Rape and the letter of the law

Barbara Amiel December 19 1983

Rape and the letter of the law

Barbara Amiel December 19 1983

Rape and the letter of the law


Barbara Amiel

If we are to take seriously the comments and writing of much of our major media, politicians and social activists (which covers a considerable range, from every NDPer visible to David Peterson, head of Ontario’s provincial Liberal party, Globe and Mail columnist Orland French and Toronto Sun columnists Walter Stewart and Laura Sabia), we can expect the following procedure to be implemented in our criminal justice system:

John Doe is a Canadian citizen. He is 42 years old and has no criminal record. At home one morning he opens his mail. In it is a letter which reads as follows: “Dear Mr. Doe: You have been charged with rape by a complainant whose name we will not reveal in order to protect her identity; who is not required to testify because you might intimidate her; for whom appearing in court might be too traumatic; and whom your lawyer will not be allowed to examine because it might cause her further trauma.

“Therefore, we regret to inform you that you are convicted of rape and we will be pleased to hear your arguments re sentencing next Tuesday at 2 p.m.” That is about the only logical conclusion to the illogical and apparently illinformed responses to the Ottawa rape trial that came to a conclusion last month when the complainant was sentenced to seven days for contempt of court and the two alleged rapists went free.

The complainant was nicknamed “Courtney” by the Ottawa Rape Crisis Centre with which she became involved after the alleged rape. She said that the rape took place while she was babysitting with a male friend. Evidence at the first preliminary hearing—at which Courtney elected to testify—indicated that during the alleged rape Courtney left the room several times. She answered the door when a friend came by, dressed and washed in the bathroom and did not. take those opportunities to telephone police or ask for help. She had no bruises or marks, denied that there was any physical struggle in getting her clothes off and could not remember how they happened to be removed.

Evidence was introduced that she had been a prostitute at one time, during which she laid a false charge of sexual assault against a client she described as a “John.”

Rape, of course, is a hideous, horrible crime and is no less hideous or horrible

if it is perpetrated on people who are or have been prostitutes. A trial might have cleared up some of the confusing details about the circumstances of the alleged attack.

But there was no complete trial because, after the first preliminary hearing, Courtney would not testify further, claiming that she was afraid of what would happen to her. Subsequently, the two men were let go for lack of evidence.

Courtney was the “best” evidence available—in a legal sense—and, in order to protect the rights of the accused in any crime, the law requires that the Crown provide the best available evidence. (If Courtney had been injured or comatose, then clearly she would not have been the “best evidence.” A witness or a forensic expert might have been.)

She was charged with contempt of court and sentenced to seven days

1Should rape be the only crime in which an accusation should equal conviction without evidence?’

in jail—a very light sentence for contempt.

It is unfashionable to state certain facts about the crime of rape. But they need airing. Rape is a dreadful crimebut it is also devilishly hard for an innocent man to defend himself against such a charge. If a vicious woman, responding to any real or perceived injury, charges rape and the man has spent an evening alone with the woman, he becomes vulnerable.

The situation has not been helped by the pressure of the women’s movement which, with single-minded (if wellmeaning) blindness, managed to effect changes in the law that have tipped the scales against the accused even before the trial begins. Unlike other crimes, the name of the alleged victim cannot be released—but the name of her alleged assailants can be splashed all over the press. Lawyers for the defence are limited in the questions that they can ask the complainant, and other evidentiary procedures have been changed.

In the past a judge was required to point out to a jury that it was dangerous to convict anyone of a crime on uncorro-

borated evidence. This was a warning most often used in rape cases or in cases that involved an accomplice—who might have a special interest in lying to save his own skin.

It was a fair warning. “Uncorroborated” did not mean that there had to be witnesses. In a rape case, corroboration could mean forensic evidence—lab tests, torn clothing, bruise marks. But that warning is now disallowed. And, as is the manner of these things, rape was the thin end of the wedge. Once parliament changed the rule for rape cases because women’s groups thought it was unfair, the rule was subsequently relaxed for trials involving accomplices.

And now Courtney. She has had two men charged with rape. They, like she, may not be knights in armor. I don’t know. That would have come out at trial. But their names have been revealed and, in addition to the rape charge, they seem to have been indirectly accused of intimidation by Courtney, who demanded police protection for 20 years for herself and her family—protection that would have included a police car with a driver acting as a chauffeur 24 hours a day.

I, for one, am tired of hearing Courtney referred to as the “victim,” as she was on the CBC’s The Journal by Cindy Moriarty of the Ottawa Rape Crisis Centre. I am tired of hearing about how this victim went to jail and her assailants were set free. She has not been found a victim of anything. She might have been, but her actions preclude victim status for herself.

God knows what the femlibbers, activists and bandwagoners expect the courts to do about a person like Courtney who obstructs justice in this manner. Columnist Stewart seems to think that the solution is to have an allfemale court hearing these cases. The New Democrats and Ontario Liberal Leader David Peterson seem to think it outrageous that she should be punished for not testifying. The big question is, what do they want? Are they saying that rape should be the one crime in the Criminal Code for which an accusation should equal conviction without evidence? In that case, given the special treatment that rape cases already get, we might just as well equal accusation with guilt, which would lead to the letter this column began with. And that seems to be the direction toward which our legal system is moving. It is a bloody tragedy, and justice—not Courtney—is the victim.