The Supreme Court Just Made it Harder to Undermine Rape Victims

Photo via Flickr user jordanschulz.
In another win for privacy rights, the Supreme Court decided unanimously last Wednesday that people accused of sexual assault will not get automatic access to their victims’ personal records.

Vincent Quesnelle was charged with assault, sexual assault, sexual assault with a weapon, robbery, threatening to kill, and threatening serious bodily harm. He and his lawyer argued they should have access to past police records of the women making the allegations—and the Court of Appeal agreed and ordered a new trial for his case. The decision Wednesday undid this and reinstated his conviction, along with a sentence of six and a half years in prison.

Two advocacy lawyers, Karen Steward and Bernadette Maheandiran, wrote about the decision's possible impact on the Ontario Bar Association’s website in March. “If Quesnelle stands, there may be a chilling effect on the reporting of sexual offences by persons with mental illness who have had prior police contact,” they wrote. “They will be forced to make an impossible choice between reporting these offences and maintaining the privacy of records that may reveal exceptionally intimate details about their lives.”

The last thing we need is yet another barrier for women who want to report sexual assault. Already, only about 8 percent of these crimes are ever reported to police. Of those, only half result in criminal charges and of those, only one in four leads to a guilty verdict. And research shows that only about 2 to 8 percent of rape accusations are false.

Going after the victim’s credibility is often the only defence an alleged offender has. It’s a common strategy, and one that often works—especially in the U.S. where some high-profile cases get a lot of media attention and there aren’t automatic publication bans on the names of sexual assault victims. Remember Nafissatou Diallo? She’s the New York woman who accused then-French presidential hopeful and head of the International Monetary Fund Dominique Strauss-Kahn of molesting her and forcing her to perform oral sex. The case never even got to trial because the prosecution decided that a jury wouldn’t find her credible. Her reliability was pivotal, despite physical evidence (his semen on the carpet of a hotel room she was cleaning) and multiple witnesses who said she’d told them what happened and was visibly upset. Strauss-Kahn settled with Diallo out of court and returned to France to face charges of aggravated pimping.

Here in Canada, it became commonplace in the 1980s for defence lawyers in sexual assault trials to seek personal records of the victim, like therapeutic or medical records, Steward said. “Because a lot of the time it’s a he said/she said with no other witnesses, it’s a strategy to go after the credibility of the person who’s complaining of the offence, and that’s why going after someone’s medical or psychiatric records is something the defence would be interested in. And sometimes legitimately so.”

In this case, Quesnelle was seeking old police records unrelated to his charges. The Supreme Court and Court of Appeal decisions were basically about what counts as a “record” and whether that extends to a police occurrence report that mentions the complainant but has nothing to do with the case at hand.

“It’s so weird that a statutory interpretation of a simple word would have such repercussions,” Maheandiran said. Quesnelle and his lawyer argued that the police should just have to hand over the records with no hearing or discussion of their relevance whatsoever. “If the Court of Appeal decision stood, it would have meant that they didn’t have to go through this procedure. The Supreme Court decision says that they do,” said Maheandiran. “Now it may go forward anyway but at least [the victim] got to have a say.”

The Barbra Schlifer Clinic, a legal clinic for women in Toronto that intervened in this case, put out a statement saying, “we are thrilled… that highly private and potentially prejudicial police records about complainants (such as suicidal 911 calls or reports of sexual assault that have nothing to do with the accused) will not now be automatically produced to men without consideration of the complainants’ equality and privacy rights.”

Women who are more vulnerable to sexual assault also tend to have more government records about them. This includes childhood sexual assault survivors, women with mental and physical disabilities, aboriginal women, and poor or homeless women. So if the ruling had gone the other way, the people most likely to suffer sexual assault would've had one more reason not to report it.

“Women’s fears that their private information will be disclosed to the men who have abused them has always been—and continues to be—a major reason for not reporting sexual assault,” the clinic's statement said. “This is true for the women that the Barbra Schlifer Clinic serves, and is confirmed by the experience of sexual assault front-line service providers across the country. Women are reluctant to endure re-victimization through exposure and scrutiny of their personal lives and private records, particularly in a criminal justice system where gendered and race based biases and stereotypes still permeate the investigation, prosecution, and adjudication of sexual assault.”

In this climate, where victim-blaming is still prevalent and ignorance about sexual assault is abundant, a ruling the other way would have literally added insult to injury. A Court of Appeal judge had actually decided that men accused of sexual assault deserve unlimited, automatic access to records about their victims. This would’ve made it pretty easy for defence lawyers to argue a woman is a liar--and they don't need to prove she lied about sexual assault before, mixing up some dates, or lying about when she last used Match.com have been good enough to discredit victims in Canadian courts this year.

Now, lawyers must prove in a hearing that specific records are “likely relevant” and “necessary in the interests of justice,” the court ruling said. “People are entitled to provide information to police with confidence that the police will only disclose it for good reason.”

At least now victims can report sexual assault without fear that their entire history is going to be laid before the court. “Privacy is not an all or nothing right,” the decision said.

@emmapaling