Should courts force the accused to testify at sexual-assault trials?

It’s time for Canada to reconsider one of its constitutional rights.
The right that guarantees that people not be forced to testify at their own trials is standard in our legal system. But with those accused of sexual assault, a crime that is seldom reported and even more rarely leads to a conviction, upholding that right thwarts justice.
The statistics vary, but the best-case scenario is that people report 22 per cent of sexual assaults. Many other surveys and studies suggest that rate is lower. And only one in four sexual-assault reports lead to a charge, which means less than 10 per cent of sexual assaults lead to a conviction.
Sexual assaults usually happen with just two people present. The case comes down to one person’s word against another’s. When only the victim takes the stand, the focus becomes the defence lawyer discrediting the victim’s statements while questioning integrity and character.
Meanwhile, prosecutors usually rely almost exclusively on victims’ statements. As a result, the case often hinges on whether victims are credible witnesses.
The way to fix this is to compel people accused of sexual assault to give evidence. There is nothing that can legally require people to give a statement to police, but there is a way for the federal government to make people charged with sexual assault testify at their trials.
There is a section of the Canadian Charter of Rights and Freedoms called the Notwithstanding Clause. Parliament, or any provincial legislature, can pass a law and say that it operates notwithstanding any right contained in certain sections of the Charter of Rights and Freedoms.
Given the low conviction rate for sexual assaults, it’s time for Parliament to use this clause to hold those accused of sexual assault accountable because all previous strategies have failed.
The presumption of innocence remains and the Crown must still prove guilt beyond a reasonable doubt. All this does is require someone to tell the truth in court. How can that be a bad thing?
A law like this could have helped lead to a conviction in the Rehtaeh Parsons case. After Rehtaeh Parsons died in April 2013, one of her four alleged attackers contacted her mother Leah Parsons.
During the investigation, he had refused to give a statement to police.
This person, who media can’t identify because he was younger than 18 at the time, gave his version (in detail) of what happened the night that Rehtaeh Parsons went to a home in Eastern Passage.
It was supposed to be a sleepover, he said, but it turned into a drinking party. The boy said that Rehtaeh showed an interest in him and a friend while she was sober. Based on that, he said he believed that he and his friend had consent. But by that point in the evening, Rehtaeh was too drunk to consent to anything. The fact that she was puking out a window while the boys were sober enough to help carry her to another room reflects the disparate levels of inebriation.
The much publicized child pornography trial involved these two boys, the one who took the picture and the one who shared it with a friend, but there was no trial for the other two boys who violated Rehtaeh while she was drunk. The boy, in his message to Leah Parsons, said that two other boys “had sex” with Rehtaeh after they had “helped” her to another room. Rehtaeh had not indicated an interest in having sex with both boys when she was sober and she was clearly too drunk to consent to sex with them at this point.
The Crown has never laid charges against these two, both under 18 at the time. Glen Canning, Rehtaeh Parsons’ father, says the RCMP told him that the message sent to Leah Parsons in April 2013 contained no new information.
If that’s true, then the police failed even more miserably than the Segal Report last fall said they did. What is more likely is that the earlier investigation failed to unearth this information and, when it came to light, Rehtaeh Parsons was dead and the only charge with a reasonable chance of conviction was the child pornography charge.
If there was a law compelling accused persons to testify in sexual assault cases, the police would have been more likely to lay a charge in this case and the facts in that message to Leah Parsons would have been revealed at a trial. Revealed sooner, this truth could have led to a conviction and might have saved the life of Rehtaeh Parsons.

This story was originally published in Halifax Magazine.

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