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Lack of Detail is Not Evidence of a Sexual Assault

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In R. v. Patel, 2024 NSCA 40 the Crown unsuccessfully appealed an acquittal on a number of grounds. One rejected ground was the suggestion that the trial judge had engaged in a “rape myth” about the lack of detail in the complainant’s evidence.

The Crown argued that “there is nothing in the case law establishing there is ‘any required level of detail before a complainant’s evidence can be concluded to be compelling.’” In this case, the trial judge had found a curious contrast to the detail given for some parts of her testimony and the utter lack of detail to the events that formed the subject matter of the charge and directly related to whether she had consented.

Notably, the Court of Appeal stated that the trial judge “did not make a finding that a sexual assault complainant who does not provide a detailed narrative is unworthy of belief. He did not invest G.M.’s lack of detail with a stereotypical meaning, one ‘rooted in discrimination and inequality of treatment’. The trial judge viewed the missing detail as a contrast to details G.M. provided about her interactions with the respondent by the kitchen and in the bedroom. It is not impermissible to take memory gaps or the absence of detail into account in a credibility assessment.”

The trial judge also noted that, though the accused had lied to the police about whether there had been sexual activity between him and the complainant, it was not determinative of guilt as “the reality is people do lie about having sex.” In this case, the accused had been delivering a pizza as part of his employment.

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