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The Liberal government has introduced tough new measures aimed at protecting sexual-assault complainants from intrusions into their sexual past, the first strengthening of the rape-shield law in a quarter-century.
In a Criminal Code amendment that a sexual-assault crisis centre called a direct response to the acquittal of broadcaster Jian Ghomeshi last year, proposed legislation would spell out for the first time that a complainant’s text messages, e-mails and video recordings with sexual content or a sexual purpose can be kept out of trials. A new provision would subject these messages, including those sent after an alleged assault, to the same rules as evidence of a complainant’s past sexual activity: requiring a judge’s advance approval after a closed hearing for them to be used in a trial.
A second change would prevent personal records of the complainant that are in the accused’s possession, such as journals or diaries, or medical records, or perhaps personal letters, as in the Ghomeshi sex-assault trial, from being used as evidence unless a judge agrees in a private hearing. The same process is currently used when an accused seeks access to records held by third parties, such as psychologists or rape-crisis centres.