Expect to see more video in sex assault trials
'This could ... take the onus off the survivors who have no memory,' women's advocate says
A guilty finding in a Toronto sexual assault trial Friday involving alcohol, amnesia and nearly 30 minutes of video could prompt other survivors to come forward in future cases of sexual violence and memory loss, women's advocates say.
Ontario provincial Judge Mara Greene convicted Moazzam Tariq, 29, of sexual assault after ruling that video evidence showed the complainant was "completely out of it" moments before the pair entered a hotel room.
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Greene's use of video evidence in her ruling could help dispel some of the stigma attached to sexual assault and alcohol, the chairwoman for the Ontario Coalition of Rape Crisis Centres said Friday.
Sexual assault survivors who have been drinking or have been drugged have historically been "shamed" by society, but also by police and within the courts, Lenore Lukasik-Foss said.
"Perhaps this will make those who wish to enter the [justice] system feel like there is a little bit more of a level playing field about not just relying on 'his word' versus 'her word' with consent," the chairwoman said. "This could be a good development where we take the onus off the survivors who have no memory and there's some independent evidence."
The Crown prosecutor entered almost half an hour's worth of video evidence in the Tariq case. The video followed the Brampton, Ont., man and the complainant from their meeting at the Everleigh nightclub at 2:21 a.m. — to him leading her off the elevator at the Thompson Hotel.
The evolution of the complainant's behaviour over that time was what convinced the judge of the woman's inability to consent to sex, Greene said in her decision. While the then-25-year-old seemed able to dance and text on her phone at the nightclub, the judge found that the complainant's blank expression and lack of "response to stimuli" in the hotel video showed a marked change — and the accused ought to have known that the woman was in no condition to consent to sex.
There are no reliable statistics surrounding conviction rates connected to sexual violence and alcohol. The conviction rate on all sexual assault cases in Canada is only 45 per cent — the second lowest among violent crimes.
But it's very likely the conviction rate would be even lower in cases where a complainant has been drinking, Osgoode Hall law professor Lisa Dufraimont said.
"Because in those cases you're so likely to have a situation where the evidence is deemed unreliable or, in fact, there is no evidence at all because they don't remember what happened."
That's why the increasing number of cameras — both for security purposes and social media — will lead to the inclusion of video evidence likely becoming more commonplace in sexual assault cases, she said. It's already introduced regularly in court as evidence in other forms of violent crime, most notably in robberies.
Dufraimont said, if prosecutors began using video to more regularly corroborate witness testimony in sexual assault trials, it could prompt more people to report being the victim of sexual violence.
"Any time that a conviction is obtained in a difficult case like this it adds to the sense that it's possible to get convictions, that it's not a complete lost cause to go to the police," she said. "Of course, it's just one case — and you'd need to have a body of cases to have a bigger impact."
'A starting point'
Video surveillance has been used in another prominent sexual assault trial in Toronto in 2014. In that case, the two men involved were acquitted of sexually assaulting a 23-year-old woman.
The judge in that case found that video of the woman leaving the club and entering a hotel did not show obvious signs of impairment, The Toronto Star reported at the time.
That's why the legal director at the Barbra Schlifer Commemorative Clinic, which offers free legal advice to sexual assault complainants, says she considers Friday's ruling simply a starting point.
Deepa Mattoo says counsel at the clinic already advises complainants about the possibility of getting police to look for video, but she warns there can still be bias in how that evidence is interpreted.
Mattoo says it's critical for complainants to understand that any video evidence the Crown receives must also be disclosed to the defence.
"We're seeing a welcome shift in the system," she said Friday. "But it does not solve the problem that women are routinely not believed."