Sexual Offences: Actus Reus, Consent, and Procedural Inefficiencies - Megan Simpson

Sexual assault is among the most polarizing topics in criminal law, with many voicing concerns that certain social factors can unfairly and negatively prejudice complainants. In this blog, I will argue that the issues commonly observed in sexual assault cases where testimony is the bulk of the evidence are not a result of the elements of the crime being poorly constructed, rather they are rooted within procedures. This blog will first analyze the element of consent in sexual assault, with an emphasis on how it relates to the actus reus of the offence. Next, I will give an overview of how the court’s interpretation of this element has evolved. Finally, I will conduct a brief comparative analysis between our system and the inquisitorial system to demonstrate how issues relating to establishing a lack of consent may be manifesting.

R. v. D.A.B is a Manitoba Court of Queen’s Bench decision. There were two charges against the accused; the first charge was for sexual assault causing bodily harm and the second was for choking to overcome resistance. What was alleged by the complainant is that the accused forced himself on her and tied a rope around her neck, choking her.[1] It is an established fact that soon after the complainant claims this alleged assault occurred, she made a call to 911; however, in this call, she did not mention any assault.[2] The accused admitted to having sexual relations with the complainant on the day the assault was alleged, but claimed it was consensual.[3] Much of the evidence presented in this case was the verbal recounting of what allegedly occurred from the complainant and the accused, with little physical evidence. What was at issue in this trial was the credibility of the evidence recounted by both parties. The court acquitted the accused on both counts, finding that the requisite lack of consent for the actus reus of sexual assault was not established beyond a reasonable doubt; the accused’s evidence did not raise concerns of credibility, while some inconsistencies were found in the complainant’s story.

What drew me to this case was not that I found the final decision worthy of scrutiny; I do not think I would have been able to draw a different conclusion if I were the trier of fact, nor was it a feeling that the application of the rule of law was worthy of critique. I was drawn to this case because the type of evidence relied on, and the focus on credibility, demonstrates the inefficiencies of Canada’s adversarial criminal justice system in its handling of sexual violence cases.

The actus reus of sexual assault has three elements: touching, the sexual nature of the contact, and the absence of consent.[4] In R. v. D.A.B., both parties agreed that a sexual encounter had taken place on the day the assault was alleged, but there was no agreeance as to whether or not the complainant had consented. As mentioned, the finding of the court was that the prosecution had failed to prove the requisite lack of consent for the actus reus beyond a reasonable doubt. Determining if there was a lack of consent required in the actus reus of sexual assault in Canadian criminal law requires a subjective analysis of the mental state of the victim.[5] Integrating the aspect of a lack of consent using the complainant’s point of view for the actus reus and the mental awareness of the accused as to that lack of consent through the standard of whether a reasonable person would understand there to be a lack of consent for mens rea is, in my opinion, the most apt method of integrating both the factual and legal causation into the most important aspect of the offence. This approach allows the court to accept that the act occurred when there is no reasonable reason to believe the accuser is being untruthful. This method also allows courts to separately address the moral culpability of the accused so that courts are not convicting those who would not have been reasonably aware they were committing a crime. However, the nature of these types of offences and the type of evidence that is most commonly available: testimony and the set-up of Canada’s trial systems can create significant barriers in establishing a lack of consent, making it difficult to achieve justice in these cases.

The nature of sexual assault cases such as R. v. D.A.B where testimony is relied on as the primary evidence is unique. Reliance on witness testimony as evidence means the credibility of the statements made by both sides becomes the primary deciding factor in whether there can be a conviction. Since the accused and accuser(s), particularly the accuser(s) as the prosecution has to meet the burden of proof, are the providers of most of the evidence; the other side will often attempt to directly attack their personal credibility. As mentioned, one of the aspects the prosecution has to prove beyond a reasonable doubt is that the accuser had not subjectively consented to the sexual encounter. Thus, if the defence can establish reasonable doubt as to the accuser’s credibility, then the offence may not been proven.[6] As was addressed in R. v. D.A.B., factors such as addiction, criminal records, and what some may observe as unusual behaviour (like not reporting the alleged assault soon after it happened) can negatively prejudice a complainant and their claims. However, Canadian courts have taken significant steps to limit and eliminate the weight given to such factors when they are brought forward. For example, as part of the analysis in the D.A.B. case, the judge conducted a detailed overview dismissing various myths and stereotypes which surround sexual assault. Courts have made advancements to dispel myths such as the idea that there is proper post-offence behaviour for someone to engage in after they have been victimized.[7] However, the hurdles of proving the requisite lack of consent for both the mens rea and actus reus of sexual assault offences are still difficult to overcome within the Canadian system.

One of the most important procedural aspects of any case is the trial. In Canada, trials are conducted in an adversarial manner, with attorneys on both sides attempting to advance their position and judges operating as impartial referees and occasionally triers of fact.[8] A possible alternative to such a system is an inquisitorial system. In an inquisitorial system, the judge plays a far more active role in directing the trial and examining the facts.[9] In an inquisitorial system, attorneys’ roles are more passive so as not to operate as adversarial counterparts, but instead to represent the interests of their respective sides to the judge as the judge moves through their analysis and conducts the questioning.[10] It is often said that the goal of the parties in an adversarial system is winning, while inquisitorial systems have much stronger roots in truth-seeking. As much of the evidence in sexual assault trials is testimonial, the operation of an inquisitorial system can allow the judge to scrutinize evidence without the influence of two adversarial sides pushing their own narratives. In an adversarial system, the truth can get buried by both sides attempting to discredit each other through scrutinizing the testimony and character of the person on the other side; a common strategy is to paint a picture of what they want the court to believe occurred and why the person making the claims should not be trusted. An inquisitorial system allows for a more careful analysis of the testimony, which involves only relevant factors. When the questioning is aimed at reaching the truth rather than winning the case, questioning can help to eliminate many of the barriers in proving a lack of consent faced in the Canadian system when much of the evidence is testimonial.

An objection that could be made to this argument is that even if such a system would fix the problems with establishing the actus reus of sexual assault, it would only be replacing these issues with Charter issues relating to the right to a fair trial. Some may claim it is neither a just nor fair trial if the accused cannot advance their position through an advocate dedicated to presenting the best case possible for their side. These concerns are missing the point, which is that our current system is not best capable of handling the well-constructed elements of these offences. A fair trial should be fair for all parties including complainants.

In my opinion, the formulation of the requisite elements of sexual assault, including the lack of consent in the actus reus of the offence in the Canadian system, has been well constructed. However, these well-constructed elements are being failed by an inadequate system. Sexual offences present particular challenges and unique problems in a criminal justice system, which could be better addressed through unique procedures which recognize these challenges.

[1] R v DAB, 2021 MBQB 185 at para 2. [2] Ibid at para 4. [3] Ibid at para 13. [4] R v Semchuk, 2012 BCCA 389 at para 13. [5] Lisa Dufraimont, “Myth, Inference and Evidence in Sexual Assault Trials” (2019) 44:2 Queen’s LJ 316 at 316. [6] Ibid. [7] R v ARJD, 2017 ABCA 237 at para 63. [8] William Parker, “A History of the Common Law and the Adversarial System in Canada” (1986) 5:5 Adv J 6 at 10. [9] Mary-Jo Maur & Nicholas Bala, “Engaging with the Cromwell Committee on Access to Justice: ‘Beyond Wise Words’—Towards a Less Adversarial Approach to Family Justice” (2017) 80 SCLR 63. [10] Ibid.