Flare, April 1998
As women’s personal documents are scrutinized in courtrooms across the country, Flare examines the ongoing battle between the right to privacy and the right to a full defense
Recently, in an Ontario courtroom, Sarah Richards(*) sat in the witness box and testified against her ex-boyfriend. She recounted to the court the time she had told her boyfriend she didn’t feel well enough to have sex. Her boyfriend responded that she would have to keep her promise to have sex that night. Sarah claims he pinned her down on the bed, held her arms and raped her.
During their relationship, Sarah began seeing a counsellor to deal with what she described in court as an emotionally and physically abusive relationship. The counsellor recommended that she begin keeping a diary to sort through her thoughts and feelings. She began writing several times a week, but when it came to detailing the abuse, she decided to write in code for fear her boyfriend might read it. “It happened again,” she would write. Like many women in abusive relationships, Sarah did not press charges and even continued seeing the man for many more months before ending the relationship. She says she even urged her boyfriend to seek counseling for his problems.
Months later, after gathering up enough emotional strength, Sarah decided to go to the police and report the rapes. The police asked to see her diary to determine if it could be used as evidence in the case. She agreed to hand it over because she thought it might give insight into her feelings. The detective read the diary and said there was nothing in it that referred specifically to the allegations, so he returned it. At the preliminary inquiry, the boyfriend’s lawyer asked Sarah if she had kept a diary. She explained that she had lost it in the midst of moving. She was then questioned extensive on what the diary looked like, what she had written about and how it had been lost. The defense lawyer said that Sarah’s behaviour was irresponsible and that the diary could have been critical to the case. He also argued that because she had received therapy before coming forward with the charges, she was a less reliable witness because her memory would be filtered through the therapy. The defense lawyer asked the judge to throw out the case, arguing that the accused would not receive a fair trial without the diary. (Ultimately, there was not enough other evidence to convict the accused.)
According to Joanne Macdonald, the Crown attorney in the case, Sarah’s situation is symptomatic of a trend that has emerged in sexual assault cases. Diaries and other personal documents, such as medical and psychiatric records, are becoming the focus of trials and they are being used as a tool for questioning complainants’ credibility. Karen Busby, a law professor at the University of Manitoba who specializes in sexual violence issues, says, “When women are contemplating making a complaint of sexual violence to the police, they need to know that any record ever made about them may be turned over to the judge and, ultimately, to the man accused of raping them.” She says lawyers weren’t interested in such records until 1992 — the year a law was passed that prohibited the use of women’s sexual histories to question their credibility. Busby points out that today, personal documents are pursued routinely in sexual violence cases, but rarely in nonsexual crimes. She says this raises two very important questions: if these records were so important, why weren’t they being sought prior to 1992 and why not in other kinds of cases? The answer is simple, she says: “Defense counsel know that they can win a case if they can portray [the complainant] as a woman who does not deserve the law’s protection they need to turn it into a case about her, rather than a case about him.” Busby says this is more than an issue of rights to keep information private — it’s about equality.
Now that it’s tougher to get at sexual history, the attention is shifting to “the new battleground.” Sexual assault cases go in waves. Some Crown attorneys are concerned that defense lawyers try to attack a woman’s credibility and when they encounter a barrier, move to another line of attack. The latest technique for discrediting a victim of sexual assault is to go after her diary and other personal records or documents.
Martin Peters, a Toronto lawyer whose practice includes defending people charged with sexual assault, starts every case by searching for ways to attack the complainant’s credibility, comparing all the statements she made to check for inconsistencies. A woman might have told police that the accused tore her blouse, but written in her diary that she unbuttoned her blouse because she was afraid that he was going to hit her. Peters says, “As a lawyer, I’m to be hammering those details. It doesn’t mean a judge is going to buy it.” The main purpose of obtaining records is to provide at least a second, if not a third, fourth and fifth version of the alleged events, he says, and then see if her story remains consistent. Peters explains that it is the duty of defense lawyers to do anything within the law to get their clients acquitted — and this might mean compromising a complainant’s privacy by delving into personal letters and diaries. “You have to remember,” he says, “at the end of the day, there’s only one person in the room who may not be going home.”
A couple of years ago, Peters defended a man who was charged with sexually assaulting his daughter from the ages of 3-13. The girl was 16 years old and was receiving therapy when she decided to go to the police. Peters asked the judge for the therapist’s records and since the court was very casual with respect to records at the time, they were handed over easily. Peters says he found a letter in the therapist’s file that the girl had written after she got home from the police station. It said, “I lied to the police; the abuse never occurred and I’m a very good actor.” The man was acquitted and Peters says the letter was a very important factor, among others, in the acquittal. Although this scenario is rare, it gives defense lawyers like Peters good reason to go after any and all personal records. “People do have fights to privacy, but those fights end the second you sit down with a detective,” he concludes.
Lee Mitchell, a lawyer with Toronto’s legal aid clinic Justice for Children and Youth, has represented young women in trials where their personal records have been introduced. He has seen clients become devastated at the prospect of having their diaries and therapists’ notes divulged in court. It is not uncommon for a woman to ask the Crown to drop the charges when she realizes that the man who raped her will have access to the documents that were part of the healing process. Mitchell says, however, some complainants are quite willing to turn over diaries and other personal documents because they believe it will help ensure a guilty verdict. Once a woman mentions her diary to a police officer, she has automatically given up her privacy rights and cannot control what will be done with it, Mitchell says. Even though it has become routine for defense lawyers to ask for records, in the majority of cases Mitchell has seen, the records were not of any assistance to the accused. “If I was a complainant right now and I had a diary and I knew what I know about the law, I would simply not mention that there was a diary. If I had been to therapy, I wouldn’t tell the police that I’d been to therapy.”
While Sarah’s trial was in progress, a new law was passed to address the ease with which defense lawyers could obtain personal documents. Bill C-46, known as the Victim’s Rights Bill, became law on May 12, 1997, and now forms part of the Criminal Code. It makes it more difficult for defense lawyers to obtain a diary or any other record, unless they prove that without it the accused would not be given a fair trial. Even then, the judge can choose to deny the request or restrict access to certain pages or paragraphs. Bill C-46 reflects, among other things, society’s interest in encouraging victims to report sexual offences by reducing the invasiveness of the trial process. Not everyone agrees, however, that Bill C-46 will help deliver justice. In order to protect the accused from wrongful conviction, the system must ensure the presumption of innocence. For the accused, this means having access to as much evidence as possible. The new law is highly controversial because it says there are circumstances where a judge can decide to restrict the accused’s access to certain information in order to protect the rights of the complainant.
Susan Physick, a coordinator of the Victim-Witness Assistance Program at Toronto’s College Park provincial courthouse, helps prepare victims and witnesses to testify in criminal procedures. She says defense lawyers are constantly finding new ways to attack women’s credibility. She calls these “silencing techniques.” There’s always something to discourage women from reporting sexual assault, she says. “Last year at this time, we were all worried about false memory syndrome.” Today, Physick helps prepare witnesses to deal with disclosure of their personal documents by advising women of their fights to seek their own’ legal counsel to defend their privacy rights.
While many people consider Bill C-46 a massive victory in the fight for women’s rights, not everyone is pleased about its implications. The immediate problem is that the law has become the subject of interpretation by judges across Canada — it has already been constitutionally challenged in four cases, and considered in numerous others. In other words, individual judges can choose to ignore the law. Justice Paul Belzil, an Alberta judge, is among those who ruled that the law violates the accused’s constitutional fight to a fair trial and struck it down. A few months later, Justice David S. Crane, an Ontario court judge, upheld the law and denied access to records in the case R. v. Fanjoy.
While individual judges essentially vote on this law with each case, lawyers like Karen Busby worry that it is individual women who will suffer while the battle is being fought. “For centuries, women’s past sexual histories were used to determine whether or not they were capable of telling the truth, and that battle took hundreds of years to fight,” she says. “Producing women’s records is much more invasive, but I’m optimistic that we will succeed in keeping personal records out of the accused’s hands.”
(*) Name has been changed.