There is a rape shield law in Canada stating that women cannot be asked about their sexual history in a rape trial.
Boyle faces allegations / charges of threats to use a rope and use of a rope, except the couple normally engages in horseplay with ropes. That complicates the issue. On top of that, they are both suffering PTSD from 5 years of torture and captivity.
Is this your every day rapist, like Ted Bundy, or is this a man who went nuts in captivity? This is not just another rapist, this is a man who had B-Movie sex with his wife. One day his wife reported to her sister, then the FBI and then the RCMP, that she did not consent. Here we are.
I have been reading up on rape shield laws and I thought that there was NO questioning or submitting evidence of the victims sexual past, I was incorrect in thinking that.
Now I see where the lawyers are going in regards to mounting a defense for JB
What I have read (not only in Canada but in other countries as well) is that a rape shield law can allow questioning if it pertains to the case but that it restricts or limits those questions or evidence of the victims sexual history.
The law shields the victim(s) from improper use of their sexual history but a judge rules that the sexual history is admissible it is limited to case specific situations.
So since this case is in Canada I will post the sections of the Canadian Criminal Code that pertain here
Section 276(1) and 276(2)
Evidence of complainant’s sexual activity
276. (1) In proceedings in respect of an offence under section 151 [
sexual interference], 152 [
invitation to sexual touching], 153 [
sexual exploitation], 153.1 [
sexual exploitation of a person with a disability], 155 [
incest] or 159 [
anal intercourse], subsection 160(2) or (3) [
bestiality] or section 170 [
Parent or guardian procuring sexual activity], 171 [
Householder permitting sexual activity], 172 [
corrupting children], 173 [
indecent act], 271 [
sexual assault], 272 [
sexual assault causing bodily harm or with a weapon] or 273 [
aggravated sexual assault], evidence that the complainant has engaged in sexual activity, whether with the accused or with any other person, is not admissible to support an inference that, by reason of the sexual nature of that activity, the complainant
(a) is more likely to have consented to the sexual activity that forms the subject-matter of the charge; or
(b) is less worthy of belief.
R.S., 1985, c. C-46, s. 276; R.S., 1985, c. 19 (3rd Supp.), s. 12; 1992, c. 38, s. 2; 2002, c. 13, s. 13; 2018, c. 29, s. 21.
Reputation evidence
277. In proceedings in respect of an offence under section 151 [
sexual interference], 152 [
invitation to sexual touching], 153 [
sexual exploitation], 153.1 [
sexual exploitation of a person with a disability], 155 [
incest] or 159 [
anal intercourse], subsection 160(2) or (3) [
bestiality] or section 170 [
Parent or guardian procuring sexual activity], 171 [
Householder permitting sexual activity], 172 [
corrupting children], 173 [
indecent act], 271 [
sexual assault], 272 [
sexual assault causing bodily harm or with a weapon] or 273 [
aggravated sexual assault], evidence of sexual reputation, whether general or specific, is not admissible for the purpose of challenging or supporting the credibility of the complainant.
R.S., 1985, c. C-46, s. 277; R.S., 1985, c. 19 (3rd Supp.), s. 13; 2002, c. 13, s. 14.
EXCEPTION TO THE PROHIBITION (THIS , IT SEEMS, IS WHERE JB'S DEFENSE IS GOING)
276 ...
Conditions for admissibility
(2) In proceedings in respect of an offence referred to in subsection (1), evidence shall not be adduced by or on behalf of the accused that the complainant has engaged in sexual activity other than the sexual activity that forms the subject-matter of the charge, whether with the accused or with any other person, unless the judge, provincial court judge or justice determines, in accordance with the procedures set out in sections 278.93 and 278.94 [
Production of Records for Sexual Offences], that the evidence
(a) is not being adduced for the purpose of supporting an inference described in subsection (1);
(b) is relevant to an issue at trial; and
(c) is of specific instances of sexual activity; and
(d) has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.
... R.S., 1985, c. C-46, s. 276; R.S., 1985, c. 19 (3rd Supp.), s. 12; 1992, c. 38, s. 2; 2002, c. 13, s. 13; 2018, c. 29, s. 21.
Standard of Proof
The applicant must satisfy the requirements of admission on a balance of probabilities.
[1]
- Jump up ↑ R v Darrach, [2000] 2 SCR 443, 2000 SCC 46 (CanLII), per Gonthier J, at para 46
276...
Factors that judge must consider
(3) In determining whether evidence is admissible under subsection (2), the judge, provincial court judge or justice shall take into account
(a) the interests of justice, including the right of the accused to make a full answer and defence;
(b) society’s interest in encouraging the reporting of sexual assault offences;
(c) whether there is a reasonable prospect that the evidence will assist in arriving at a just determination in the case;
(d) the need to remove from the fact-finding process any discriminatory belief or bias;
(e) the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility in the jury;
(f) the potential prejudice to the complainant’s personal dignity and right of privacy;
(g) the right of the complainant and of every individual to personal security and to the full protection and benefit of the law; and
(h) any other factor that the judge, provincial court judge or justice considers relevant.
...
R.S., 1985, c. C-46, s. 276; R.S., 1985, c. 19 (3rd Supp.), s. 12; 1992, c. 38, s. 2; 2002, c. 13, s. 13; 2018, c. 29, s. 21.
