What you need to know about a Supreme Court ruling on sexual history as evidence

The Supreme Court of Canada (SCC) determined this Wednesday that the defendant in a sexual assault case, R v RV, should have been allowed to ask “limited questions” about his accuser’s sexual history. The case found RV, a 20-year-old, responsible for the sexual assault of his 15-year-old cousin.

The ruling in R v RV marked the SCC’s third decision this year on a 1992 law designed to protect people who have come forward with accusations of sexual violence from being questioned about their sexual past during a trial. Some members of Canada’s legal community believe this week’s decision will help clarify when and how the law should be used to both protect sexual violence complainants in court and uphold the accused’s right to a just trial.

Justice and sexual bias

Colloquially known as a “rape shield” law, Section 276 of the Criminal Code limits what criminal defence teams can say about a complainant’s prior sexual history as evidence in court. The idea: a person’s sex life shouldn’t be used in a way that might appeal to social biases about sex and gender, intentionally or otherwise. In essence, Section 276 guards against the kind of implicit slut-shaming that might sway a jury’s favour, or that otherwise discourages survivors of sexual violence from pursuing legal recourse.

But some legal scholars have argued that clumsy interpretations of the law have prevented relevant evidence from being considered in court, disallowing the accused a full and fair defence. Faulty applications of Section 276 also risk reinforcing binary, stereotypical notions of what constitutes as appropriate or relevant sexual behaviour, potentially framing a complainant’s past casual or non-exclusive sexual relationships as a detriment to the person’s credibility. In short, rape shield laws are as messy to implement as they are important to have in place — which is why Wednesday’s SCC decision, particularly alongside another Section 276 decision in late June, has people’s attention.

One month, two pivotal cases

There’s a lot going on in Section 276, but the law can be boiled down into two basic sets of requirements. First, the defence needs to identify the specific instances of past sexual activity it wants to ask a claimant about, with precision. Second, the defence has to show they’re asking for purposes that are permissible in court.

Wednesday’s decision in R v RV, specifically speaks to the first set of requirements. A June decision, on the case of R v Goldfinch, helped delineate the latter: what counts as a permissible circumstance for delving into a claimant’s sexual history.

In the Goldfinch case, the SCC determined that a jury should not have heard that an accused person and a complainant in a sexual assault case were “friends with benefits” prior to the instance of alleged sexual assault. Though Goldfinch was found not guilty in an initial trial, the high court ruled that a past sexual relationship cannot be used to infer consent and ordered a new trial. Only “yes” means yes. And a previous “yes” does not provide blanket consent in future encounters.

In this week’s decision in R v RV, a 15-year-old girl accused her 20-year-old cousin (RV) of a sexual assault, which RV denied. Around the same time, the girl became pregnant. The girl said that she had been a virgin prior to the assault which, in conjunction with the pregnancy, was raised as evidence against RV.

The trial judge allowed the defence to ask the girl if she was telling the truth about having been a virgin, and what she thought “virginity” meant. But RV was not allowed to ask whether anyone else could have made her pregnant. RV was ultimately found guilty of the crime, and the decision was successfully appealed in the Court of Appeal.

On Wednesday, SCC judges unanimously determined that the initial trial judge should have agreed on what could be said about sexual history, and how RV could challenge it, before the Crown introduced the evidence. They also determined, in a decision 5-2, that the additional leeway would not have changed the verdict: “the scope of permissible cross-examination would not have been any broader than the questioning that actually occurred.” In other words, it’s not necessary for the defence to get intrusive about a claimant’s sexual past in order to get at the truth about an alleged sexual crime.

Moving forward

The decisions in RV and Goldfinch round out a clear new precedent for sexual history admission in cases. Sexual history cannot be used to determine consent, and it’s up to the trial judge to decide whether specific questions about someone’s past sexual activity provide necessary context for getting at the truth.

The decision has already sparked discussion on social media. Emma Cunliffe, a professor at the University of British Columbia’s Allard School of Law, tweeted on Wednesday: “Overall, I am thoroughly glad to see that the #SCC has now . . . set out very clearly when and how s. 276 must be applied, and what responsibilities Crown, defence and [trial judge] hold in relation to these rules.”