In a recent blog, my colleague reviewed the trilogy of 2019 Supreme Court of Canada sexual assault cases and considered how they inform our work as workplace investigators. Although it was in the early 1990s that new procedure under the Criminal Code limited the admissibility of past sexual history evidence at trial, these cases demonstrate that there is still tension with how to use less overt evidence of prior sexual history. This area is problematic as it continues to be plagued by what have been dubbed as the “twin myths.”

The twin myths are the misconception that complainants with a past sexual history are:

1) more likely to consent to sex, and

2) are less worthy of belief.

This blog will take a deeper look at how the trial and appeal courts in R. v. Goldfinch¹,  dealt with this issue when considering whether  evidence of a “friends with benefits” relationship was past sexual history evidence, and thereby inadmissible, or whether  it was  benign evidence that could be admitted and used as relevant context at trial.

The Facts

Mr. Goldfinch, the accused, dated and lived with the complainant. Their relationship ultimately ended and later, the two became friends with benefits (“FWB”). The case arose after an interaction between them one night. They each had vastly different accounts as to what transpired.

Mr. Goldfinch said they had sex, fell asleep, and the complainant then woke him up later saying he hit her in his sleep. He was annoyed and told her to leave.

The complainant said she told Mr. Goldfinch that she did not want to have sex with him, and that something in him “snapped.” She said he dragged her to the bedroom, hit her, and forced her to have sex with him.

At trial, the accused argued that evidence of their FWB relationship was important context. The trial judge admitted the evidence, concluding that it was “relatively benign,” but did provide limiting instructions to the jury about the use of this evidence.  The jury found the accused not guilty.

The complainant appealed this decision. The majority of the appeal court found that:

• The admission of the FWB evidence as context risked prejudicing the jury.
• The accused’s testimony about the frequency of the sexual contact, as well as his evidence that the evening in question was “typical” or “routine,” was improper.
• This evidence reinforced the twin myths and was only used to suggest that since the complainant had agreed to have sex with the accused in the past, she was more likely to have consented on that night as well.

A new trial was ordered to determine whether the evidence of their FWB arrangement could be admitted for a reason other than a twin myth.

Interestingly, in dissent, Justice Brown stated that a FWB relationship should be treated consistently with other relationships, and that this type of relationship is no different than admitting evidence that the two were “married,” “dating,” or “boyfriend-girlfriend.”

However, the majority disagreed. It indicated that evidence of a relationship that implies sexual activity – such as a FWB relationship – might result in prejudicial assumptions about the complainant in a way that evidence of a stable, monogamous relationship might not. The majority acknowledged this distinction and considered the impact of myths and misconceptions, rather than attempting to operate separately from them.

Application to Workplace Investigators

The decision in Goldfinch demonstrates that any relationship evidence must be handled with care to ensure that it is not used improperly.  Goldfinch highlights the risk of prejudicial assumptions, particularly with respect to non-traditional relationships such as a FWB relationship.

As workplace investigators, being cognizant of sexual norms and stereotypes and how the twin myths may manifest in ways that are subtle, is important when dealing with cases involving allegations of sexual assault and a lack of consent. As seen in Goldfinch, the twin myths can masquerade under the guise of context, narrative, or other seemingly harmless relationship evidence. This area presents a challenge for workplace investigators as it is not always intuitive. When considering past sexual history evidence, one might first think of sexual reputation or past partners as typical “no-nos,” and may not also consider how it can apply to the relationship at issue. Investigators must be aware that seemingly innocuous relationship evidence may imply details about the complainant’s sexual history and can lead to an improper inference. When faced with this type of evidence, investigators need to be very discerning and not inadvertently rely on evidence improperly when assessing credibility or making a finding on consent.

Key Take-aways

• Consider what sexual inferences may be drawn from relationship evidence.
• Consider whether your questions are inadvertently delving into the parties’ prior sexual activity.
• If this type of evidence is offered by either party – ask why it is relevant and be persuaded by that relevance before using it.
• If context is required, be able to articulate a legitimate reason that is not related to the twin myths.
• The twin myths are deeply held biases – investigators need to guard against engaging with twin myth reasoning in cases involving sexual assault.

¹R. v. Goldfinch, 2019 SCC 38

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