Should We Move Away From Such a Stringent Standard of Proof in Cases of Sexual Assault?

Author: Samantha Onchulenko

Concern has been raised about the standard of proof applicable in serious cases of sexual assault and whether it requires reformation. This blog will look at the case of R. v. D.A.B., 2021 MBQB 185 (D.A.B.), which involved a sexual assault allegation resulting in an acquittal. The blog will then go on to discuss the criminal standard of proof “beyond a reasonable doubt” and the public’s perception of Blackstone’s ratio that it is “better that ten guilty persons escape, than that one innocent suffer.” Blackstone was an English legal scholar in the late 1700s. Blackstone’s ratio was later adopted by the British and can be understood as the foundation of what is known today as the presumption of innocence. This blawg will then pose the question of applying a different, less stringent standard of proof in more serious cases like in cases of sexual assault.

In D.A.B., the accused was “charged with sexual assault causing bodily harm and choking to overcome resistance with respect to an alleged assault on his girlfriend.”[1]

The Complainant’s Evidence

The complainant described a verbal argument between her and the accused.[2] She states the accused tried to bend her over to have sex with her, which resulted in her using their safe word “purple.”[3] The accused said he changed the safe word.[4] The complainant states she was thrown on the bed, her hands were tied with rope behind her head, and that she begged the accused to stop while he choked her and covered her mouth with his hands.[5] She states she bit the accused’s finger and ran into the bathroom before being dragged into the living room where the accused forced sexual intercourse on her.[6] The complainant then ran to her caretaker’s apartment to call 911.[7] “The complainant said that she did not want to have sex with the accused and that she did not communicate that she was consenting.”[8]

The Accused’s Evidence

The accused admitted to the couple having had sexual relations – however, his version of the events involved a playful encounter where the complainant initiated sexual intercourse after her use of the safe word.[9] The accused testified that he was surprised when the complainant used the safe word and that he made a joke saying “only I know the safe word” but then stopped touching her after she used the safe word.[10] His version of events included the complainant running out of the apartment after sex, and that when she came back, he held the apartment door shut but the complainant got the door open and ran out yelling “rape.”[11] The accused denies choking the complainant or tying rope around her neck, and states the complainant did not bite his finger – he said that he believed, from the complainant’s body language, that she was consenting to sex.[12]

The Law

“To convict the accused of sexual assault, the Crown must prove beyond a reasonable doubt that the complainant did not consent to the encounter and that the accused had the necessary mens rea – that he knew or was reckless or wilfully blind to the lack of consent.”[13] The Court notes “whether the complainant consented is determined subjectively, from the complainant’s perspective.”[14]Further, “while the accused’s perception is not relevant in determining whether the complainant consented, his evidence as to what transpired is part of the evidence to consider in assessing the complainant’s credibility.”[15] Lastly, the Court states “If, on the basis of all of the evidence, I am not satisfied beyond a reasonable doubt that she did not consent, I must acquit.”[16]

Decision

The complainant and the accused described very different versions of the sexual encounter.[17] The case turns on the credibility of their evidence.[18] The complainant described a vicious assault.[19] The accused described a different sexual encounter.[20] The court found the accused to be a credible witness and stated this caused the judge to “question the veracity of the complainant’s version of events.”[21] Inconsistencies in the complainant’s story went towards her credibility.[22] The judge concluded, saying, “I do not accept her evidence that she was viciously assaulted by the accused… As a result, I must acquit the accused of the charge of choking to overcome resistance.”[23]

Regarding the charge of sexual assault, the Court stated, “I have enough concerns about the veracity of the complainant’s evidence that it would be dangerous to convict based on it. I therefore find the accused not guilty of sexual assault.”[24]

Standard of Proof “Beyond a Reasonable Doubt”

The standard of beyond a reasonable doubt in criminal law is a high standard of proof, which has been a longstanding principle in the criminal justice system. Why do we have this standard? The case of F.H. v. McDougald states, “the criminal standard of proof beyond a reasonable doubt is linked to the presumption of innocence in criminal trials.”[25] The presumption of innocence is a key protection of anyone accused of a criminal offense. This presumption echoes Blackstone’s ratio that it is “better that ten guilty persons escape, than that one innocent suffer.”[26]

This high threshold of proof applied to sexual assault cases makes it harder for victims to get justice. The requirement of having to prove someone is guilty of sexual assault “beyond a reasonable doubt” likely allows for acquittals of guilty perpetrators. In the case of D.A.B outlined above, the accused was acquitted on his charges of sexual assault. Perhaps this would not have been the case had the standard of proof been something other than “beyond a reasonable doubt.”

It is important innocent individuals are protected by the presumption of innocence until their guilt is established. However, it is also important that victims of sexual assault be able to get their assailant convicted when they have been sexually assaulted. How does one accomplish these two seemingly contradictory goals?

A Dutch study which focused on the public’s perception of Blackstone’s ratio acknowledged “while it is generally accepted that criminal courts in western jurisdictions maintain high standards of proof, the uninformed public may well have other views on the decision criteria governing conviction or acquittal.”[27] The study found that “a lower standard of proof is desired in the case of a more serious crime. The primary focus of the public therefore appears to be the cost of false negatives.”[28] The article describes a false negative as acquitting a guilty person.[29] Therefore, the public surveyed in this study felt that it was more important to have a lower standard of proof in the case of more serious crimes to avoid guilty people being acquitted, like in serious cases of sexual assault.

In D.A.B, the judge had a reasonable doubt as to the evidence of the complainant which led to an acquittal of the accused.[30] Though the complainant’s evidence raised a reasonable doubt in the judge’s mind, it still may be the victim was sexually assaulted and she was just not able to convince the judge as such beyond a reasonable doubt, the current legal standard.

In cases of sexual assault, the evidence is typically from just two people: the accused and the complainant. There may be several reasons why a court enters an acquittal: the complainant is not believed, the standard is too high, or the accused is believed.

The question is whether there should be a different standard of proof applied to cases of sexual assault, resulting in a leveling of the playing field that provides better protection to the complainant.

It may not mean changing the standard to the balance of probabilities, but perhaps the standard should be relaxed the more serious the crime. An example of this type of variable standard was used in civil fraud cases. The standard was still the balance of probabilities, just a higher version of the same as first described in Derry v. Peek.[31]In the case of a serious crime, perhaps the version of “beyond a reasonable doubt” should be lowered. Traditionalists will argue the standard should not be watered down because we do not want to convict an innocent accused. The Dutch would disagree. What do you think?

[1] R v DAB, [2021] MBQB 185 at para 1 [DAB]. [2] Ibid at para 2. [3] Ibid. [4] Ibid. [5] Ibid. [6] Ibid at para 3. [7] Ibid. [8] Ibid. [9] Ibid at para 14. [10] Ibid. [11] Ibid at para 15. [12] Ibid at para 16. [13]Ibid at para 26. [14]Ibid at para 27. [15] Ibid at para 28. [16]Ibid at para 29. [17]Ibid at para 35. [18] Ibid. [19] Ibid. [20] Ibid. [21]Ibid at para 44. [22] Ibid. [23] Ibid at para 49. [24] Ibid at para 51. [25] FH v McDougall, [2008] SSC 53, [2008] 3 SCR 41 at para 41 [McDougall]. [26] JW de Keijser, EG de Lange, & JA van Wilsem, “Wrongful convictions and the Blackstone ratio: An empirical analysis of public attitudes” (2014), 16(1) Punishment & Society 34. [Wrongful Convictions and the Blackstone ratio]. [27] Wrongful Convictions and the Blackstone ratio, supra note 28 at 33. [28] Ibid at p. 44. [29] Ibid at p. 34. [30] DAB, supra note 1 at para 51. [31] Derry v Peek (1889), 14 App Cas 337 (HL).