Saturday, April 9, 2011
Elaine Craig (Dalhousie University - Schulich School of Law) has posted The Relevance of Delayed Disclosure to Complainant Credibility in Cases of Sexual Offence (Queen's Law Journal, Vol. 36, 2011) on SSRN. Here is the abstract:
The relevance of delayed disclosure to a complainant’s credibility in sexual assault cases remains a problematic and confusing area in the law of evidence. Although section 275 of the Criminal Code abrogates the rules regarding recent complaint, courts have been inconsistent in their interpretation and application of the provision since its enactment in 1983. The doctrine of recent complaint evolved from the assumption that a woman who is sexually assaulted will disclose her violation at the first reasonable opportunity. In R. v. D.D., the Supreme Court of Canada ruled that it is impermissible to draw an adverse inference as to a complainant’s credibility based solely on delayed disclosure. Despite this decision and section 275, many courts still rely on the assumption that real victims of sexual violence will tell someone promptly.
In examining D.D.’s treatment in subsequent case law, the author finds that in many sexual assault cases the starting presumption is still that victims who fail to complain promptly are less credible. The author explains that the persistence of the “hue and cry” myth results from ingrained social assumptions about how sexual assault victims behave.
Triers of fact continue to resort to these problematic assumptions to fill gaps in reasoning regarding circumstances where they have no firsthand knowledge or experience. The author argues that it may not be enough to identify a particular social assumption as problematic.
In conclusion, the author makes two recommendations. First, trial judges should circumscribe defence counsel cross-examination on delayed disclosure if the defence has offered no evidence or explanation suggesting that the delay is relevant for some purpose other than the hue and cry assumption. Second, the Supreme Court of Canada ought to re-visit the conclusion in D.D. that expert evidence on the irrelevance of delayed disclosure, standing alone, is not necessary.