Reasonable Doubt in Credibility Contests: Sexual Assault and Sexual Equality

Abstract

Sexual assault prosecutions present particular challenges in making credibility determinations in ‘he said/she said’ cases. An analysis of Canadian law illustrates how attempts to avoid the ‘either/or’ error can be vulnerable to a critique that the understanding of reasonable doubt in such cases is inconsistent with sex equality. The possible ways in which accused persons may be given the benefit of a less than reasonable doubt, and the resulting implications for both sex equality and judicial impartiality, are discussed in this article. A return to basic principles is suggested.