Spencer Van Dyk
Sexual assault defendants cannot to question complainants about their sexual history in an attempt to discredit them, according to the rape shield law, but the Jian Ghomeshi is an example of the law needing an update, according to experts.
Ghomeshi’s case calls into question the need to adapt the current law to current societal norms and practices.
The rape shield law has changed several times since its inception. The first law was enacted in 1976, and the second in 1983, when it underwent several changes. Among them, the crime of “rape” was replaced with “sexual assault.” Also, the sexual assault charges were no longer off limits within a marital relationship, the law was no longer gender-specific, and complainants were no longer restricted by “recent complaint,” which meant they no longer had to make an accusation within a certain timeframe.
The law was struck down in 1991 in a Supreme Court decision. It then underwent more changes, leading to an overhaul in 1992. The way current sexual assault cases are handled has changed along with it.
Former CBC radio host Jian Ghomeshi is charged with four counts of sexual assault and one count of overcoming resistance by choking. During his trial, the complainants were asked about emails exchanged between themselves and Ghomeshi after their alleged assaults.
“The one time where the new rape shield law was clearly being evoked was when the defence wanted to question complainant three about her subsequent hand job,” said Carissima Mathen, a constitutional lawyer and University of Ottawa professor.
Otherwise, she added, the rape shield law was not violated, because it accounts for sexual activity, which is typically considered sexual contact. Sexual activity through electronic communication is not accounted for in the law, likely because it was written so long ago, she said.
“Either you could get parliament to amend the code and provide a definition,” she said, “or you’ll get a court interpreting what that means and maybe using the context of the world in which we live, and maybe sexual activity would be defined more broadly than it was in 1992.”
In 1991, there was a blanket provision that sexual assault complainants could not be questioned about their sexual history in a trial, but the Supreme Court struck down the law, saying it violated the rights of defendants to a fair trial.
Richard Peck is a Vancouver lawyer who was appointed to the Queen’s Counsel in 1987. He spoke publicly about the changes in 1991, and said of the time that there was a “measured response” by the public, leading to a re-enactment in 1992.
“It depends on who you were in society,” Peck said. “If you were a thoughtful criminal lawyer, you would say it was a good thing, because it was already restrictive, and it denied people the right to make full answer and defence. It went to the core of the presumption of innocence, it offended your fair trial rights, and so on. If you were someone who was deeply embedded in the other side of the question, you’d say ‘we don’t want those questions.’”
He went on to call the 1983 and 1991 changes to the Criminal Code a “period of enlightenment.”
“If you go back and look at the whole history of this, it’s really a hell of a lot deeper than just sex,” he said. “It goes to the way women were treated in society historically, in terms of expectations of women from childhood and what they could and couldn’t do.”
Whether or not the Criminal Code will be adapted to current societal norms remains to be seen.
This is an article from Vancouver Sun from 1991 discussing the rape shield law reform, and using Richard Peck as a source. I found it through LexisNexis once I decided on my topic. It was very helpful, because it gave me a sense of the sentiment at the time of the law change, and led me to Richard Peck as a source.
This is a New York Times article from 1991 discussing the rape shield law reform, and it was one of the first articles on the subject that I found, which led to my interest in the subject. I found it on LexisNexis. I found it very helpful, because it, again, gave me a sense of the sentiment at the time, as well as providing an unbiased opinion, because it was published in an American publication. It gave me a sense of Canada’s law reform being important not just here, but in the United States as well.