When Privacy is Not Enough: Sexual Assault Complainants, Sexual History Evidence and the Disclosure of Personal Records

How can the rights of sexual assault victims be balanced against the rights of the accused in a sexual assault case? Sexual assault remains one of the most under-reported crimes in Canada, largely due to the invasion that results once a sexual assault is reported. Distrust of the criminal justice system continues to deter reporting. Recent amendments to the Canadian Criminal Code aim to protect sexual assault complainants by regulating the introduction of sexual history evidence and third-party records, such as counselling and therapy. However, courts in Canada have increasingly used a standard based on privacy law lo interpret these provisions. Does privacy law serve as a useful framework by which to evaluate this legislation? This article explores the gendered issues of privacy law, challenges the privacy approach to the sexual assault provisions of the Criminal Code, and explores a more balanced alternative.