S. v. J.
This case summary and analysis was prepared in partnership with the International Reproductive and Sexual Health Law Programme of the University of Toronto for Legal Grounds: Reproductive and Sexual Rights in African Commonwealth Courts.
S. v. J.
A 17-year-old girl (“Complainant”) alleged that Appellant, a police officer, sexually assaulted her. She alleged that Appellant offered to give her a driving lesson in his car. During the lesson, he told her to stop the car and overpowered her by forcing her arms over her head. He then forcefully removed her clothes, inserted his fingers into her vagina, and exposed his penis. He forced her legs apart and attempted to rape her. She resisted by kicking and screaming for help and eventually managed to jump out of the car and run for help.
Appellant denied the allegation. He claimed that they had discussed the possibility of an intimate affair, and that she did not resist his sexual advances. He denied exposing his penis. The evidence revealed that the Complainant was in shock, and had found the medical examination painful. There were abrasions on her vagina and buttocks, which indicated unlubricated sexual intercourse. A Regional Trial Court convicted Appellant, and sentenced him to 18 months of imprisonment. Appellant unsuccessfully appealed to a Provincial Court, before appealing to the Supreme Court of Appeal. Appellant claimed that the Trial Court failed to adhere to the cautionary rule of evidence, which requires judges to give less weight to the testimony of a complainant in sexual assault cases.
The issue in this case was whether the judge erred in failing to strictly apply the cautionary rule of evidence.
The Court noted that the cautionary rule of evidence in cases of sexual assault is premised on the belief that “women are habitually inclined to lie about being raped,” and recognized that this perception is outdated. The rule unjustly assumes that complainants of sexual assault are particularly unreliable. The Court reasoned that a judge may advise a jury to exercise caution with respect to the unsupported testimony of a witness. The judge should not do so, however, on the mere basis that the witness is a “complainant of sexual assault” (R v. Makanjuolo, R v. Easton [1995] (3) All ER 730 [CA]). The strict application of the rule in sexual assault cases lessens the state’s burden of proof, and can therefore result in different outcomes of cases with equally weighted evidence. Moreover, the Court stated that the cautionary rule is inconsistent with the constitutional right to equality. In the present case, the material evidence is more consistent with the complainant’s testimony than that of the appellant. The Regional Trial Court therefore did not err in convicting the officer.
The Court concluded that in sexual assault cases, it is inappropriate to strictly apply the cautionary rule of evidence. Neither of the lower courts thus erred in failing to apply the cautionary rule. The Court dismissed the appeal.