Sexual Assault Law Reform in Canada: A Work In Progress

 

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Sexual Assault Reform in Canada; A Work in Progress

In reviewing research on sexual assault and the Canadian Justice System there is a clear indication that sexual assault reform has been an ongoing process that, while it is far from perfected, strives to improve.  Over the course of Canadian Law history laws surrounding consent and gender equality has faced a great deal of scrutiny.  This paper provides a timeline for Canadian law reform regarding sexual assault, examines the current state of sexual assault in the CJS with a specific focus on the Alberta Courts and the Supreme Court Rulings, and examines the challenges outlined in addressing sexual assault, providing a basis for the argument that further reform is needed.

Sexual Assault in Canada

Statistics Canada has conducted several data collection projects, some of which have addressed sexual assault.  According to one such report, authored by Brennan & Taylor-Butts, “Sexual assault in Canada, 2004 and 2007,” sexual assault is a prolific problem in Canada, impacting women at a disproportionately high rate (2008).  The authors explain the differences found between the General Statistics Surveys (GSS) that gather information from a portion of the population in Canada, and the Universal Crime Report (UCR), which connects data from reported crime only, a difference that is explained by the relatively low reporting rates for sexual assault.   According to Taylor-Butts, the data collected via GSS indicates that roughly 2000 incidents of assault occur for every 100000 persons, and they note that this is contrary to data from Universal Crime Reports which show 73 of 100000 persons report sexual assaults (Brennan & Taylor-Butts, 2008).  Brennan & Taylor-Butts suggests that this discrepancy may indicate that only 3.65% of assaults are reported to the police in Canada (2008).  Their data demonstrates barely over one third of sexual assaults reported result in charges being pursued, whereas more than half of other crimes result in charges (Brennan & Taylor-Butts, 2008).  In examining  sexual assaults that are reported, Brennan & Taylor-Butts note that police clearance rates are highest when there is grievous harm done to the victim during the assault (68% clearance) as compared to level one and two assaults (42%); that in cases that go to court, adults are found guilty 49% of the time, youth 63% of the time (2008).  Furthermore, Brennan & Taylor-Butts report, those who are sentenced in sexual assault cases are remanded to custody 54 % of the time (adults) and 12% of the time (youth), with probation being quite common in cases where convictions occur (2008).

These statistics alone indicate that the current criminal justice system in Canada does not appear to be meeting the needs of society when it comes to addressing sexual assault. While there is a great deal of research across several fields of study examining sexual assault, it remains extremely challenging to ascertain any real understanding of the extent of sexual assault in our society, due to both the underreporting by victims and the low report-conviction ratios for this type of assault. The former is believed to be directly impacted by the latter, and the latter is believed to be in part due to the high rates of unfounding (a term for when police discount a crime that is reported) compacted by the low rates of charges being pressed in this type of assault.  What is clear, is that at every step of justice proceedings, there are barriers to justice, from the perseverance of ‘rape myths’ to the lack of understanding as to the psychological research on sexual assault and its impact on victims.

The impact of the Criminal Justice System (CJS) when it fails to satisfactorily address sexual assault are many; reduced reporting, decreased confidence in policing, restricted access to resources for victims and, increased the risk factors for gender based violence (Benedet 2014, Randall 2010, Conroy & Stassa, 2016).   These problems make it imperative that the challenges sexual assault poses for the CJS are researched and understood (Conroy & Stassa, 2016).  The barriers that cause this struggle include:

  • Persistent beliefs of myths about sexual assault
  • Lack of understanding regarding consent
  • Persistent and erroneous beliefs regarding victim behaviour
  • Revictimization during investigation and court proceedings
  • Lack of transparency and oversight of police investigative practices and the prosecutors decisions to pursue charges or not

History of Sexual Assault Law Reform

Laws regarding sexual assault have undergone many changes, some of which are credited to women’s advocacy groups and liberation movements (Randall, 2010) and other times a reflection of societal change (Benedet, 2014).    Benedet (2014) noted that prior to 1968, sexual offences were once defined by the act rather than according to the suffering of the victim, they were written in gendered terms, and even included consensual acts that, at the time, were considered immoral, such as anal sex between male partners.  In 1968, homosexual activity was decriminalized for those over the age of 21 (Benedet, 2014).

According to researchers such as Randall, the women’s movement saw a great success in reforming sexual assault law in 1976, when the “Rape Shield Laws” were implemented (2010).  This reform added a section to the Canadian Criminal Code that required defense lawyers to request the judge hear their reasoning for including sexual history in a private hearing, and only upon agreement of the judge were they permitted to pursue this line of questioning in court (Benedet, 2014). In 1982, this was amended to bar defense lawyers from using the victim’s sexual history as a way to discredit them as witnesses (Randall, 2010).  Furthermore, utilizing the Canadian Charter of Rights and Freedoms, specifically section 15(1) in which we are granted the right to legal equality free of discrimination based on sex, rape was abolished and sexual assault was introduced in the criminal code (Benedet 2014).  This reform was of great import, as this acknowledged that any act that compromises a person’s sexual integrity was criminal, regardless of the gender of the parties involved (Benedet, 2014; Randall, 2010).

Randall then indicates that further gains were made in 1983, when the protection afforded to married men was removed, which meant that the law no longer regarded wives as consenting by way of marriage and thus husbands could be charged for sexually assaulting their wives (2010).  The bill, (Bill C-127) also created a tier of charges depending on the level of violence used, and the wording reflected that sexual assault was no longer based on penetration alone (Randall, 2010).

Another significant reform occurred in 1992, when section 276(1) of the Criminal Code was revised to include that the “belief of consent” could no longer be used as a defense in regards to sexual assault.  If the accused was willfully  inebriated, chose to ignore signs of nonconsent or if they did not actually check to see if they did have consent (Randall, 2010).  The latter is of particular note, as this set the foundation for affirmative consent to be a legal requirement for sexual activity; no longer was lack of a struggle considered consent (Benedet, 2014).

Benedet argues that section 276(1) made the use of a rape victim’s sexual history inadmissible in any use that perpetuated the twin myths of rape (2014)  The twin rape myths refer to the mistaken belief that women are frequently likely to false report and women who are sexually active less deserving of court protections (Randall, 2010).  Prior to this amendment, these myths were permitted as a line of questioning and as determinants when ruling on sexual assault cases (Randall 2010; Benedet 2014).

By 1990 the courts were becoming more savvy to the social implications of sexual assault.  Benedet notes that in 1997, a Supreme Court ruling in R. v. O’Connor included an acknowledgement that section 15 of The Canadian Charter of Rights and Freedoms plays an integral role in addressing sexual violence, due to the gendered nature of sexual violence that predominantly impacts women and children, and is in turn is detrimental to women’s ability to participate in society.  This notion that sexual assault was not just an act of violence but a gender based attack on dignity was upheld by the courts in R. v. Osolin, in which the judge stated that sexual assault was a “denial of any concept of equality for women” (2014).

Victims of sexual assault face many challenges when interacting with teh CJS, and have reported feeling revictimized by the process (Brennen & Taylor-Butts, 2008).  Victims are not represented in court, but instead are witnesses to their assault, suggesting that law reforms regarding sexual assault may not be able to address the entirety of the challenges that the CJS faces when addressing such crimes.  Recent judicial rulings in Alberta may serve to demonstrate that many of the challenges regarding these cases are due to lack of education and understanding CJS officials have regarding sexual assault.  These officials often make decisions that indicate a lack of knowledge regarding the behaviour of victims, the impacts such assaults have on the victims, and the laws regarding consent.  Officers often decide to unfound a complaint based on their belief that the accuser does not meet their expectation of how an actual victim behaves.  Prosecutors have determined to not proceed with charges in cases where the victim is less than ideal.  Judges have acquitted based on their belief in similar stereotypes.  These erroneous beliefs play a significant role in the way in which the CJS addresses sexual assault, particularly during such cases the victims are witnesses and these stereotypes impact a victim’s credibility with each level of interaction with officials of the CJS.

Stranger Danger Myths

Although research indicates most sexual assaults are committed by a person the victim is familiar with (Conroy & Scassa, 2016), both police and the courts persevere in their believe that stranger rape is more believable than acquaintance rape.  This is demonstrated by several court cases, in that the judgements included statements casting blame on victims for associating with men in ‘high risk’ situations and clear statements of how being assaulted by a stranger, particularly in one’s own home, is a serious violation (Benedet, 2014).  In 1983, in R.  V. Brown the court commented in its ruling that when a woman chose to go drinking with a man, then enter his home in the middle of the night, that she must be aware of the danger she in (Bennett, 2014).  In another case the same year, R. v. Henry, Bennett reports the judge referred to acquaintance rape as an incident of little matter, stating it was “a normal social evening that turns into a criminal offence,” specifically in comparison to the violence that often occurs with stranger rape (2014).  Also, police are less likely to unfound reports in which the assailant is a stranger, indicating a perseverance of rape myths (Conroy & Scass, 2016). This adherence to the myth of stranger danger is worrisome given that the World Health Organization Sexual reports that sexual assault is most often between partners, with between 15-71% of women reporting having been sexually assaulted by a partner (Randall, 2010).

No Harm if no Physical Harm Myth

Kennedy’s (2012) article,”The relationship of victim injury to the progression of sexual crimes through the criminal justice system” highlights that the degree of physical injury positively impacts the likelihood of a case being investigated and prosecuted, as well as increases the potential for an assailant to be punished by law. He found physical injury was positively correlated to nearly all facets of the criminal justice system.  The more severe the physical injuries sustained during a sexual assault, the greater likelihood of the victim reporting the assault, of police investigating the assault, the higher the likelihood of the crime being prosecuted, and the assailant being convicted.  Conversely, victims with no notable physical injuries were less likely to report, and if they report, the police were less likely to investigate.  If there was an investigation, the prosecutor was less likely to prosecute, and the judge less likely to convict.  According to Kennedy, the only aspect of the proceedings that did not seem to be impacted by injury was sentencing severity; with studies of sexual assault sentencing in Canada showing that physical injury was not significantly correlated with harsher sentences (2012).  Benedet concurs, noting that in R. v. P.T.M., in which a victim was raped by her common law spouse, the court stated that this assault was considered non-violent and therefore the harm did not include “undue violence”, a statement that was then used to justify a light sentence (2014), and in R. v. Sitter, during which the lack of physical trauma to the genitals combined with the victim not running away resulted in the court viewing the victim as complicit in her own sexual assault (2014).

Ideal Victim Stereotypes

Randall notes that the CJS appears to still struggle with the belief that ideal victims will struggle, ‘yell no’ and fight back, and once assaulted they will be visibly upset or perhaps hysterical throughout giving a statement (2010).  Randall explains that there are several tools and strategies that victims of sexual assault utilize that are misconstrued by the CJS, including dissociation, (the withdrawal of the person from being as aware of their circumstances), minimizing both the assault and the assailant’s responsibility, and “giving in” rather than fighting or fleeing (2010).

Courts, Randall opines, still lack the psychological knowledge of interpersonal violence and the coping mechanisms that accompany it. He found that ideal victim beliefs were consistent with officer accounts of discounting women who reported sexual assault due to the victim’s calm demeanor, for example, and this misunderstanding of coping mechanisms; such as minimizing, capitulating, self blame, etc., creates a barrier to women seeking support within the CJS (2010).  Randall further explains that police view of victims was negatively impacted if the victim had been drinking, even though police opinion of the accused assailant remained unchanged regardless of their level of intoxication.  Randall also notes that the Crown is less likely to proceed with charges if they view the victim as anything less than ideal- that the CJS is less likely to proceed with charges for victims who live high risk lifestyles, or if they are the wife of the assailant (2010).   Benedet notes that lack of resistance can implicate the victim, using the example of R. v. Podetz, in which the victim was discredited due to the fact that she not run or cry out (2014).   Randall observes that the lack of vigorous resistance is often used by the CJS as an indication that the witness was lacking credibility, although this is not supported by research in human behaviour, and in spite of Canadian law having never required proof of resistance in sexual assault (2010).

Sexual History

Benedet expands on the misuse of information regarding the victim’s sexual activities which still occurs in the CJS (2014).  For example, in R. v. Scovill, the judge allowed the defense to include that complainant had had sex that evening prior to the assault, even though the victim herself brought up that this was not permitted.  The judge noted that as the complainant had been sexually active the night of the assault, that this activity was pertinent, with a comment toward the complainant that the crime she was accusing her assailant of was a serious one. In another case, that of R. v. Moulton the Court of Appeal ruled that the Rape Shield Laws did not extend to acts of prostitution “since those would be relevant to her credibility” (Benedet, 2014).  Benedet argues that these statements and inclusions of victim’s sexual activity or histories demonstrates how some officials in the CJS believe that sexual activity is an indication a woman may make a false complaint of rape (2014).

Erroneous Unfounding

  • Erroneous unfounding of sexual assault complaints has not been sufficiently studied in Canada, yet it has been noted to be one of the reasons why victims choose to not report their assaults.  According to Conroy & Scassa, the CJS has resisted efforts to examine and critique unfounding of sexual assault cases (2016).  According to the authors, Philadelphia has implemented, with measurable success, a model in which victim advocates work with police to review sexual assault records.  This program, which specifically promotes transparency and accountability in the processes for unfounding sexual assault complaints, has met resistance here in Canada.  Unfounding is a term for when a crime reported to police is discounted.  When it comes to sexual assault reporting, unfounding occurs at higher rates than for any other type of crime.  This wrongful unfounding, argue Conroy & Scassa (2016), fosters a myriad of societal problems, including the following:
  • The accused is free to both assault more victims and the complainent can be revictimized by the accused and the CJS
  • Police are less likely to believe future reports from teh victim
  • Victim’s confidence in police and the CJS is reduced
  • Other victims discouraged from reporting assaults
  • Skews the crime statistics regarding sexual assault.
  • Perpetrators less likely to view the CJS as a deterrent when it comes to assaulting other victims in the future
  • Skewed crime statistics affect funding and resources for victims of sexual assault

.

While research into the causes of unfounding are limited, preliminary studies indicate unfounding occurs more frequently when the complainant is not visibly upset which in turn indicates a lack of understanding as to how victims process trauma (Conroy & Scassa, 2016).  Randall, who notes that there is a “lack of independent oversight for police failures” in regards to sexual assault; and that the use of victim’s personal records to undermine their witness reliability and that police ‘unfounding’ of sexual assault complaints, though largely unstudied, indicates that police rely on stereotypes, and unfounded reports where they do not feel that the victim is conforming to the ideal victim (2010).  Furthermore, this lack of reporting appears to be on the rise; the Department of Justice Canada reports that sexual assault ‘unfounding’ has been indicated as one of the causes for this lack of reporting (Randall, 2010).

 

Consent and Rape Myths in Court

In the cases that are tried in court, these same erroneous beliefs impact the court’s findings.   Court findings are impacted because of consent, the legal concept of which is often misunderstood by the lower courts (Conroy & Scassa, 2016).  In the case of R. v. M. made headlines when the Nova Scotia Supreme Court overturned a conviction and acquitted astep father of assaulted, noting that the victim’s passive response (she pretended to stay asleep) was implied consent.  The Supreme Court of Canada restored the conviction, noting the lower court’s assumption that consent was implicit in her lack of reaction was incorrect, that lack of resistance was not to be confused with consent (Benedet, 2014). One of the most notable rulings, according to Benedet, is R. v. Ewanchuk.  This case involved an adolescent who was sexually assaulted by an adult posing as a potential employer.  The victim stated ‘no’ at several stages during the assault, and each time the assailant stopped for a moment, then resumed his assault.  The Alberta Court acquitted the accused, based on the testimony of the victim, in which she explained that in order to not antagonize her assailant, she attempted to remain calm.  The Alberta Court rules that this lack of emotional state implied consent.  Upon appeal, the acquittal was barely upheld.  The judges explained their rulings thusly:

  • Criminal intent had not been established
  • The accused was “not criminal so much as he was acting under the influence of his hormones”
  • The “life of the accused would be ruined by (a verdict)” This point is noteworthy, as the accused already had more than one sexual assault priors)
  • The victim was not virginal and therefore harm was minimal

Dissenting opinions noted the inherent reliant on rape myths, and arguments were made that women were not to be considered “in a state of legally consenting,” that consent could not be implied but required affirmation, and that the ruling made the victim “culpable in their own assault”  (Benedet, 2014).

When this case went to the SCC, the acquittal was not only overturned, but the SCC also found the accused guilty (Benedet, 2014).  Benedet observed the ruling included the statement that passivity was not consent, consent instead was to “be measured based on the complainant’s own desires” and that Justice Major made clear actus reus of sexual assault is proven, where the complainant did not, in her own mind, want the sexual act to occur (2014).  Furthermore, this ruling relied on the legal definition of consent, which is affirmative consent (Randall, 2010).  The R. v. Ewanchuk ruling is very important as it changed the standard of consent from active resistance to active and voluntary consent (Benedet 2014; Randall 2010).

Alberta Courts

Even with this ruling on consent by the SCC, use of antiquated rape myths continues to appear in court rulings.  Recently, a few Alberta Justices have made judgements that either relied on rape myths or misunderstood consent laws. In the case of  R. v. A.D.G., the Alberta trial judge, Justice Yamauchi, acquitted the accused of charges that he had sexually assaulted his three daughters (Fine, 2016).  Justice Yamauchi’s ruling included statements that the complainants were not credible, due to the length of time it took for them to come forward with their allegations (Fine, 2016), although in Canada there are no statute of limitations for sexual assault (Randall, 2010).  The Alberta Court of Appeal ordered a retrial, noting that Justice Yamauchi acquitted based on ‘myths and stereotypes’ of rape (Fine, 2016).

In the case of R. v. C.M.G., Justice McIlhargey was found by the Queen’s Bench to be relying on the same line of reasoning when he acquitted a sixteen year old who was accused of raping a thirteen year old female (Fine, 2016).  Justice McIlhargey ruled that as the complainant did not yell or run away during the assault, she was not a credible witness (Fine, 2016).  The Alberta Court of Appeal has overturned the acquittal and ordered that the accused be retried (Fine, 2016).

In R. v. J.R. Justice Savaryn acquitted a teen boy who was accused of sexually assaulting a teen girl in a school hallway, citing that the complainant “had not clearly expressed her objections to him”(Fine, 2016).  This judge is under internal review and the Alberta Court of Queen’s Bench convicted the youth, ordering that a judge other than Justice Savaryn be responsible for sentencing (Fine, 2016).

.Justice Robin Champ was reprimanded after acquitting a man accused of sexual assault and making comments to the victim that she could have closed her legs, and she should have sank her bottom into the sink to prevent the rape (Grant 2015).  This case, R. v. Wagar, went to appeal where  the acquittal was thrown out.  Justice Champ was also under review and has agreed to take additional training (Grant 2015).

In each of these cases, the justices relied on rape myths and false stereotypes when making their judgements, and as such their findings were not supported by the Alberta Court of Appeal.  These local cases alone indicate a need for both the reeducation of those who are involved with sexual assault cases within the CJS, andfor a shift in how sexual assault is addressed altogether.

Summary

Sexual assault predominately impacts women and children at disproportionately high rates and as such has been a challenging social problem for the Canadian Criminal Justice System to address.  The many reforms that have occurred reflect the evolution in our society and have been an attempted to further reduce sexualized violence.  Regardless of the legal changes and the multitudes of research studies  on this topic, the CJS still reports high rates of unfounding, and the self reporting surveys continue to indicate a very low rate of reporting. These two challenges are likely co-dependent in that unfounding feeds distrust of the justice system and lack of reporting limits the data available, such then can be misconstrued as reason to continue unfounded cases. To further complicate matters the individuals within the CJS often lack training and awareness of sexual assault and the psycho-social challenges that come with it, which in turn supports their reliance on rape myths and stereotypes, which has been indicated as a potential cause for wrongfully unfounded sexual assault cases.  With the widespread impact of sexual assault on our communities, it is of utmost import that the harm of sexualized violence is not further compacted by revictimization of those who report their assault, yet the very nature of a criminal investigation and the court process treats the victim as if they are witness, opening them to tactics meant to discredit them, in order to ensure that the accused is afforded the right to an appropriate defense.

Future Studies

Studies that determine the causes for unfounding of sexual assault cases are needed.  Without accurate data that includes the reasoning used when unfounding such cases, developing strategies to increase the number of sexual assault cases reaching the courts will not be easily formed. Data that demonstrates the reasoning behind unfounding, as well as the cognitive processes behind acquittals may provide the information needed to devise a strategy or platform to improve the ways in which our current system interacts with survivors of sexual assault.  Additionally, studies that examine court cases to identify prevailing beliefs which create obstacles to fair and just rulings on sexual assault would also be beneficial, allowing for the appropriate re-education of individuals who are struggling with consent and other legalities regarding sexual assault.

Discussion:

In this paper, the many challenges the CJS faces when addressing sexual assault cases were examined.  These challenges include the lack of reporting, wrongful unfounding, and the erroneous reliance on rape myths and stereotypes when making decisions regarding sexual assault cases.

Due to the far reaching impacts of sexual violence and the extensive amount of research examining the impact and behaviour of both victims and assailants, It may be worth pursuing alternative courts for sexual assault.   Investigation into a system that addresses sexual assault exclusively, with professionals who are trained in matters pertaining to sexual assault, would allow for those trained in matters pertaining to sexual assault to determine the likelihood of truth versus falsehood as well as to determine the most likely course of action to reduce recidivism.  Such a system could include a panel of trained and experienced experts who specialize in an aspect of sexual assault, be that the trauma victims expedience when sexuality assumed, or the criminogenic needs of those committing sexual assault.  This system could address the challenges outlined in this paper, as these issues oringinate with erroneous beliefs about victim stereotypes, acquaintance versus stranger assault, and sexist views of consent and gender.

In the absence of such a specialized system, contracted oversight of the CJS interactions with victims of sexual assault may also be a solution to consider.  Having a group that is educated and trained regarding sexual assault, in which they can examine the cases that are unfounded, and in which they can examine the cases that were turned away by the crown, and finally, in which they can examine the cases in which the courts acquitted those charged with sexual assault, would be a valuable resource for the victims and the CJS both.

Sexual assault law reform in Canada is a work in progress, as can be seen by the historical changes and the ofttimes contradicting judgements of the courts.  Currently, the burden of being front line sexual assault investigators often falls to the local detectives and officers, who may (often through no fault of their own) lack the training and resources to address sexual assault complaints with the compassion and education required to be effective and just.  This demonstrates that law reform, while important, only addresses one part of the problem, often leaving the CJS officials with the task of upholding the ever-changing laws while still struggling with their own views of sexual assault, and simultaneously lacking resources.   If sexual assault is going to continue to be addressed by police, then the appropriate resources and trading are required, in order for this social issue to be addressed appropriately and legally.

 

References

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