The ideal victim, the hysterical complainant, and the disclosure of confidential records: The implications of the charter for sexual assault law

• Published in: Osgoode Hall law journal (1960) 2002-11, Vol.40 (3/4), p.251-295
• Main Author: Gotell, Lise
• Format: Article
• Language: English
• Subjects: Canadian Charter of Rights and Freedoms (Canada); Disclosure of information; Law and legislation; Legal status, laws, etc; Privacy, Right of; Rape; Rape victims; Sex crimes; Social aspects
• ISSN: 0030-6185; 2817-5069; 2817-5069
• DOI: 10.60082/2817-5069.1437

This article explores the current state of Canadian law on the production and disclosure of complainants' records to reflect upon the implications of the Canadian Charter of Rights and Freedoms for Canadian sexual assault law and jurisprudence. Some scholars assert that the Supreme Court's decision in R. v. Mills, upholding section 278 of the Criminal Code governing access to complainants' records, constitutes an erosion of accuseds' rights and an unjustified compromise of constitutional standards. By contrast, this article demonstrates that R. v. Mills is a highly contradictory decision that can be read as creating an interpretation of section 278 that privileges defendants' rights and undermines the protections that the legislative regime sought to erect. Emerging out of the tensions inscribed within Mills, recent decisions continue to privilege the legal rights of the accused and to reinforce a liberal legalistic construction of sexual violence. Privacy, posed as a "right" to contain narratives of sexualized violence within a bounded personal space, may provide but tenuous protection against vigorous pursuit of records by defence counsel. When complainants can be constructed as failing to enact the characteristics of ideal victimhood, their entitlement to privacy is discounted. Through a discursive analysis of the case law on access to complainants' records, the article contends that the mechanism of disclosure constitutes the central contemporary enactment of the hysterization of the rape victim.