What evidence can be used against me in a sexual assault trial?


Evidence in sexual assault cases could include testimony from the complainant and accused, forensic evidence, health records, emails or text messages, and video evidence. Let’s look at each separately.

What if I am falsely accused of sexual assault?

Most cases of sexual assault come down to he-said/she-said scenarios. Both people may agree there was a sexual encounter, yet may disagree on whether consent was given for what happened.

The judge or jury will have to decide whether the prosecution has proven the allegation. As your defence lawyer, I will examine the statements the complainant made to police during the investigation and compare those to what they say in court. Any inconsistencies or differences between the two can be brought to the court’s attention, weakening the complainant’s credibility.

Keep in mind that people lie for all sorts of reasons. There have been cases where people make sexual assault allegations as a way to punish or shame another person, or for other reasons. According to information from Statistics Canada, 14 per of sexual assaults reported to police were classified as unfounded in 2017. That means it was “determined through police investigation that the offence reported did not occur, nor was it attempted.”

In any sexual assault case, a complainant’s evidence has to be clear and convincing. If it does not meet the “beyond a reasonable doubt” burden of proof required to achieve a finding of guilt, a conviction cannot be imposed.

What forensic evidence can be used against me?

The presence of semen, hair, saliva or fingerprints can be important pieces of evidence, depending on the circumstances. If a man claims he did not have sex with a woman, but traces of his semen can be found in her body or on her clothing, that evidence will certainly bolster the Crown’s case.

On the other hand, if they both agree there was sexual activity but disagree on whether consent was given, traces of semen or hair on her clothing is not proof that a sexual assault occurred. In both cases, if a significant amount of time has passed between the alleged assault and the trial, there may be no forensic evidence available.

What electronic evidence can be used against me?

Email and text messages can be vital pieces of evidence in a sexual assault investigation, as they may show what either party was thinking before or after the alleged assault. In 2016, a prominent CBC radio host was found not guilty of sex assault charges. A key part of the evidence were emails from one complainant, expressing her sexual desire for the radio star just hours after he allegedly sexually assaulted her.

If someone is accusing you of sexual assault and you have emails or texts from them that portray the encounter in a different light than they allege, make printouts of that correspondence. You may not be able to retrieve those electronic messages months or years later when the case goes to trial.

In 2018 Parliament enacted a section of the Criminal Code that stated that if the accused has electronic messages between them and the complainant, the defendant could not use them in defence of the allegation. However, a provincial court judgment in Alberta ruled the legislation “goes too far … it violates [the accused’s] right to silence, and right to make full answer and defence in requiring him to reveal evidence in his possession and how it will be used at trial beforehand.”

What video evidence can be used against me?

Video surveillance cameras are everywhere today. The evidence these cameras gather can play a significant part in sexual assault trials, especially if they show a sexual assault occurring. Conversely, video footage may support a defendant’s alibi that they were elsewhere when the alleged sexual assault occurred.

Can I bring up the complainant’s sexual history as evidence?

Sexual history can be admissible in certain circumstances though s. 276 of the Criminal Code defines two occasions where it is not. Commonly known as the twin myths, this section states that just because a person has consented to sex in the past they will again, or that their previous sexual activity makes them less worthy of belief. Every instance of sexual activity must be independently consensual.

What needs to be proven with sexual assault?

Any crime involves two basic elements: a wrongful act committed by the accused and an accompanying intention to commit the offence (mens rea, which is criminal intent or a guilty mind). Sexual assault occurs when one person touches or otherwise imposes themselves on another person in a sexual manner. That can be as simple as touching them in such a way as to violate the sexual integrity of the person to forcing them to have intercourse.

Also keep in mind that the statute of limitations does not apply to sexual assault offences. Unsolved cases can be reopened if more information is received, which can lead to an arrest or charges at a later date.

Let me help build your best defence

A sexual assault conviction will likely lead to a jail sentence, not to mention the social stigma attached to the crime. You need an experienced defence lawyer to examine all the evidence against you and develop a defence strategy. If you are facing a sexual assault charge, contact me for a free consultation.