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A Principled Approach to Assessing the Absence of Motive to Lie in Sexual Assault Cases

Resource type
Author/contributor
Title
A Principled Approach to Assessing the Absence of Motive to Lie in Sexual Assault Cases
Abstract
When can a trier of fact take into account the absence of a complainant's motive to lie in assessing credibility in sexual assault cases. How much weight can be attributed to that absence? Resolution of these questions has led to a surprisingly sizable number of appellate cases. R v Gerrard 2022 SCC 13 is now the leading case on the issue. It confirms somewhat cryptically that the absence of evidence of a motive to fabricate can be considered in assessing credibility. Clarity on the issue is still needed. In particular, what consitutes "proved absence" and/or evidence of an absence of motive. This piece argues that courts need to start afresh. If we better understand what courts are trying to get at by referencing the issue of motive as being "proved"and, we apply the everyday rules of evidence, we can escape from this confusing trap of trying to fit the issue into a particular box. When the cases talk about proved absence (or presence) of motive, the phrase should be interpreted to mean that there is a sufficient and compelling evidentiary basis or foundation to allow for the conclusion or inference to be drawn. After setting out how the ordinary rules of evidence and policy support this principled approach to the issue, the article offers some model instructions on the issue.
Genre
SSRN Scholarly Paper
Archive ID
4157967
Place
Rochester, NY
Date
2022-07-08
Accessed
9/29/23, 5:12 PM
Language
en
Library Catalog
Social Science Research Network
Citation
Tanovich, D. M. (2022). A Principled Approach to Assessing the Absence of Motive to Lie in Sexual Assault Cases (SSRN Scholarly Paper 4157967). https://doi.org/10.2139/ssrn.4157967
Author / Editor