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Joseph Neuberger, Neuberger & Partners LLP
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Being charged with sexual assault is often shocking to the person accused and one of the first responses is to say “I’m not that kind of person.” It can be very frustrating for an accused when they are told that personal character references are not helpful in their defence of a sex assault charge but there are good reasons why.
Saying that there is a “type” of person who commits sexual assault invites reasoning based on stereotypes about men and women. Just as there are stereotypes about “real victims” in sexual assault, the courts have been slowly recognizing that there are stereotypes about male sexual aggression. It is important in a trial to focus on the facts and evidence related to the specific events that form the basis of the charge and not invite credibility assessments based on myths and stereotypes.
Similarly, prosecutors are not permitted to lead “bad character evidence” to imply the accused is the type of person more likely to commit an offence. They often try to establish a “pattern of behaviour” or animosity towards the complainant. The most common reason this type of evidence is permitted is to explain why a complainant remained in an abusive relationship instead of leaving. Recently there have been greater restrictions put on using bad character evidence under the broad justification of “narrative.”
If an accused testifies about what kind of person they are it opens the door to rebuttal evidence and allows the Crown to admit bad character evidence where they otherwise would not be permitted. In a criminal trial on a sexual assault charge or domestic assault charge, the focus needs to be on the facts and the evidence, not on the character of either the complainant or an accused. The exception is where there context of a history of violent or aggressive conduct by the complainant leading to the charge of assault or sexual assault. The defence may be permitted to lead evidence of the aggressive character of the complainant. But this is in rare and unique circumstances.
The best way to show good character in a sexual assault trial is to be properly prepared before testifying instead of relying on other people to vouch for you.
