Sexual Assault: The False Allegation
by Tushar K. Pain
Facing a false allegation of sexual assault is a stressful event. You may be experiencing feelings of shame, embarrassment, anger, and fear. "Why is this happening to me?" "What should I do?" These are common questions that you may be asking yourself.
The offence of sexual assault encompasses everything from a simple pat on the bum to forced intercourse. Therefore, the allegations can vary in degrees of seriousness. However, the Office of the Crown Attorney (the prosecutor) takes all allegations of sexual assault seriously. This means that charges of sexual assault are prosecuted even in cases where the evidence may appear weak or questionable.
Many sexual assault cases are of the "he said – she said" variety ¾ cases that basically consist of an allegation by a complainant and a denial by the accused. Most people believe that such an allegation must be true. After all, why would someone ever make up such a thing? Unfortunately, false accusations of sexual assault are not an uncommon occurrence.
People do make up false charges and the motives to do so are wide and varied: jealousy, revenge, attention, and cover up are but a few examples. Sometimes, no motive is apparent. Such allegations can be made by adults or by children. Children’s motives are often tougher to discern. A child may have been subject to influence by an older person with a motive or an agenda. Alternatively, it may be an overactive imagination based on something the child has seen, heard, or experienced somewhere else.
Where a child less than fourteen years of age makes an allegation of sexual assault, an accompanying charge of sexual interference, invitation to sexual touching, or sexual exploitation may be laid as well. These charges criminalize sexual contact with a person under fourteen. Consent is generally not a defence to one of these charges.
These cases do share some common characteristics. To properly defend such a case, a lawyer must possess good cross-examination skills, good listening skills, and be thoroughly prepared. The lawyer should be able to walk into the courtroom with the confidence that he or she knows the case inside out and better than anyone else in that courtroom.
Through cross-examination and the presentation of defence evidence a winning defence is built by exposing frailties that often exist in such cases:
Inconsistencies within the testimony of a witness: They may exist in the complainant’s evidence. For instance, in a prior statement to the police the complainant claims that she was sexually assaulted in the bedroom. Then, in court, the complainant testifies that the incident took place in the living room.
Inconsistencies between two separate pieces of evidence: As an example, such an inconsistency can occur between the complainant’s testimony and medical evidence. The complainant claims to have been punched repeatedly in the face by the accused during the sexual assault. Evidence of the medical examination conducted right after the alleged attack reveals that there were no injuries to the face of the complainant.
Testimony about an event that is improbable: This may be a description of an occurrence that is difficult to believe. As an example, a complainant testifies that a struggle ensued and the complainant tried to fight off the attacker throughout the entire ordeal. The accused pinned the complainant’s hands down with his, never releasing his grip. Yet, the complainant also testifies that the attacker was wearing a condom. How did the attacker manage to put on the condom?
Evidence regarding behaviour that is questionable in light of the allegations: This type of evidence may relate to behaviour before, during, or after the alleged incident. For instance, a complainant testifies to be being raped during a date. Further evidence reveals that the complainant went out with the accused to see a movie the night after the alleged rape.
Evidence that reveals a motive to fabricate: Several motives to fabricate have been mentioned above. One such example relates to the motive to cover up a relationship. For instance, the mother of the complainant testifies that the complainant is too young to be dating and would not be permitted to have a boyfriend let alone engage in sexual activity. The mother further testifies that if the complainant were to engage in such behaviour, she would be disowned. This reveals a possible motive on the part of the complainant to paint a consensual relationship as a non-consensual one.
Testimony that reveals a lie: Lies may be revealed in what was said in earlier testimony, what was said at an earlier court proceeding, what was said to the police during the investigation, or what was said to someone else such as another witness, a friend, a relative, or a doctor. The exposed lie is a powerful tool with the potential to completely destroy the credibility of a witness.
These are a few examples of the frailties that often exist in a case where sexual assault is falsely alleged. However, each case is unique and a formulaic approach should never be applied when building a defence.
Such cases require that the defence lawyer and the client work closely together so that all the relevant facts are brought to light and the best possible defence is advanced.
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