Questions raised after woman had to watch video of alleged sex assault 3 times at trial

Earlier this week, a 22-year-old woman sobbed as she watched a video of the alleged assault three times in Halifax provincial court at the sexual assault trial of Matthew Percy.

'It is difficult to imagine a more obvious example of retraumatization than what she went through'

Matthew Percy, a 35-year-old former groundskeeper at Saint Mary's University in Halifax, faces three separate allegations of sexual assault, each involving a different woman. The alleged incidents happened at different times and are being dealt with in separate trials. (Brian MacKay/CBC)

An expert in sexual assault law says she's concerned that a sexual assault complainant had to watch a video of the alleged incident in a Nova Scotia courtroom earlier this week.

On Tuesday, a 22-year-old woman sobbed as she watched a video of the alleged assault three times in Halifax provincial court at the sexual assault trial of Matthew Percy.

The court was told the video was retrieved by police from the phone of Percy, a former Saint Mary's University groundskeeper, after his arrest.

The section of video played three times shows a man holding a woman's head over his crotch.

The woman testified it is her, but said she was forced to give oral sex, did not know it was being recorded and would never have consented to it being filmed.

The video goes on to show intercourse. The woman had to watch that section once.

"There are some serious, and I think, important questions we can raise as to whether every possible step was taken to make what is a brutal and traumatizing experience as humane as possible," Dalhousie law professor Elaine Craig told CBC's Mainstreet.

Dalhousie University law professor Elaine Craig says there are testimonial aids that can be used in the courtroom to help sexual assault complainants. For example, they can testify behind a screen. (Andrew Vaughan/Canadian Press)

She wondered if the complainant was even aware whether she'd be required to watch the video in court.

Percy, 35, faces three separate allegations of sexual assault, each involving a different woman. The alleged incidents happened at different times and are being dealt with in separate trials.

Craig said there are aids to giving testimony that can be used in the courtroom to help sexual assault complainants. For example, they can testify from behind a screen.

'Obvious example of retraumatization'

In this trial, CBC reporter Blair Rhodes noted that the accused stared at the complainant at times while she watched the video.

"It is difficult to imagine a more obvious example of retraumatization than what she went through on Tuesday," said Craig.

Jackie Stevens, the executive director of the Avalon Sexual Assault Centre, said she doesn't believe it's common practice for a complainant to watch video of an alleged sexual assault. She worries about the harm it would cause.

"She has to relive that assault repeatedly as that video is shown," said Stevens.

Craig wondered whether the complainant was given the option to testify from behind a screen, or via video link, so that she wouldn't have to be in the same room as the accused, or others, when the video was shown.

Craig would also like to know whether an exclusion request was sought. An exclusion request would see the judge clear the courtroom.

The Matthew Percy trial is taking place at Halifax provincial court. (CBC)

"Why were there reporters and observers in the courtroom when the video was played and the complainant was questioned on it?" said Craig.

She said the Crown "often" fails to apply for testimonial aids in sexual assault trials.

Craig said exclusion orders aren't a common thing and the trial judge has to balance the public's right to an open court.

"But, nor is it usual in my experience to have a complainant be required to view a video of her alleged rape," said Craig.

Crown attorney Rick Woodburn said the Crown considered having the complainant testify behind a screen or by a video link, but decided against it. (Craig Paisley/CBC)

"It seems to me exactly the kind of case where this type of order, should the complainant desire, would be entirely appropriate, entirely consistent with the administration of justice."

She said this type of incident could discourage other complainants from coming forward.

Stevens said very few victims report sexual assaults and among those who do, very few of those cases result in charges or make it to trial.

"For someone to continue takes tremendous courage and strength to get through the trial and deal with having to repeat the story and often times, you know, be attacked by the defence in terms of their believability and credibility," said Stevens.

Crown response

Crown attorney Rick Woodburn said the Crown considered having the complainant testify behind a screen, or by a video link, but decided against it.

He said the Crown also considered the exclusion order but did not proceed with it.

The only people in the courtroom gallery when the video was being played were two reporters and members of Percy's family.

Read more stories at CBC Nova Scotia

With files from Susan Bradley, CBC's Mainstreet and Blair Rhodes