Different ethical rules for lawyers dealing with sex crime

Law professor Elaine Craig says defence lawyers have an ethical duty to stop using arguments based on past sexual history, "provocative dress", and lack of physical resistance to get their clients acquitted of sexual assault charges - even though those tactics are often effective.
Should there be a different set of ethics for sex assault trials? (Kate Rutherford/CBC)

Last month, Crown lawyers filed an appeal to overturn the decision in an Alberta sexual assault case. 

They argued that "sexual stereotypes and stereotypical myths, which have long since been discredited, may have found their way into the trial judge's judgment." The case will now go to a new trial. 

According to Dalhousie law professor Elaine Craig, myths about sexual assault are all too common in Canadian courts -- but often, they're being perpetuated by defence lawyers who try to use a complainant's past sexual history or lack of physical resistance to get their client acquitted. 

Craig argues that even though those tactics are often effective, defence lawyers have an ethical duty to stop using them. 

The full interview is available in the audio player above. The following portions have been edited for clarity and length.

What arguments and tactics do you think defence lawyers should stop using in these cases?

If we could have defence lawyers refrain from triggering stereotypes with respect to social assumptions that have actually already been legally rejected...We have in Canada very progressive rape shield provisions in our Criminal Code, which create legal responsibilities on the part of trial judges, and I would argue ethical responsibilities on the part of defence lawyers, not to rely on a complainant's prior sexual activity in order to trigger these out-dated stereotypes -- like the stereotype that women who are "loose" are probably lying when they allege rape, or that women who have consented to sex outside of marriage are likely to always consent to sex outside of marriage. Or that women who are unchaste are untrustworthy. 

So if our rape shield laws prevent those specific arguments being made at trial, what are you alleging - that they're sort of being inferred or alluded to by defence lawyers? 

Well, I think both happen, in fact. So, sure, in some circumstances those types of inferences are indirectly triggered through the way in which they cross-examine a complainant, or through the types of physical evidence that they lead -- for example, a picture that they introduce where they're introducing it ostensibly for one purpose, but in fact, in reality, they want to make sure the jury or the trial judge has a look at how "provocatively" the complainant is dressed.

But I think that...well, I don't think, I can think of a variety of examples from trial transcripts that I've ready where defence lawyers are doing it explicitly. It arises in the case released by the Alberta Court of Appeal last week in Wagar... Wagar was a good example where we have a trial judge -- and I'm not commenting on whether the acquittal was well-founded -- but we have a trial judge who in the process of providing that acquittal asked the complainant a series of very problematic questions that were clearly informed by that stereotype, right? Why didn't you just keep your knees together? You haven't explained why you let the sex happen if you didn't want it to. Unfortunately, there has to be a reason why defence lawyers -- some defence lawyers, I should say -- continue to invoke these kinds of problematic assumptions, and I think the reason is that they continue to be strategically successful. 

If these tactics are effective, then how do you respond to the argument that I'm sure you hear from defence lawyers, that they would be knowingly sabotaging their client's chance of an acquittal if they chose not to use those arguments? 

The thing is, defence lawyers perform an incredibly important role. At the same time, individuals do not have a right to any defence. Individuals do not have a right to rely on stereotypes that have been considered, or deemed, empirically unfounded in order to pursue a defence. While you have a constitutional right to due process, and a fair proceeding, and any legitimate defence within the bounds of law, there is no constitutional right to all defence at any cost. And so what I would say to defence lawyers who offer that argument is...It isn't inconsistent with your duty of loyalty to your client to refuse to trade in these types of stereotypes or engage in these types of strategies. It isn't inconsistent with your obligations to your client because your client doesn't have a right to those types of tactics. 

Click the blue button above to listen to the full interview.

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