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Sexual assault conviction rate and timely reporting linked: Moon

A Statistics Canada report that found only one in 10 sexual assaults disclosed to police results in a conviction underscores that the timeliness of the reporting is one of the biggest determinants of the success of such prosecutions, says Brampton criminal lawyer Michael Moon.

“If a complainant holds off going to police for days, weeks or months, then the chances of success for the prosecution decline precipitously,” he tells AdvocateDaily.com.

Moon, founder and director of the Brampton boutique criminal and constitutional firm Moon Rozier L.P.C, says a delay in reporting — for any crime — can go against someone’s credibility. Asking why anyone would wait to disclose a serious crime is a “legitimate ground of cross-examination at a trial,” he adds.

StatCan's study surveyed the number of sexual assault allegations that police deemed as founded between 2009 and 2014, says the Canadian Press. Of those, the agency said only 12 per cent, or about one in 10, resulted in a criminal conviction, says the wire service.

It also found that only 49 per cent of substantiated sexual assault complaints even went to court, says the article. 

“StatCan contrasted these rates with similar figures for physical assaults, which are nearly twice as likely to both make it through the justice system and secure a conviction," CP reports. "About 75 per cent of physical assaults proceed to court after charges are laid, and 23 per cent of substantiated claims result in conviction, StatCan said.”

Moon says there’s more to it than the numbers.

“If we were to just reduce it to analytics, the timeliness of the complaint means a significant difference in the success of a prosecution,” he says. 

But Moon says that telling a complainant about the need to come forward early with allegations ignores the social and emotional component of the circumstances.

“It may be difficult to go to police," he says. "There’s a complex list of considerations that may delay the reporting.” 

Moon says the challenging part of prosecuting sexual assaults lies in the reality that the offences generally occur in situations of intimacy where the only people present are the accused and the complainant — there are no other witnesses. As a result, these matters most often come down to a he-said-she-said type of dichotomy that makes it difficult to prove, he adds.

It’s also important to point out, Moon says, that an accused doesn’t have to prove their innocence; the Crown has to prove they are guilty. The accused doesn’t even have to call evidence, he adds. 

“If the accused says, ‘I had a mistaken belief in consent,’ the Crown has to prove beyond a reasonable doubt that the accused didn’t have a mistaken belief.”

And that can be challenging to prove, he adds. That being said, Parliament and the courts have recognized there is a specific dynamic in play on sexual assault cases. 

"Parliament has legislated measures that deal with the particularities of sexual assault cases," he says, for example, to eliminate evidence of prior sexual activity on the part of the complainant unless there is some specific probative value to such information. 

Moon says it’s a function of the justice system and the circumstances around sexual assaults that the conviction success rate is what it is.

“The criminal justice system is a fairly blunt instrument,” he says. “It’s binary. It’s either guilty or not guilty. There are no grades in between.” 

Making a complaint of sexual assault can’t be enough for a conviction, Moon says. A complaint has to go through the crucible of a trial to be tested in order for a conviction to be registered, he adds.

“If not, the right to a fair trial is taken away,” Moon says.

“It would appear to be a near-impossible dilemma to resolve. On the one hand, you have complainants who in their minds, have legitimate complaints. On the other side, you have the accused who says, ‘Well no, I didn’t sexually assault that person. I had no intention of sexually assaulting them. I thought it was consensual sex.' So how do you reconcile those?

“And it is important to note that just because a trial doesn’t register a conviction, that does not mean that the complainant wasn’t believed. It may not have been enough.”

Moon notes that when judges analyze the evidence in any criminal case, including sexual assault, they have to apply a three-part test.

“First, if they believe the accused, they must acquit,” he says. “Second, if they don’t believe the accused, but it could reasonably be true, they must acquit. And finally, if they reject the accused’s evidence entirely and are convinced beyond a reasonable doubt on the balance of the evidence, then the accused is guilty.”

This means the judge can believe a complainant but also accept or have a reasonable doubt about the evidence of the accused, Moon says.

“And in that case, the tie goes to the accused,” he says. "It is not a matter of choosing one side over another. The burden is, as it always has and must be, "proof beyond a reasonable doubt.

“It’s not as linear as many would believe. We must recall that it is always the Crown's burden to prove its case beyond a reasonable doubt, and as a fundamental principle of the criminal justice system, it is accepted that it is better 10 guilty people go free than one innocent person be convicted.”

The low prosecution rates for sexual assaults doesn't mean that the justice system is failing, Moon says. 

"And it has to be remembered that the criminal justice system is based on the presumption of innocence of the accused, not of the truth of the complainant."

 

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