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Canada's Supreme Court justices pose for a photo before a welcoming ceremony at the Supreme Court of Canada in Ottawa October 6, 2014. (Chris Wattir/Reuters)
Canada's Supreme Court justices pose for a photo before a welcoming ceremony at the Supreme Court of Canada in Ottawa October 6, 2014. (Chris Wattir/Reuters)

Globe editorial

Supreme Court right to rule that woman’s sexual history had no place in trial Add to ...

The Supreme Court of Canada sent a particularly strong message last Wednesday when it added virtually nothing to what the Newfoundland and Labrador Court of Appeal had already – and rightly – said.

A man called S.B. had been charged with two sexual assaults of his wife, C.M., but the trial got bogged down by lurid details from their personal lives.

The case went to a jury, and perhaps the jury heard and saw too much: for instance, a video in which the two of them were seen engaging in anal sex. The jury also heard that the defendant wanted to introduce text messages between the wife and a man with whom she had apparently had an affair.

The jury acquitted S.B. of all the charges – possibly because of the sheer distraction of the narratives presented at the trial, and possibly because of the jury’s impressions of the wife.

The real question in the trial was straightforward: whether or not S.B. had sexually assaulted his wife.

Cross-examination is a courtroom technique designed to find out whether someone plays fast and loose with facts, which might make their testimony unreliable.

But if the competing narratives are too colourful, the whole trial can easily go astray. That’s especially true when the trial is about sex, and there are rumours or actual evidence of sex videos, or an enticing-sounding series of text messages.

The panel of three judges at the Newfoundland Court of Appeal all agreed that the trial judge shouldn’t have let the jury see or hear about the “sexual history” of the wife, C.M.

The judges were justifiably worried about the myth of women of “easy virtue,” as one of them put it, although that very old-fashioned phrase didn’t ever came up in the trial.

A person’s sexual life cannot always be separated from their other activities. Such conundrums as these may never be fully sorted out. But the clear question of whether a husband has or has not violently raped his wife should not be impossible to solve.

Unfortunately, S.B. and C.M. now seem doomed to go through yet another trial. But that is a far better option than the creation of a precedent that allows a woman’s unrelated sexual history to be part of a sexual assault trial.

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