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Ghomeshi trial: Why sexual assault cases are so difficult to prove

Last Updated Feb 3, 2016 at 5:00 pm EST

Part of the difficulty the Crown faces in making its case against former CBC host Jian Ghomeshi is the way courts handle sexual assault cases.

In many cases, there is no concrete evidence beyond a victim’s testimony. And astute defence lawyers are able to pick apart a victim’s memory or sexual history to undermine the Crown’s case. We saw that in the first two days of the Ghomeshi trial, when his lawyers were successfully able to raise questions about the first complainant’s credibility.

According to Statistics Canada, only 42 per cent of sexual assault cases completed in criminal court resulted in guilty verdicts. That’s the smallest conviction rate among all violent offences except attempted murder.

And it’s critical to understand that police and Crown prosecutors will only recommend a case go to trial if they determine there is enough evidence for a likely conviction. Most cases don’t even get that far. According to StatsCan, 34 of 1,000 women aged 15 and older have reported being sexually assaulted in the last 12 months. If all of those cases went to court, the backlog would be immeasurable.

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According to a 2009 study, only 10 per cent of sexual assaults involving non-spouses have been reported to police. The data indicates that police are more likely to be notified in cases where the violence is of greater severity.

Among the reasons someone might not report an assault to police are shame, fear of reprisals and fear of not being believed or of being blamed for what happened. Some feel the assault wasn’t serious enough, or that it was a personal matter. Many also feel the police or courts won’t be able to do anything, and don’t want to relive the event in a courtroom.

But the validity of a complaint can complicate things, too. According to the Statistics Canada report, between 2 per cent and 34 per cent of sexual assault complaints are deemed unfounded by Ontario’s seven police forces. That’s the highest number among all violent offenses, so police are obligated to do a thorough investigation into each complaint before a charge can be laid or a suspect arrested.

Again, this puts the onus on the victim to prove that he or she was victimized, rather than the suspect being forced to prove his or her innocence, and another discouragement for someone to step forward when they are sexually assaulted.

Therefore, the Ghomeshi case is, in many ways, a case study in how difficult it is for prosecutors to get a conviction in sex assault cases.

Related on Chatelaine:

5 ways to support sexual violence survivors during the Ghomeshi trial