The Canadian Supreme Court has set a precedent that could have disturbing implications. Imagine a man is being accused of rape by a woman. There are a lot of people who want to automatically believe the woman's accusations without any additional evidence, and would send the man to prison. If a man were facing accusations like that, what is the only possible evidence he could show to be able to prove he was innocent? Did you know a court does not have to allow him to show that evidence? The judge might not allow the jury to be able to see or know about this evidence. This sounds insane, but apparently there is no absolute requirement that a judge has to let the defense be able to show the jury this evidence in a trial. The man being accused could have a video recording of the sex act taking place, which he believes would help his defense if shown. But a judge might not allow it to be shown. And now, in Canada, the judges will no longer allow that evidence to be used to surprise accusers on the witness stand, to try to catch them in a lie. It's already very difficult to be able to prove a man is innocent or catch a woman making false accusations. By forcing the defense to have to lay down all their cards on the table before the start of the trial, it will just make it even more difficult. notonrecordpodcast (@notonrecordpodcast) | TikTok The crazy new rules for submitting evidence in sex assault cases "Just to be clear, if you have a video of the sex act you're being accused of, in terms of a sexual assault, if you had a video of that, you might not be allowed to use it. Because now they've changed it." "It was immune, if it was the actual subject matter of the charge." "And what used to be immune from this type of scrutiny was evidence specifically related to the complaint. So that particular act that's alleged. So that's what we call 'the subject matter' of the charge. For example, if there was a video for some reason of that particular act, and the defense thought that that video showed that there was consent..." "...or simply it didn't occur in the way it was described..." "...you didn't have to vet that because it's subject matter of the offense. But the Supreme Court says we do." EP#45 | The Trouble With Historic Allegations, "Not on Record" series EP#30 | New Rules of Evidence Criminal Defence Lawyer Joseph Neuberger, and YouTube personality, legal researcher and host of the UnTrue Crime podcast Diana Davison, discuss the aftermath of their trials and the emerging and alarming changes to our legal system. "The supreme court expanded in this case what a record is... So let's say the allegation is somebody has been dating for about two months they went out on a date they had intimate relations that night the complainant thought she was sexually assaulted, but they have communications afterward and the communications say "I had a great night, dinner was wonderful, I loved our time together, um, you know, you were such you were so hot in bed, thank you so much you were wonderful, I really love being with you...", and there's this exchange, but then afterward comes this complaint saying that I was sexually assaulted. and that is... the communications are about that particular date, that particular night, that particular sexual encounter for which the complainant, which is called the subject matter the charge, says was a sexual assault. It used to be up until this decision that when you could pinpoint it directly to the allegation, that is not captured by this section of the criminal code." "What's supposed to be the strongest section, most protective section, 276, that covers sexual history and so on... So that's the thing that was supposed to be the most strictly governed evidence and it was immune, it was not captured by -- and it still isn't captured by -- 276." "Right but the supreme court of Canada has now said it's a 'record'. So if you have messages about the complaint, like about the sex that you had saying it was wonderful, I consented, it was great, you can no longer hold that back and cross-examine on it, that has to be disclosed. And you've got to think about that for a second, that's an extraordinary move by the supreme court of Canada." There are multiple legal reasons a judge could use as a justification to not allow evidence to be shown. The judge could decide the evidence would "prejudice the jury", that whatever the evidence shows is "irrelevant", or mostly irrelevant (even if it is not completely irrelevant), or certain legal jurisdictions may have special laws that can prevent certain evidence from being shown, such as "Rape Shield" laws, which are pretty common. Below are three stories where the judge prevented the jury from being able to see evidence that might have helped the accused in a rape case. Man falsely accused of Rape (Dec 14, 2022 in Women's Rights section) The jury was not allowed to hear about the fact that the woman currently accusing a man of rape had previously accused several other men of rape, including her own brother, or the fact that she had serious psychological and mental health issues and was a homeless drug addict and alcoholic, which could have explained a motivation to claim rape had occurred to be able to sue the rehab facility she had been in out of a desperation to get money. The judge cited the state's "Rape Shield" law in deciding to deny allowing the evidence, even though it was not clear under that law that this evidence should not be allowed. Trial of James Donald Anderson in 1989 in Oregon. Judge deciding what is "relevant", excluding evidence from trial (Jan 27, 2023 in Law & Justice section) New York eliminates statute of limitations for sexual crimes (several posts down in thread) Accusations of rape when evidence shows the woman was going to have sex with the man (Feb 15, 2023 in Law & Justice section) Professional boxer Mike Tyson's 1992 rape case. The jury was not allowed to hear the account of two witnesses that the woman had been seen sitting in Tyson's lap with her thighs wrapped around him, clearly indicating likely sexual interest, just a few hours before the alleged rape. Tyson ended up getting convicted. Jury was not allowed to read academic paper (Oct 27, 2022 in Law & Justice section) Judge dismissed the jury in the middle of the case and ordered a new trial, because one of the jurors had shown the others an academic paper. The academic paper was about "the unhelpfulness of trying to quantify how often false rape accusations were made", which examined the statistics of rape accusations in other cases and tried to mathematically analyze them to draw conclusions to help improve the decision-making process in rape cases. It involved a high profile case where the rape had allegedly taken place in the Australian Parliament House and the accused was a senior advisor of the Australian Liberal Party.
These same type of legal issues are also very relevant in other countries. If it has happened in Canada, there is a very likely probability these same sort of things could happen in other countries, or are already happening in some courtrooms in your country. I have noticed, made the observation in my years on these forums, that, when confronted with a societal problem, it is psychologically easier for people to try to come up with some quick rationalization why they don't need to worry it. Either not believing it is happening, not believing it could happen, viewing it as happening "somewhere else" so it has no relevance to them. Sometimes not believing it could be that bad, if authorities in charge have approved it, "faith in government". "There must be some good reason why this is happening." It's psychologically uncomfortable to be faced with a disturbing problem that's complicated and doesn't have a simple solution. The quickest way for the human mind to make that uncomfortable feeling go away is to dismiss it by finding a reason or excuse why you do not need to worry about it.
Perhaps true. But I can easily imagine a Canadian woman falsely accusing a Canadian man of rape, maybe after the sex didn't go so well, or she had felt somewhat reluctant in the first place and then he didn't act very nice to her afterwards, maybe trying to ditch her and not call her back after she had just given in to his advances. This change to the rules of evidence is motivated purely by Feminism. "Pro-women" in everything, even when it comes at the expense of men. "How dare a rape victim be shamed or embarrassed at a trial where she's accusing a man!"
You posted a lot of links but I did not see one to the Canada case. Is all of this all hypothetical? I was curious as to why they would not allow the video. Is it legal to make a video someone having sex without consent in Canada? If the video was made illegally in Canada would it not be like in the US where we do not allow recorded conversations without consent from two parties. There are some single consent states but the argument comes down to what evidence can be legally used. It would be like if the man beat a confession out of the woman and recorded it, the courts would obviously not allow it. You could argue in her confession she details plans and gave up concrete evidence to frame him but it still would be admissible because of how it was obtained. The other thing you mentioned is Canada no longer allows surprise evidence on the witness stand. Don't we also have these type of rules and call it the discovery process? I am not a lawyer but doesn't both sides have to disclose the evidence in advance to allow the other side to verify or scrutinize it? The male is protected by the same process too.
Okay, you want an example of something unfair in the U.S.? In a typical rape trial, the alleged victim or prosecutor can present evidence trying to show that the accused committed previous sexual assaults on other women, even though that has nothing directly to do with the specific case or criminal charges the man is now facing, and even though the man was never convicted of those other alleged instances of assault in the past. But the defense is often NOT allowed to present evidence trying to show that the woman previously accused other men of sexual assault in the past, or to try to show that the woman previously lied about sexual assault complaints, if she has not been previously convicted of the crime. So there are clearly some double standards at play. "In a criminal case in which a defendant is accused of a sexual assault, the court may admit evidence that the defendant committed any other sexual assault." (Federal Rules of Evidence, Relevance and its Limits, Rule 413. Similar Crimes in Sexual-Assault Cases) "In addition to the requirement of falsity, several states require or prefer either a pattern of prior false accusations or similarities between prior and current charges--or both--before prior false accusation evidence will be admissible. These states have recognized the importance of the falsity determination and have gone a step further in implementing a more nuanced relevancy determination. Colorado has interpreted its rape shield statute as requiring the defense to show that “the alleged victim made multiple prior or subsequent reports of sexual assault that were in fact false. All 50 states have adopted rape shields, victim-protective statutes passed in response to advocacy by the women’s movement of the 1970s. Rape shield statutes vary dramatically from state to state, but their primary common feature is a presumption against the admissibility of evidence of the victim's prior sexual conduct. Only eight states have rape shield statutes that specifically reference prior false accusation evidence. Arkansas's rape shield statute employs a different approach. Rather than enumerate a categorical exception for prior false accusation evidence, Arkansas’s rape shield facially excludes such evidence if the victim denies its falsity. [2 Ark. Code Ann. § 16-42-101(b) (2012) ("evidence of a victim’s prior allegations of sexual conduct with the defendant or any other person, which allegations the victim asserts to be true . . . is not admissible by the defendant, either through direct examination of any defense witness or through cross-examination of the victim or other prosecution witness, to attack the credibility of the victim, to prove consent or any other defense, or for any other purpose."] (Apparently courts have interpreted prior false accusations of sexual assault as being under the category of past sexual conduct, and thus not allowable as evidence.) ... Amanda B. Hurst criticizes this approach as being under-protective of defendants' rights." The article argues that prior false accusation evidence should not be able to be used against the victim. "... In order to succeed on a motion to admit prior false accusation evidence, a defendant must show relevance, falsity, and that the [evidence’s] ‘probative value is not substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. ... Thus, the fear that "the rape-shield statute contravenes the Sixth Amendment by restricting the defendant’s right to fully confront the witnesses against him" is arguably overblown. Indeed, the Arkansas rape shield's facial exclusion is an improvement on the enumerated exception approach because its presumption of inadmissibility advances the underlying policies, while its rape shield hearing provision provides a layer of protection for defendants. Like the Arkansas statute, Colorado's rape shield statute excludes prior false accusation evidence unless the defendant establishes the relevancy and materiality of the evidence during a rape shield hearing. Colorado's approach provides the added benefits of a high standard for falsity and a requirement that the victim have a "history of false reporting" before the evidence will be admissible. (In other words only one prior likely false rape accusation would not be enough) The rape shield statutes of most states do not specifically address prior false accusation evidence. In these states, case law dictates whether such evidence is covered by the state’s rape shield statute and whether such evidence is subject to a rape shield hearing. Still other states appear to exclude prior false accusation evidence from rape shield coverage, but only after the trial judge finds at a hearing that the prior accusation was false and thus admissible." The article then describes how in Ohio, if the woman admits it is true that she had lied in a prior rape accusation, then a hearing can be held and it can be possible to exclude that from evidence. Prior (False?) Accusations: Reforming Rape Shields to Reflect the Dynamics of Sexual Assault, by Brett Erin Applegate - J.D. in 2013 at Lewis & Clark Law School
