Criminal Code C-46 provides mechanisms which make is easier for vulnerable persons such as female complainants to give testimony during criminal proceedings. The measures include: ability to give testimony outside the courtroom via closed circuit television or behind a screen; allowing a support person to be present during testimony; requiring some or all members of the public to leave the court room during criminal proceedings; where an accused is self-representing, appointing a lawyer to conduct cross examination; and publication ban to prevent information being released which could identify the victim or witness.
Women and Justice: Keywords
Legislation
Criminal Code (R.S.C., 1985, c. C-46), Sections 486 and 714 (Vulnerable Witnesses) (1985)
Domestic Case Law
People of the Philippines v. Anacito Dimanawa Supreme Court of Philippines (2010)
The appellant was convicted of statutory rape of his daughter. The appellant claimed the rape had not happened because the daughter was not home, and that she was not a credible witness. The Supreme Court agreed with the findings and conclusion of the trial and appeals courts that rape was committed by the appellant. The Supreme Court noted that the testimony of a child-victim is to be given full weight and credence. The Supreme Court noted that respect for elders is deeply rooted in Filipino children and recognized by law such that there is a presumption that the child testified truthfully. Moreover, the concurrence of the age of the victim and her relationship to the offender warranted upgrades to the sentencing penalty.
People of the Philippines v. Bernabe Pareja Y Cruz Supreme Court of Philippines (2014)
The appellant was convicted of two counts of statutory rape. The appellant sought to overturn the conviction on the ground that the victim’s testimony was riddled with inconsistencies. The Supreme Court set forth the recognized rule that the “assessment of the credibility of witnesses is a domain best left to the trial court judge… and when his findings have been affirmed by the Court of Appeals, these are generally binding and conclusive upon this Court.” While there are recognized exceptions to this rule, the Supreme Court found no substantial reason to overturn the identical conclusions of the trial and appellate courts on the witnesses’ credibility and affirmed.
Expediente 12-000123-1283-PE Tribunal de Apelación de Sentencia Penal. Segundo Circuito Judicial de San José (2013)
The prosecutor is appealing a ruling of not guilty in a sexual abuse case. The not guilty ruling had been based largely on inconsistencies between the initial testimony of the victim and her testimony at trial. This court found that, because the victim was not provided appropriate and comfortable conditions to give oral testimony (she was made to testify in front of a public audience and with the defendant in view), her testimony entailed a re-victimization, which influenced her ability to provide complete and accurate facts. On this basis, the court remands the case to be re-heard at the lower court.
El fiscal apela la determinación "no culpable" en un caso de asalto sexual. La decisión de la corte fue basada en gran parte en inconsistencias entre el testimonio inicial de la víctima y su segunda declaración en el juicio. La corte concluyó que como la víctima no tuvo las condiciones apropiadas para dar testimonio oral (la obligaron a testificar en frente de una audiencia pública que además incluía al acusado), su testimonio en sí representaba una forma de revictimización, lo cúal influenció su abilidad de relatar los hechos con exactitud. Basado en esto, la corte remanda el caso para que sea procesado de nuevo en el tribunal de primera instancia.
Moti Lal v. State of M.P Supreme Court of India (2008)
A man raped a woman while she guarded her husband’s agricultural field. The woman and her husband filed a police report, and the man was arrested and convicted under §§ 450 and 376(1) of the Indian Penal Code and § 3(1)(xii) of the Scheduled Castes and Scheduled Tribes Prevention of Atrocities Act. The offender appealed his conviction on the grounds that the prosecution relied too heavily on the victim’s testimony. The Court denied his appeal. Emphasizing the stigma associated with incidents of rape, the Court reaffirmed Indian courts’ presumption that rape victims who file reports are telling the truth.
Memoranda
Closed-circuit Television in Cases Involving Child Testimony (2014)
This memorandum discusses the use of closed-circuit television (CCTV) in courtrooms for cases where there will be child testimony. The United Nations Office on Drugs and Crimes recommends that children be allowed to give testimony through CCTV or another mechanism in order to prevent the child witness from being traumatized. Unfortunately, given the funding requirements, few countries have the facilities to use CCTV. Yet, a number of countries have statutes allowing for alternative mechanisms to prevent child victims from seeing the defendant while giving testimony. Some laws providing for the use of CCTV have been challenged, but courts have upheld the laws in nearly every situation.
Child Testimony: Admissibility, Reliability and Procedures (2014)
This memorandum discusses the strategies courts employ around the world to treat child victims and witnesses and their evidence when giving testimony. International and regional human rights standards have highlighted good practices in the treatment of vulnerable young child witnesses, centering on the foundational principle of the best interests of the child. In turn, domestic courts and legislatures worldwide have created and employed a broad range of judicial approaches to the admissibility of child witness testimony; the reliability of child witness evidence, and the procedures that should be employed to facilitate child witness testimony.