in place that not only demand permission for a third-party (the trial judge) to examine a clue under strict criteria, but that they also can deny the innocent accused the opportunity to examine unexpected, potentially helpful clues preventing them from being able to solve the mystery of why they are being wrongly accused of something they did not do. All the while all advantages go to the prosecution. Keep in mind that both the judges and prosecutors are paid a handsome salary by the public's tax dollars regardless of how much time they spend on a case, while a defence attorney is paid by the hour, or only limited hours if paid by Legal Aid.
This should bring one to pause -- is this a clear example of the erosion of one of the most basic fundamental principles of justice, an accused's right to make full answer and defence?
"Clary Jaxon" takes a critical look at how current social theories and the efforts to instill them compare to the reality of actual social conditions. With a focus on Canadian issues. Check out the STW YouTube channel.