A friend of mine asked for my comments on this article:
http://www.nationalpost.com/m/wp/blog.html?b=news.nationalpost.com%2F2015%2F02%2F12%2Fb-c-man-wins-right-to-sue-rape-accuser-for-defamation-after-he-was-cleared-of-charge
and as usual it got to be a little long for a Facebook post.
Intro
First, in case the article goes away, the condensed report is
- A "minor" female told many people in the community that a particular man had raped her
- She visited to the local RCMP detachment and swore out a complaint to this effect
- The RCMP investigated, asking the accused about this.
- The accused furnished receipts and other documents proving that he was hundreds of kilometers away at the time. The RCMP decided not to lay charges.
- Gossip continues, and he has filed suit for defamation against his accuser, partly alleging that it was not a live issue until she put a patina of legitimacy to this with the RCMP complaint and subsequent report that she had withdrawn her complaint rather than it being determined unfounded.
- The girl sought to exclude the content of the RCMP complaint from evidence because it was made to a quasi-judicial panel. The article reports the court ruled the RCMP is not a quasi-judicial panel and so is not a safe forum to make non-malicious false statements. The further its truth-seeking function one is not prosecuted for making mistaken statements to a quasi-judicial panel. (As an aside, the article reports that Parliament is a safe forum to make statements that are both false and malicious.)
Yes, this is a challenge. There are two actions or potential court actions involved here and only one is happening. In this case, it sounds to me that everything is related to pure civil defamation. While the statement to the RCMP was involved in the court ruling, all it does is lower the statement to the RCMP to the same level as statement to a friend or to the media. So far, his allegations are still unproven in court. He must show both falseness and malice with the burden of proof on him to show this. He appears to have convinced the police on the falseness, though I am not sure what standard of proof they require. It is short of beyond reasonable doubt that the Crown Prosecutor requires, but might be on balance of probabilities or lower. (The Crown has discretion to decline to proceed if there is no reasonable prospect of conviction, and the police have discretion to not charge based on a similar discretion. The thing is that there are allegations that sometimes they invoke this discretion based on the consideration of random disbelief of rape, or potential impact to the perpetrator's public image when they have simple he-said she-said.)
State Involvement
This is a preliminary that does not answer the central question, and can be skipped.
I don't know what statements the RCMP made as a result, and whether there would be a case to be made that they might be implicated by repeating the false statements. Apparently she reported the visit to the RCMP to provide the unfounded rumour with a patina of legitimacy. Should the RCMP have denounced her publicly when her story did not even pass basic coherence? Charged her with attempting to mislead? But the public policy of this might give license to other officers to attempt to use these tools for the more common failure of a complaint not having a reasonable prospect of being provable beyond reasonable doubt. (It should be noted that for a high price the complainant can still proceed on with a civil tort and only need for it to be provable on balance of probabilities.) (Practically, naming the RCMP as a party would fail for already established policy reasons that you can not put a chill on police investigating complaints, so that they were doing their job. In addition, they are the Crown and have wide immunities. I would allege that they should potentially be namable depending on how they do the job. ie if they state her allegations as fact to the media and ask for others to step forward to corroborate is different than asking others for their recollections of the event without leading.)
As an aside, another interesting case of pressing the state into the service of private conflict is the woman who denounced her husband to the Nazis for treasonous statements and had him hauled off to the concentration camps. I can not remember if it was actually that he was beating her, but this was not a crime. Sometimes the police have an any means to the end attitude, and sometimes (eg Al Capone's Tax Evasion prosecution) the state will bless this. This can sow confusion in the populous that it is legitimate for private citizens to use the State as a tool to handle private disputes because they do not have access to the Courts or other tools to press their legitimate claims. I assert this has led to an inappropriate expansion of the criminal law to trivialities that people just don't like.
Here, however, the criminal law, and the state involvement branches are entirely left out.
Civil Side
Again, a tangential preliminary is that according to the article, it would appear that the ruling that the RCMP is not quasi-judicial might be gratuitous, since maliciously false statements are only protected in parliament. If malice could be shown then the evidence should not be excluded. However, maybe this would have set too high a bar, because this is far higher than simply deliberately false. However, this might be based on the admissibility rules. There is a desire to put all relevant evidence before the trier of fact, rather than to excessively use admissibility to never set it before the judge/jury to be weighed for credibility and probative value. This might be the motivation for the ruling.
Rape (or as we call it in Canada, Sexual Assault) is special. Historically, the allegation puts an independent moral taint on both the accused and accuser. It is still a basis for vengeance law that the state sought to stamp out by stealing the right to justice from the parties into the Criminal law. [I am taking Restorative Justice this term where we read an article about how by taking the offence onto the King/the State rather than it being between the parties, neither party is served well.]
At this point, I realized it was going to take too long to write up all the thoughts, so here is the shorter post on Facebook:
As usual, my thoughts have become over-long and I started a blog post about it, but now I am wondering if I will have time to finish it.
Essentially the position of the girl's litigation guardian is that "sure I can't say this stuff in a blog post or to a newspaper reporter, but I should be free to lie the police with impunity. (And a further extension not in issue in this court ruling that "I can lie about what the police said to me, using the cloak of confidentiality as a shield to them correcting the record.") (This is assuming that his allegations are truth.)
I am hesitant to carve out sexual assault as a class of false statements one can safely make without danger of being brought to court for defamation. Maybe, in weighing the historical impediments to reporting the legislature might find it important to make that carve-out, but I think it would be counter-productive, fueling the false-allegation perception by making it the one thing you can lie about with impunity and hiding the true reports among a perception that this was used simply because it is safe when there is something else going on. As the guy alleges, false accusations have significant personal costs to the accused.
The article itself fuels the false reporting myth, partly because they often do not report on true reports.
Somewhere around here, I have some stats on false reporting, and one of the things it found was a significant number of withdrawn complaints were as a result of third party pressure to report or third party complaints not backed up by the victim. Given that this is a minor I am wondering if there might have been an element of parents involved in this situation. I am suspicious that this is a situation that got out of her control where she made a random unguarded ambiguous statement, and was forced into amping it up to this level by people in her community trying to stand up for her rights, rather than her maliciously setting out to ruin this guy. I am wondering if she was hanging out with this guy that her parents did not approve of and to save her reputation with her parents, she minimized her own agency in the interactions. She was then caught in the false-reporting perception where people, and particularly the parents, latch onto someone who is saying something as a symbol of all the unreported incidents to achieve community denunciation of the crime as an idea rather than this particular perpetrator. Having made one statement she would then be forced to stick by that and elaborate it further rather than admit to the previous things and have the whole thing come crashing down. Just to clarify about the withdrawn third party reports: I am putting my own spin on this stat. It is entirely possible that the victims do not proceed not because of the report being wrong or a misunderstanding but that they did their own weighing of the personal and relational cost to proceeding and came to a different conclusion as to the value of the prosecution than the third party.
I really don't know how we can get out of this loop. Sexual Assault is freighted with all kinds of extra baggage. On the one hand, we can not demote it to common assault or theft because this would fail to recognize the historical treatment of its most frequent victims. On the other hand, ramping up the implications of the accusation and conviction means that it becomes an excessively heavy hammer that no one wants to wield, meaning that people become overly cautious proceeding with the prosecution and overly aggressive fighting it. Because of the lingering doubt and implications to his community standing and career prospects, he can not just leave it as unproven so he has to fight back and prove it false and malicious which as you point out has the consequence of fueling the myth of false accusation and hence furthers the under-reporting.
Just to push my latest hobby horse (I am taking a Restorative Justice course), I would assert that had this been undertaken in a restorative justice conference that we could have addressed the actual issues involved because it would not end (as the criminal arm did) when he showed that he was not there, but could then have moved on to find out why the accusation was made, and implicate all those that furthered it possibly resulting in a simple public statement to the parties not at the conference clearing up the misunderstanding, rather than all this expense and collateral damage.
