Canadian women making decisions on whether to report sexual assault should know that while Canada's law defining sexual assault is itself positive, the processes that govern reporting, prosecuting, defending and adjudicating this crime pose serious hazards for women.
What follows is an overview of significant changes to Canada's sexual assault law and the way it is implemented, from 1982 to the present:
1982: Parliament broadens definition of rape and criminalizes wife rape
In 1982, the federal government reformed the crime of rape, which previously applied only where a man had non-consensual intercourse with a woman not his wife. The 1982 reforms broadened the crime by including all forms of unwanted sexual contact, not just intercourse, and criminalized wife rape for the first time.
The Criminal Code now prohibits sexual assault in three tiers: sexual assault (maximum 18 months or 10 years); sexual assault where there are multiple perpetrators, bodily harm against a third party is threatened, bodily harm is caused, or a weapon is used (maximum 14 years); sexual assault causing maiming or endangering life (maximum life).
1998: Sex discrimination in the policing of rape condemned by court
For many women their biggest hurdle will be getting past the police. In 1998 in Jane Doe v Metropolitan Toronto Commissioners of Police the Ontario Superior Court ruled that the police had engaged in sex discrimination contrary to women's Charter-protected equality rights for their systematically flawed treatment of women who report rape and for failure to properly investigate their reports.
However, many discriminatory police practices continue: if police do not believe the woman, they may “unfound” her report and proceed no further. Unfounding occurs at rates that can be quite frightening. In Ottawa for example, in 2007, Blair Crew writes that 32.45 per cent of sexual assaults were "unfounded," meaning that women were told "that their report of sexual assault was fabricated at a rate that was more than ten times greater than for any other crime."
If police believe the woman, they may lay charges. However, police charge tier one sexual assault -- the lowest level of sexual assault -- in the overwhelming majority of cases, even where the facts such as weapon use or bodily harm suggest more serious charges are appropriate.
1987: Supreme Court clarifies the definition of sexual assault
There is some legal uncertainty as to whether an assault is "sexual" because this was left undefined in the Code. It took the Supreme Court of Canada to tell us that touching a woman's breasts amounts to a sexual assault. In R v Chase (1987) it ruled that an assault becomes a sexual assault if in "all the circumstances," "the sexual or carnal context of the assault [is] visible to a reasonable observer." This context includes not only the part of the body touched, but also the motive of the perpetrator, such that attacks to a woman's face or head could, in some circumstances, amount to a sexual assault.
1991: Past sexual history of the victim can be used in certain circumstances
If the case goes to trial, women cannot be guaranteed that their past sexual history will not be used by the defence to discredit, humiliate or intimidate them. In R v Seaboyer (1991) the Supreme Court of Canada struck down as unconstitutional the Code section that absolutely barred introduction of women's past sexual history by the defence, apart from several exceptions (ie when the prosecutor raised the issue first; when that sexual history involved the accused himself; when the identity of the perpetrator was at issue, etc). It did this on that basis that accused's men's rights to a fair trial could be compromised if they were to be prevented from introducing women's sexual history to help show their innocence.
This decision received what was at that time the most widespread opposition from the Canadian public, leading the Department of Justice to overhaul the law of sexual assault. The new Code section dealing with sexual history evidence provides for criteria for the admissibility of this evidence and a process for determining its admissibility, left in the hands of individual judges. Women therefore must live with the uncertainty of whether they will be confronted with this evidence should they go to court.
1995: Private records of the victim can be used in certain circumstances, with few restraints on aggressive cross-examination of the victim
Women who testify in sexual assault trials must also bear the uncertainty of whether their private records -- health, mental health, abortion, counselling -- will be disclosed against their wishes to the defence and used against them in court. In O'Connor (1995) the Supreme Court ruled that accused men's rights to a fair trial would be infringed by any absolute ban on their access to women's private records in sexual assault trials, giving the discretionary power to judges to decide on a case-by-case basis whether a woman's records must be disclosed first to the judge and possibly also to the defence, who may in turn use them to cross-examine the woman. Parliament responded to the O'Connor decision by enacting new Code sections to govern the criteria and process for judges determining whether women's confidential records will be disclosed over their objections.
Furthermore there are few legal or ethical restraints placed upon defence lawyers who cross-examine women using what are known "rape myths" –- ie. that women's manner of dress incites men's assaults -- to confront the woman with her alleged responsibility for the sexual assault, whether by accepting an invitation, indulging in alcohol or drug use, or some other behaviour.
1992: Silence does not equal consent
On the positive side, the law of consent has been interpreted consistent with women's rights to sexual and bodily integrity in many cases. In M(ML) (1992) the Supreme Court ruled that silence or passivity does not amount to consent, meaning that it is criminal activity to proceed to sexual activity assuming that the woman's failure to resist amounts to her agreement. In Ewanchuk (1999) it said that sexual touching is only lawful if the woman affirmatively communicated her consent, whether through words or conduct.
1991: Victim cannot consent to intentional infliction of bodily harm
Furthermore, the ruling from Jobidon (1991), where the Court held that men engaging in a fist fight cannot consent to the intentional infliction of bodily harm, has been applied to sexual assault causing bodily harm by the Ontario court of Appeal in Welch (1995). This means that there are forms of physical and sexual contact -- arguably strangulation -- that, in the public interest, cannot be lawfully consented to and give rise to potential criminal charges.
2011: Consent cannot be communicated in advance
Most recently in JA (2011) it said that "consent" cannot be communicated in advance, making it criminal to touch sleeping or unconscious persons in a sexual manner. Even if consent is communicated, the Court has said it is negated where the other party has failed to disclose their HIV status if there is a significant risk of serious bodily harm, defined as "a realistic possibility of transmission" (Mabior 2012) or where, having decided to prevent pregnancy, a woman is defrauded about the birth control (Hutchinson 2014).
Reporting sexual assault
Women must truly be what one Australian judge called "heroines of fortitude" to brave these many hazards and report sexual assault. And if they do, they are overwhelmingly likely to be very disappointed -- actually, traumatized -- by the outcome.
Elizabeth Sheehy is a Professor of Law, University of Ottawa Faculty of Law, Shirley Greenberg Professor of Women and the Legal Profession, and Vice Dean Research. She is the editor of Sexual Assault in Canada: Law, Legal Practice and Women’s Activism Ottawa: University of Ottawa Press 2012 (double volume book), 819 pp. which is available on Open Access here. She is the author of Defending Battered Women on Trial: Lessons From the Transcripts (Vancouver: UBC Press, 2014).
Photo: flickr/womens enews
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