The Canadian government gave priority to a woman’s respect and credibility, especially when she becomes a victim of a sexual assault case or a rape case.
The rape shield law is there to protect their prior sexual history and for the defendant to present necessary evidence for his defence.
The government has made several editions of this rape shield law. This article provides a detailed discussion about rape shield laws in Canada. Read on to learn.
What Is Rape Shield?
A rape shield is a law or statute which states that there will be limited use of the accuser’s sexual information or history during the trial of a rape case.
Generally, in a rape trial, the defendant often suggests checking out the sexual history of the accuser so that they can get the actual information about the incident. But it is very much shameful and discredited for the accuser in front of the court.
That is why the rape shield laws have been established to limit this opportunity of asking the accuser about his sexual history in the trial room.
History of Canadian Rape Shield Laws
Rape laws in Canada have a long history. The Canadian government introduced this rape law in 1983 for the first time. So many purposes were responsible behind this establishment, but victim reporting was one of the major purposes.
The government also encouraged the concept that sexually active women are normally not that much trustworthy. In this regard, another legal provision the court thought to introduce was section 276.
For rape cases in Canada, the rape shield law, after getting introduced in 1983, once got stuck in 1991. It was because the court found the defence mechanism a bit arduous and complicated.
First, it was just federal law, and later on, through several revisions and changes, it became a constitutional law.
Subsequently, the revised law demanded that nobody could use the victim’s past records of sexual stability as defence evidence, except in some limited cases where it was badly necessary.
In the previous section, you have already read the name of the legislation, ‘section 276’. Section 276 is a Canadian state law that maintains all the evidence used for sexual assault cases in Canada.
On the one hand, this section supports the court’s purpose of seeking truth and, on the other hand, tries to protect the victim from further mental trauma.
When the first edition of this section was introduced officially, it strictly prohibited using evidence that used the victim’s past history of sexual life. This prohibition included three exceptions for the sake of justice. These exceptions were:
- The prosecution needs to transform the victim’s sexual history into solid evidence since it is badly necessary for justice.
- When there is a great confusion or debate on the victim’s identity, their sexual history gets used as strong evidence of their identities.
- When the defendant relies upon the fact that some other incidents happened on the same day other than this assault, in that case, the history accuser can use to detect the truth and remove disbelief.
Later on, the government and the court made several changes in this section, especially in these exceptions. They edited the exceptions and transformed them into general inferences.
What Are the Twin Myths?
Twin myths are in use in the sex laws in Canada. It implies the sexual history of a victim of a sexual assault case. The twin myths refer to two major misconceptions of the people and the government about the victim of a sex assault case.
The first one is that sexually active women might have their consent in sex. So, there is little possibility of sexual harassment cases with them as they are willing to participate.
The second one is that sexually active women are not that credible compared to the women who are not sexually active. The court often sees these women as promiscuous.
Why Is the Rape Shield Law Necessary?
The rape shield law is immensely necessary as it resists the prosecution from dealing with a victim’s sexual history and works for their credibility.
And this law encourages sexual assault or raped victims to come to the police and report against the accused.
But in general, when a victim reports against an accused of sexual harassment, she has to go through a very embarrassing situation where the court asks her questions about her sexual history and the incidental details.
Again, victims often have to go through cross-examination in court, which is also disrespectful for them.
With the establishment of this rape shield law, victims get a reliable platform to make reports against the accused ones without fear of facing embarrassing questions about their sexual history.
How does the Rape Shield Law Work?
Canadian criminal code sexual assault made this rape shield law in action in 1991 with the consent of the Canadian parliament.
According to this law, if a defendant wants to use the victim’s prior sexual history as substantial evidence for the case, he has to submit a written application to the court in this regard.
Then the court will think about this issue whether it is necessary or not. Based on this, the court will give consent. If it is essential to know the victim’s prior sexual history for the case, the court might allow it, otherwise not.
Should the Rape Shield Law Be Expanded?
Rape shield law basically protects a woman’s credibility by not using her sexual history as evidence for the defendant’s defence.
Some lawyers and critics of this law have consented that this rape shield law should be expanded to some extent.
For example, still, the victims have to go through a cross-examination where they have to face some embarrassing questions about the rape incident.
Like- how was the woman’s dress during rape or assault, if she took any alcohol or not, if she wore any questionable or sex arising dresses or not and many more. These are questions a woman should not face anymore.
The rape shield law should make a proper balance where a woman’s sexual history will not get used as evidence, yet the defendant will make defence from his side without hurting the victim’s credibility.
Finally, this article provides all the crucial details about rape shield laws in Canada. Sexual harassment Canada’s criminal code is rigorous for the defendants and tries to protect the victim’s credibility.
If facing any such situations in your own life, contact a professional criminal defence lawyer to assist you throughout the entire process.