Opinions

Rape shield: Investigating section 276

Two student journalists argue about something the Supreme Court already decided

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The main criticism against section 276 of the criminal code, the rape-shield law, is that it supposedly hinders an individual from gaining information for full

answer and defence in pretrial by preventing the accused from asking questions about a woman's sexual history as outlined in sections 7 and 11 of the Canadian Charter of Rights and Freedoms. What 276 actually does is prevent mysoginistic myths about women's sexuality from rearing their unfounded ugly heads during sexual assault trials, while preserving the tenets of fundamental justice.

First, section 276 only prevents the admission of general information about sexual history that fall into the "twin myth" categories of assuming a woman is either not a credible witness because of her sexuality or that she somehow consented based on the fact that she enjoys consensual sex on a regular basis. Second, the Charter protects the rights of the accuser AND the accused. The Supreme Court ruled that, per section 1 of the Charter, the rape-shield law does not infringe upon an individual's legal rights. Remember, the first point of the Charter guarantees "the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." In a free and democratic society that admits to continually suffering from mysoginistic tendencies, women's rights must remain an issue that is addressed in court; and these rights must be protected as much as the accused's rights are protected by sections 7 and 11, which, by the way, are the rights and freedoms section 1 refers to.

This is how the Supreme Court defended section 276: If a defendant wishes to include what he believes are relevant sexual details, he may do so in a signed affidavit, which the judge then uses to decide whether the evidence is relevant. In this way, the defendant gets their chance at full answer and defence as promised by fundamental justice. As well, in doing this, the defendant does not give up their right not to be forced to testify against himself--another right that 276 supposedly infringes upon. The evidence the accused includes in an affidavit should be similar to what they would produce in open court or in pretrial discovery, therefore, how can it be considered as a testimony against them? They must, just as they would in court, prove the information is relevant to the case at hand.

Section 276 makes individuals think twice about the evidence used in court and the way we make judgments of character, even though it differs from other sections of criminal law. It allows each case to be considered on its own merits, which is perhaps a more important aspect of justice than simply resorting to precedent, as occurs in many court cases.

Overall, section 276 stands strong because it protects the rights of all individuals involved, and anyone who doesn't see this hasn't realized that the world isn't black and white, and that exceptions often preserve justice rather than inhibit it.

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