Cases arising out of allegations of distant events such as claims of sexual assault from a long time ago can be challenging for a court to analyze and assess. More often than not, there is little in the way of physical evidence leaving the court with little more than the testimony of the complainant alleging the historical sexual assault. In such instances, the court must exercise caution and scrutiny in analyzing the evidence.
Complainants in sexual assault cases can appear to be sincere, truthful, and honest in giving their testimony. However, that does not necessarily make their evidence reliable. Memories are far from perfect. Even a witness that appears confident and convincing may not be accurate or reliable in the testimony she gives. Where the evidence contains contradictions and inconsistencies, it is dangerous to place too much emphasis on the witness’ demeanour. It is possible for an honest witness to convince herself of the correctness of her account though, in fact, it may be inaccurate. Such witnesses can be extremely persuasive in the manner they give their evidence. What needs to be examined though is the reliability of the testimony over the sincerity with which it was given.
By the term “credibility”, the courts are often referring to a witness’ honesty or sincerity. On the other hand, “reliability” relates to the testimony itself and has more to do with the accuracy of that testimony. There are numerous factors that can affect the reliability of a witness’ testimony.
In cases involving historical allegations of sexual assault, the passage of time may make it difficult for a witness to recall the incidents that she is testifying about. However, this should not be used as a blanket excuse for accepting the evidence of such a witness. Rather, the court should be paying attention to the consistency of the evidence. In other words, “Is the evidence consistent throughout or are there significant inconsistencies?” These inconsistencies may exist within the testimony of the witness or between what the witness is now saying and has said in the past. The court should also carefully consider the issue of extrinsic evidence. Whatever extrinsic evidence does exist should be examined carefully. It should also consider what extrinsic or confirmatory evidence should be expected to exist as well as the absence of extrinsic evidence that would support major or significant areas of the complainant’s testimony.
There are also other issues in these historical sexual assault cases that the court must keep in mind. In cases where there has been a significant passage of time between the alleged incident (historical sexual assault) and the trial, the court should also be aware that even a detailed account of an event from the distant past does not mean that it is an accurate account, as the passage of time may have distorted the memory of the witness. In addition, the passage of a significant period of time can make it difficult for the trier of fact to accurately assess an apparent lack of motive.
The analysis of evidence in cases involving historical allegations of sexual assault must be a careful and considered one, where the reliability of the evidence itself must be the paramount consideration.