The media is reporting that Criminal Defence Lawyers use a tactic called “whacking” in sexual assault cases. Although I am not familiar with this so-called tactic, it is described as a cross-examination technique that attacks the complainant on irrelevant inconsistencies where the defence lawyer strays into irrelevant or inadmissible issues concerning the complainant.
A word about the complainant is worthy of comment. Defence lawyers prefer the word complainant as opposed to the loaded term “victim”. The word complainant recognizes that these witnesses are accusers. The credibility of the complainant is often central to whether a court can determine the truth of the accusation. That said, there are cases where the accused can rely on the defence of mistaken belief of consent and the credibility of the complainant may be less important.
The law on sexual assault evidence is that generally the complainant’s sexual history and character is irrelevant in deciding whether a sexual assault took place. The law also presumes that the complainant has either consented or not consented on the complainant’s state of mind at the time of the sexual activity. There is no such thing as implied consent when the complainant has not actually consented.
Whacking, as described by the media, is where the defence lawyer somehow introduces the complainant’s sexual history, or stereotypes through the back door for the purpose of poisoning the court’s mind about the complainant in order to distract the court on the issue of consent. The other purpose is to supposedly intimidate the complainant. Both tactics are prohibited by law, and are more likely to backfire by causing the Judge to distrust the defence lawyer. Additionally, society has come to accept that having multiple sex partners, or other sexual activities does not mean that a complainant is lying in a claim of sexual assault.
The reality is, that the only way to defend a sexual assault case is to attack or provide an alternative explanation for the physical evidence, and to show that the complainant cannot be trusted.
Inconsistencies in the evidence of the complainant may be innocuous or fundamental in showing that the complainant cannot be trusted. Details of the sexual assault may be uncomfortable or embarrassing to the true victim, but a false accusing witness may only be exposed by being challenged through the exposure of serious inconsistencies.
And what about assertions made concerning complainant’s response to the alleged sexual assault? A complainant who complains that the sexual assault caused a change in behavior or mental state, but the facts reveal that no such change happened,Doesn’t that tend to prove that the complainant may not be telling the truth? Those who advocate for a less aggressive approach to defence cross-examination of complainants to reflect the trauma they may have experience will water down the presumption of innocence. The fact that all forms of sexual assaults are criminal offences means that the cornerstone of the criminal law is present and must be respected. Introducing lawyers for the complainants into the process, providing special psychological safeguards to bar certain cross-examination techniques,undermines the presumption of innocence.
And what of “Whacking”? If it exists at all, it is being used notwithstanding that it is illegal. The courts can and will stop it when it arises. The law is firm on misuse of stereotypes and improper badgering of the complainants. The media should be very careful to assert that it is prevalent, or that more measures are needed to deal with this so-called tactic. An accused charged with a criminal offence must always be permitted to challenge the accusation, and expose false accusations. The process may not always be pretty.