Dr. P. Leone

The defendant, charged with sexual assault causing bodily harm for allegedly transmitting genital herpes to the complainant, brought a preliminary application under section 276 of the Criminal Code.

The defendant sought to adduce evidence of the complainant's prior sexual activity to challenge causation and whether her consent was vitiated by fraud.

The court granted the application in part, finding that the evidence was relevant to the live issues at trial and its probative value was not substantially outweighed by the danger of prejudice.

The court permitted cross-examination on specific instances of the complainant's sexual history within a defined timeframe to allow the defendant to make full answer and defence.

The defendant was charged with sexual assault causing bodily harm and criminal negligence causing bodily harm arising from the alleged transmission of genital herpes (HSV-2) to the complainant.

The defendant brought a section 276 application seeking to adduce evidence of the complainant's prior sexual activity to support two defences: (1) that the defendant was not the source of the infection (causation), and (2) that the complainant would have consented to unprotected sexual activity even if informed of the defendant's positive viral status (negating fraud-based vitiation of consent).

The court granted the application in part, permitting limited cross-examination of the complainant regarding her sexual history within a defined timeframe and scope, while excluding evidence that would invoke the "twin myths" that prior sexual activity makes consent more likely or credibility less worthy.