Jian Ghomeshi leaves College Park Court after his appearance Jan. 8, 2015. (David Cooper/Toronto Star via Getty Images)Such evidence could include DNA, observations about injuries or damaged clothing, and witnesses, Bellehumeur said, noting that with little physical evidence, such cases typically boil down to a "he said, she said" scenario, especially when the accused and complainants know each other. The issue of consent in those cases, she said, becomes a key element. "The main problem is that when you have a case that's just one word against the other, which tends to happen more in historic cases...then a criminal case has just such a high standard of proof that it becomes very difficult," Bellehumeur said. "Unless there's a real disparity between the believability of the complainant over the accused then it's going to be very difficult for the Crown to prove a case beyond a reasonable doubt."
One positive aspect of dated sexual assault cases, however, is that the announcement of charges against an accused can prompt other complainants to come forward, which in turn can help the prosecution, Bellehumeur added. Complainants who take the witness stand, however, will be grilled by the defence who will be seeking to punch holes in their story. "The complainant's credibility really stands and falls on her testimony, her demeanour," said University of Ottawa law professor Carissima Mathen. "Because the defendant has very strong rights to present a full defence, it can become difficult." Pre-trial accounts of alleged offences — as is the case with one of the complainants in the Ghomeshi trial who alleged the broadcaster choked her to the point where she couldn't breathe — are also open to scrutiny. And even with plenty of testimony, sexual assault cases can often still fall short of convictions due to a lack of definitive evidence to show a crime occurred, Mathen said.
"The main problem is that when you have a case that's just one word against the other."
Jian Ghomeshi attends his pre-trial hearing at Old City Hall court in Toronto. The disgraced former CBC radio host plead not guilty to sex assault and choking charges and elected to be tried by a judge alone. (Melissa Renwick/Toronto Star via Getty Images)
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