Thursday, January 14, 2010
In support of a presumption of admissibility in actus reus cases, the article examines both formal and substantive equality justifications for a presumptive rule of admissibility. Part II examines the formal equality argument grounded in the “tit for tat” principle that has emerged in the law of evidence and which applies in this context. The argument is that fairness demands that the Crown be permitted to respond to the usual “whack the complaiant” defence tactics in sexual assault cases. Part III advances a substantive equality argument grounded in the need to take into account the gender bias that persists in similar fact adjudication. A core element of this bias is manifested in our courts failure to properly give effect to the fact that sexual assault is not a crime of sex and passion but one of violence. This bias has had a negative impact on cases as is evident from a survey examining post-Handy cases from 2002-2008 where courts frequently exclude the evidence because of a lack of so-called similarity in the nature of the prior sexual acts. The survey is set out in Part III. Finally, in Part IV, the article identifies and responds to feminist criticisms of a presumptive rule of admissibility.