A Pragmatic Approach to Adjudicating Childhood Sexual Abuse - Jenna Symons
As the conversation around childhood sexual abuse grows, so does the knowledge that the impact this type of abuse has on the victim is lifelong. A misunderstood aspect of this lifelong impact is the time it may take a child to come forward and disclose the sexual abuse to someone they can trust. Historically, this time to process and to ask for help has worked against the victims of childhood sexual abuse as the courts were guided by a strict limitation periods informed by how much time had passed since the last instance of relevant conduct and the victim’s coming forward. In the case of R v KDM (“KDM”), the Manitoba Court of Queen’s Bench (“the MBQB”) affirmed the move away from the prior limitation period’s strict numerical calculation and towards a pragmatic approach that sees that victims of childhood sexual abuse attain justice in order to begin or continue their lifelong healing journey.
In KDM, a child suffered physical and sexual abuse by her father from the age of five to eight years old. To provide an understanding of the pain and fear that ruled the child’s life during this time, the charges her father faced in KDM were, assault, assault with a weapon, sexual assault, sexual interference, incest, and sexual assault causing bodily harm. The issue in KDM was whether the video confession of the child should be admitted as evidence when it was recorded some five years after the last incident occurred. In considering whether the video should be allowed, the MBQB continued a trend of expansion of the idea that matters such as childhood sexual assault cannot be dealt with by strict numerical calculations. The MBQB’s analysis instead detailed a great number of factors and considerations that should be addressed when determining if a confession was obtained too long after the last incident occurred.
The section of the Criminal Code (“the Code”) at play in KDM was section 715.1(1), which states that:
Evidence of victim or witness under 18
715.1(1) In any proceeding against an accused in which a victim or other witness was under the age of eighteen years at the time the offence is alleged to have been committed, a video recording made within a reasonable time after the alleged offence, in which the victim or witness describes the acts complained of, is admissible in evidence if the victim or witness, while testifying, adopts the contents of the video recording, unless the presiding judge or justice is of the opinion that admission of the video recording in evidence would interfere with the proper administration of justice.
Applicable Law the Courts Expanded Upon
The Crown in KDM provided a review of the law as it pertained to section 715.1(1) of the Code. First, the Crown asserted that the purpose of section 715.1(1) of the Code was to address the barriers child victims are faced with while at the same time not interfering with the rights of an accused to a fair trial. Second, there are three primary objectives:
preserve an earlier account of the child’s disclosure;