Is there less rape these days?

[Barrister]

After all, it's not like you're arguing with some guy from Russia or Rhodesia or something.  I would imagine that BB has a much better idea of the current state of Western legal thought than you do.

Outside debates like this, I would be inclined to agree. When he says he would be willing to prosecute someone for rape when the victim does not even remember being raped, I wonder.

A case like that can be one of our strongest cases.  See the discussion above - someone who is unconscious can not consent.  So as long as we have DNA proving sex that is.

I have a weird open file like that.  Woman wakes up the next morning.  She is wearing pants, but not the panties she went to bed with.  They find the panties in an outside garbage can.  She does not remember having sex with anyone, but is convinced she was raped.  I am a little sceptical myself, but the rape kit is done and semen is detected.  It's not her boyfriend.  We identiy one other person in the house as a suspect.   DNA exonerates him.

File is still open, with no further suspect identified.  But if we get a DNA match on someone their conviction is almost guaranteed.

[Barrister]

BB, if someone has a history of claiming rape can defense bring that up at trial?

Depends on what you mean "claiming rape" I suppose.

If someone had a history of claiming rape, but then recanted, yes absolutely.

But otherwise, well no, not likely.  How can you tell she wasn't raped in the past?  Honestly someone who puts themselves in a vulnerable position to be raped is likely to put themselves in that situation multiple times.

[Berkut]

The only standard for bringing a case is the reasonable chance of a conviction?

No ethics involved in this, no discretion, no judgement on your part?

So lets see - you have a case where in fact you know that the accused did not commit the crime, but at the same time, you are pretty sure you can convict them anyway. You would try that case, since "you are not the judge" and as long as you have a reasonable chance of conviction you are bound to bring it?

In other words, as long as you think you can convince a jury to return a guilty plea, whether the person actually did anything isn't really all that important?

How do I "know" that the accused didn't commit the crime?  If there's hard evidence proving the person's guilt I have an obligation to disclose that to defense, and therefore I can't see how there would be a reasonable prospect of conviction.

Who knows. Maybe the evidence isn't that hard - or that it is not admissable, or you are certain you could get it thrown out or ignored by the jury.

Are you saying if it was merely my opinion?  Would I prosecute someone who I think is innocent, or who I just have no opinion on?  Yes.  My opinion, as long as its mere opinion, is largely irrelevant.  I am not a second judge.  I have a duty to present cases to the trier of fact.  It is not my job to get convictions, it is my job to present cases.

Wow, for someone whose job doesn't involve getting convictions, you sure seem to worry a lot about getting convictions, as does every other DA I have ever known - but then, I can't say I've met one who would say that they think they should imprison and try people based on the word of someone who cannot even remember a crime being committed.

But this is touchy stuff.  Why would I think the person is innocent?  If it is because the complainant gives a sketchy version, and I think the judge will have trouble swallowing it, then maybe there's no reasonable prospect of conviction.

Why? Nice emotive victim, maybe the accused is a big asshole with a record, whatever. The justice system is not so perfect that it is all that hard to come up with a scenario.

I don't think it should be that touchy - a DA is a representative of the State, and as such, IMO, has an obligation to "play fair" and be reasonable not shared by the defense. The idea that the DA should just present cases, whether the evidence is reasonable or not is rather distressing, considering the damage done by even the formal accusation and trial.

But I have to keep going back to the prospect of conviction test.

A necessary, but not sufficient, condition to indicting, IMO.

[Barrister]

I'm not quite sure what to tell you Berkut.  I'm just trying to repeat what the law and policy is.

Maybe I should just link it to you:

http://www.ppsc-sppc.gc.ca/eng/fps-sfp/fpd/ch15.html

Some exceprts:

15.3.1 Sufficiency of the Evidence
In the assessment of the evidence, a bare prima facie case is not enough; the evidence must demonstrate that there is a reasonable prospect of conviction. This decision requires an evaluation of how strong the case is likely to be when presented at trial. This evaluation should be made on the assumption that the trier of fact will act impartially and according to law.

A proper assessment of the evidence will take into account such matters as the availability, competence and credibility of witnesses and their likely impression on the trier of fact, as well as the admissibility of evidence implicating the accused. Crown counsel should also consider any defences that are plainly open to or have been indicated by the accused, and any other factors which could affect the prospect of a conviction; for example, the existence of a Charter violation that will undoubtedly lead to the exclusion of evidence essential to sustain a conviction. Crown counsel must also zealously guard against the possibility that they have been afflicted by "tunnel vision," 4 through close contact with the investigative agency, colleagues or victims, such that the assessment is insufficiently rigorous and objective.

15.4 Irrelevant Criteria
the race, national or ethnic origin, colour, religion, sex, sexual orientation, political associations, activities or beliefs of the accused or any other person involved in the investigation;
Crown counsel's personal feelings about the accused or the victim;
possible political advantage or disadvantage to the government or any political group or party; or
the possible effect of the decision on the personal or professional circumstances of those responsible for the prosecution decision.

You seem to (and correct me if I'm wrong) over-react to certain things I am saying.  I say that my personal opinion of the case doesn't matter, and you conclude I'll run cases where I know the accused is innocent.  I say I may run a case with an unconscious victim, and you conclude that is improper.

There are few absolutes in this business.  All I can do, and in every case, is match the evidence against the criteria in the Deskbook.

By the way one of the few absolutes that does exist is s. 274 of the Criminal Code, which states that when charged with a sex offence "no corroboration is required for a conviction and a judge shall not instruct the jury that it is unsafe to find the accused guilty in the absence of corroboration".

[Berkut]

Define corroboration for me here.

So is this an open and shut case - she says she was raped, even if she doesn't remember, so she was raped? Far from being astounded that you would bring such a weak case, in fact this is almost airtight, since "no cooroboration" is needed?

I would argue (froma laymans perspective, of course) that charging someone with rape under the circumstances you described would betray a tunnel vision and lack of rigiorous assessment. You said you did not know if you would get a conviction - nor is it your job to determine that - but the book very much says you should have a reasonable chance of conviction, which seems to rather clearly state that you should have a pretty good reason to think they actually committed a crime - ie some actual evidence that a crime was committed.

Your example specifically precludes any actual evidence of a crime - the victim does not even claim she recalls the crime. You only evidence is that she says she doesn't THINK she would consent.

I am rather dumbfounded that that could meet the criteria you just stated, unless in fact it is teh case that the only thinkg you need to get a rape conviction is a victim claiming they think they might have been raped, but even they don't know!

[Barrister]

Back in an hour or so - off to court.

[Malthus]

Define corroboration for me here.

So is this an open and shut case - she says she was raped, even if she doesn't remember, so she was raped? Far from being astounded that you would bring such a weak case, in fact this is almost airtight, since "no cooroboration" is needed?

I would argue (froma laymans perspective, of course) that charging someone with rape under the circumstances you described would betray a tunnel vision and lack of rigiorous assessment. You said you did not know if you would get a conviction - nor is it your job to determine that - but the book very much says you should have a reasonable chance of conviction, which seems to rather clearly state that you should have a pretty good reason to think they actually committed a crime - ie some actual evidence that a crime was committed.

Your example specifically precludes any actual evidence of a crime - the victim does not even claim she recalls the crime. You only evidence is that she says she doesn't THINK she would consent.

I am rather dumbfounded that that could meet the criteria you just stated, unless in fact it is teh case that the only thinkg you need to get a rape conviction is a victim claiming they think they might have been raped, but even they don't know!

I think you are missing the point - it doesn't say corroperative evidence is never to be used but merely that corroboration isn't required in all cases. That merely means that in a "she said/he said" situation, he doesn't automatically walk free if she can't produce some witness or other evidence that he raped her - he may still be convicted if the jury believes her and not him (unlike say the case under Islamic law, where you need 4 male witnesses to the rape).

In a situation where the victim cannot "say" because she was unconcious, but there is other evidence like DNA evidence, other witnesses, etc., clearly you could never reach the burden of proof without corroberative evidence. 

[Berkut]

Malthus, I am not sure what you mean - obviously other evidence could indicate that the accused committed the crime.

That is why I asked what exactly constituted "corroboration". What evidence is there that is NOT corroboration - the definition of the word as I understand it is in fact "other evidence". I think I may not have the correct definition however, at least in a legal sense.

The statute he cited seems to be saying that corroborative evidence is NOT necessary at all, her word is sufficient to convict absent any other evidence. But I think I am not understanding that correctly, since that seems simply preposterous.

In the scenario described, where there is certain evidence that person A had sex with person B, but no evidence that the sex was non-consensual beyond her claim that it could not have been, although she cannot remember, I do not see how one could reasonably establish that she was raped (beyond additional convincing data about her) enough to justify even cahrging the guy, much less proving it beyond a reasonable doubt.

I suppose this would inevitably get into a very nasty examination of the victim lifestyle - the only way you could convince me if I was on a jury would be convincing me that there was no possible way she would ever consent to such a thing, which would be very hard to do.

[Malthus]

Malthus, I am not sure what you mean - obviously other evidence could indicate that the accused committed the crime.

That is why I asked what exactly constituted "corroboration". What evidence is there that is NOT corroboration - the definition of the word as I understand it is in fact "other evidence". I think I may not have the correct definition however, at least in a legal sense.

The statute he cited seems to be saying that corroborative evidence is NOT necessary at all, her word is sufficient to convict absent any other evidence. But I think I am not understanding that correctly, since that seems simply preposterous.

In the scenario described, where there is certain evidence that person A had sex with person B, but no evidence that the sex was non-consensual beyond her claim that it could not have been, although she cannot remember, I do not see how one could reasonably establish that she was raped (beyond additional convincing data about her) enough to justify even cahrging the guy, much less proving it beyond a reasonable doubt.

I suppose this would inevitably get into a very nasty examination of the victim lifestyle - the only way you could convince me if I was on a jury would be convincing me that there was no possible way she would ever consent to such a thing, which would be very hard to do.

It is possible to convict based on "her" word alone. Not easy, but possible. You still have to meet the burden of proof of course, and that may be difficult to do.

Consider child sex abuse cases - very often they are not prosecuted until years later. There is no physical evidence that the abuse took place. Other than the say-so of the victim.

Now, there is no question that such cases can be problematic (think "recovered memory" and all that). But if corroberation were required, you could never convict in such cases - which would also be unjust. 

Now, it *used* to be the case that you *did* need corroberation in cases of rape and incest. Here's a case of an 85 year old Indian dude accused of humping his 15 year old granddaughter in 1982. It turns on exactly this difference - under the "old" rules in place at that time you would need corroberation, and he'd walk scot-free without a trial; now, it gets sent to trial.

On application for prerogative writ:

http://www.canlii.org/eliisa/highlight.do?text=%22no+corroboration+is+required+for+a+conviction%22&language=en&searchTitle=Search+all+CanLII+Databases&path=/en/sk/skqb/doc/2004/2004skqb116/2004skqb116.html

The accused is an 85-year-old status Indian charged under s. 150 of the Criminal Code with three counts of incest involving his granddaughter. The offences are alleged to have occurred in 1982, when she turned 15 years of age. The only evidence at the preliminary inquiry was the testimony of the granddaughter who was about 35 years old at the time of the hearing. It is acknowledged there was no corroboration of her testimony. On the grounds that the presiding justice lacked jurisdiction to commit because of the absence of corroboration, the accused applies by way of certiorari to quash the order that he stand trial.

On Appeal:

http://www.canlii.org/eliisa/highlight.do?text=%22no+corroboration+is+required+for+a+conviction%22&language=en&searchTitle=Search+all+CanLII+Databases&path=/en/sk/skca/doc/2005/2005skca21/2005skca21.html

[Berkut]

How can you meet the burden of proof on her word alone though? I don't see how it is possible.

Why does the law exist stating that corroboration is necessary for every other kind of crime, except to make sure that you CANNOT reach a burden of proof without it?

This law seems to just say "Hey, all that burden of proof stuff doesn't count as long as the crime is a sexual offense - just go with whoever sounds more convincing!".

Frankly, if I were on a jury, I cannot imagine how I would EVER convict someone of rape in a case like the one you describe. I realize that means a lot of people who ought to be in jail will not be, but I don't think the rules should be different for rape than any other crime.

Why not regular assault? Why can't I get my uncle tossed in jail for hitting me 20 years ago, on my word alone? But I can get him tossed in jail if I say he sexually abused me? How is that reasonable?

[Malthus]

How can you meet the burden of proof on her word alone though? I don't see how it is possible.

Why does the law exist stating that corroboration is necessary for every other kind of crime, except to make sure that you CANNOT reach a burden of proof without it?

This law seems to just say "Hey, all that burden of proof stuff doesn't count as long as the crime is a sexual offense - just go with whoever sounds more convincing!".

Frankly, if I were on a jury, I cannot imagine how I would EVER convict someone of rape in a case like the one you describe. I realize that means a lot of people who ought to be in jail will not be, but I don't think the rules should be different for rape than any other crime.

Why not regular assault? Why can't I get my uncle tossed in jail for hitting me 20 years ago, on my word alone? But I can get him tossed in jail if I say he sexually abused me? How is that reasonable?

Your premise is incorrect: only two crimes -  treason and perjury - require corroboration these days.

47. (1) Every one who commits high treason is guilty of an indictable offence and shall be sentenced to imprisonment for life.

Punishment for treason

(2) Every one who commits treason is guilty of an indictable offence and liable

(a) to be sentenced to imprisonment for life if he is guilty of an offence under paragraph 46(2)(a), (c) or (d);

(b) to be sentenced to imprisonment for life if he is guilty of an offence under paragraph 46(2)(b) or (e) committed while a state of war exists between Canada and another country; or

(c) to be sentenced to imprisonment for a term not exceeding fourteen years if he is guilty of an offence under paragraph 46(2)(b) or (e) committed while no state of war exists between Canada and another country.

Corroboration

(3) No person shall be convicted of high treason or treason on the evidence of only one witness, unless the evidence of that witness is corroborated in a material particular by evidence that implicates the accused.

132. Every one who commits perjury is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.

R.S., 1985, c. C-46, s. 132; R.S., 1985, c. 27 (1st Supp.), s. 17; 1998, c. 35, s. 119.

Corroboration

133. No person shall be convicted of an offence under section 132 on the evidence of only one witness unless the evidence of that witness is corroborated in a material particular by evidence that implicates the accused.

The reason the section on sexual assaults specifically state that corroboration is not required is historical: those offenses used, in the past, to be treated specially - like treason and perjury are now - in holding that corroboration was required.

In short, your uncle can get convicted of regular old assault 20 years ago just as easily as sexual assault 20 years ago. In the past that wasn't true - you could convict him of assault but *not* of sexual assault.

Again always presuming you could meet the burden of proof.

[Berkut]

Hmmm. But again, how could you meet the burden of proof absent corroboration, in a practical sense? Could you imagine me getting that conviction against my uncle strictly based on my own testimony, without ANY other evidence? Seems rather unlikely.

I understand the distinction now at least, and given the historical nature of rape, that does make sense. Indeed, it is kind of an empty statute, in that it doesn't really create new law, just makes it explicit that there is no such exception. Thanks for clarifying that.

[Barrister]

How can you meet the burden of proof on her word alone though? I don't see how it is possible.

Why does the law exist stating that corroboration is necessary for every other kind of crime, except to make sure that you CANNOT reach a burden of proof without it?

Here's the thing - corroboration isn't required on any kind of crime.

Edit: Malthus is correct - treason and perjury still have that rule.  They are very much the exception.

Sexual offences used to be the oddball - it was the only area where corroboration was required.  I'm afraid I can't define corroboration in this context well - back in the day there were tons of cases on what did, or did not, constitute corroboration.

But they decided that since that was the only crime with that requirement it was based on some fairly anti-female stereotypes, the rule for corroboration was done away with in 1981 or so.  As such I've never been trained or researched that area of law.

But as Malthus says just because it isn't required doesn't mean it isn't hugely helpful.  In prosecuting a sex crime I try to find anything I can that would tend to corroborate the victim's story.  But it isn't required.

All crimes get the same burden of proof - beyond a reasonable doubt.  It's a hard burden in every single case.  And it has little to do with "whomever is more believing".

There's a famous SCC Case called Regina v. D. (W.) dealing with he shaid/she said type cases.  The test to be applied is as follows:

1. If you believe the accused you must aquit.
2. If you do not believe the accused, but are left in some doubt based on what the accused said, you must aquit.
3. Even if you disbelieve the accused, you must still be satisfied by all of the remaining evidence that the accused committed the offense beyond a reasonable doubt.

As you might guess, it's step 2 that gets tricky for the judge.  It's awfully hard to entirely reject someone's story.

[Malthus]

How can you meet the burden of proof on her word alone though? I don't see how it is possible.

Why does the law exist stating that corroboration is necessary for every other kind of crime, except to make sure that you CANNOT reach a burden of proof without it?

Here's the thing - corroboration isn't required on any kind of crime.

Sexual offences used to be the oddball - it was the only area where corroboration was required.  I'm afraid I can't define corroboration in this context well - back in the day there were tons of cases on what did, or did not, constitute corroboration.

But they decided that since that was the only crime with that requirement it was based on some fairly anti-female stereotypes, the rule for corroboration was done away with in 1981 or so.  As such I've never been trained or researched that area of law.

But as Malthus says just because it isn't required doesn't mean it isn't hugely helpful.  In prosecuting a sex crime I try to find anything I can that would tend to corroborate the victim's story.  But it isn't required.

All crimes get the same burden of proof - beyond a reasonable doubt.  It's a hard burden in every single case.  And it has little to do with "whomever is more believing".

There's a famous SCC Case called Regina v. D. (W.) dealing with he shaid/she said type cases.  The test to be applied is as follows:

1. If you believe the accused you must aquit.
2. If you do not believe the accused, but are left in some doubt based on what the accused said, you must aquit.
3. Even if you disbelieve the accused, you must still be satisfied by all of the remaining evidence that the accused committed the offense beyond a reasonable doubt.

As you might guess, it's step 2 that gets tricky for the judge.  It's awfully hard to entirely reject someone's story.

Psst - Treason and Perjury. Both expressly require corroboration.

[Berkut]

But I don't understand how you can ever meet the third criteria in the case in question, since there isn't any remaining evidence! You are going solely on the word of the victim, and in this case the victim is not even saying she remembers being raped!

This is even weaker than "He raped me, I told him to stop and he would not" norm that as I understand it is pretty hard to get a conviction out of.