How Canada's sex-assault laws violate rape victims

October 5, 2021
Globe and Mail
By Kirk Makin

It’s a crime like no other. A violation of the self as well as the body – an assault on trust, on privacy, on control. It’s also an offence with an afterlife: a sense of bruising shame and guilt.

And it happens to women in Canada every 17 minutes.

Some of those women place calls to services such as the Vancouver Rape Relief and Women’s Shelter – about 1,400 of them last year alone.

 “These are not just women who live in poverty or need,” says Summer-Rain Bentham, one of the counsellors who answers their calls. “These are women who are teachers, doctor or lawyers; women whose husbands may be police officers or judges.”

But if these women are hoping for more than support – if they are hoping for justice – the phones might as well keep ringing.

Less than half of complaints made to police result in criminal charges and, of those charges, only about one in four leads to a guilty verdict.

Women know this. Which explains why, according to the best estimates, roughly 90 per cent of sexual assaults, even those referred to crisis lines, are never brought to the attention of the authorities.

Queen’s University law professor Pamela Cross, an expert on sexual assault, says that if someone she knows personally were attacked, “I would advise thinking very hard” before calling the police.

It wasn’t supposed to be this way. Thirty years ago, after decades of pressure by victims’ advocates, there was a revolutionary change to the Criminal Code – starting with the very word rape.

The idea was to change culture, not just laws, to acknowledge that sex crimes are not about sex, but acts of physical and psychological violence, and to make it clear that victims should not be blamed but emboldened to seek redress.

Instead of the loaded word rape – with all its moral and social baggage – three levels of sexual assault were written into law, each level of escalating gravity.

But getting rid of the legal term “rape” didn’t stop it. In fact, many argue that it profoundly defanged the justice system and has resulted in lighter – not tougher – sentencing.

Now, the least severe form of assault accounts for 98 per cent of charges – up from 89 per cent a few decades ago. This, despite any evidence that perpetrators are becoming less violent.

What went wrong?

Rape versus sexual assault

Until 1983, a woman’s word was not enough.

Without independent, corroborating evidence, there was little chance of convicting assailants. This, despite the fact that, according to the Justice Institute of British Columbia, 80 per cent of sex crimes happen in victims’ homes – and are committed by friends, acquaintances, husbands, sometimes family members.

That made women angry. And not just those who had been attacked. In her groundbreaking 1975 book Against Our Will, activist Susan Brownmiller argued that “sexual force is a pervasive process of intimidation that affects all women.”

Some credit Ms. Brownmiller with spurring rape-law reforms in America. In Canada, the rise of women’s studies at law schools and the spread of rape-crisis centres were part of the impetus for change. But Christine Boyle, a University of British Columbia law professor who was instrumental in judicial change, also points to the Charter of Rights and Freedoms.

“[It] became a sort of bedrock for legal reform,” she says.

Suddenly the idea of rights – to be respected, to be protected – came to the fore. Out went the need to for a witness to corroborate a victim’s story. So did the push for complaints to be filed immediately or not be considered credible.

Steps were also taken to make complainants more comfortable when reporting an attack to police; to encourage judges to bring greater sensitivity to notions of consent and privacy, and to dispel blame-the-victim mythologies that focused on the comportment or attire of rape victims.

Women who committed sexual assault would now be held to account too, not just men.

And rape, that seemingly antiquated term, was folded, along with indecent assault, into a new crime called sexual assault. It covered everything from unwanted touching to any form of penetration – including offences involving a weapon or bodily harm.

Few voices were raised in opposition to the changes beyond those of defence lawyers, who complained that protection of the accused were being trampled in the rush to reform. Among activists, anything was seen as “an improvement over the old law,” as Pauline Duffet, then co-ordinator of the Coalition of Ontario Rape Crisis Centres declared.

But one letter to The Globe and Mail that appeared soon after the bill for legal reforms was passed in the House of Commons on Aug. 4, 1982, saw reason for concern among victims as well.

Jean Robinson of West Hill, Ont., warned that “rape itself would be considered trivial.”

Today, those trying to understand why reforms have backfired begin with the word rape.

Sexual assault has become “kind of a soft phrase – a joke used by people who want to be dismissive,” Prof. Cross says.

“They say: ‘Some guy probably brushed up against her in an elevator, so she screamed: ‘Sexual assault!’ We have lost the power of the word ‘rape’ in criminal law.”

Doing women a favour

That loss of power may be behind the odd spike in Level 1 sexual-assault charges.

Because a decline in violence doesn’t seem to explain it. The Justice Institute of British Columbia reports that 62 per cent of victims are physically injured in attacks; 9 per cent are beaten severely or disfigured.

These are attacks that may never be brought to light. But even Level 1 charges that are registered are alarmingly violent: According to Statistics Canada, victims were injured in 17 per of cases laid in 2007 and at least 2 per cent involved a firearm, knife or blunt instrument.

“The court records show that the guy had a weapon or that the victim was bruised or cut all over – why on earth wouldn’t they charge it higher?” asks University of Ottawa law professor Elizabeth Sheehy, an expert in sexual-assault legislation.

Many advocates suspect that police seek lesser charges because they are easier to prove. Women no longer need a witness to make a case – but they do need judges to believe their side of the story. However, the end result is that assailants are left with less serious criminal records and punishments.

“More and more, I see police deciding which cases are winnable, which ones are most likely to get a conviction,” Ms. Bentham says. “They think they are doing the women a favour.”

Blair Crew, a University of Ottawa law professor who studies police charging practices, says some police agencies are much worse than others.

He found that Ottawa’s force, for example, dismissed about one-third of complaints from 2005 to 2009 as unfounded and laid charges in only about 16 per cent of cases.

Wendy Leaver, a mainstay of Toronto Police’s specialized sexual assault unit for 20 years, says critics underestimate how professional investigators are. It is imperative, she says, that police balance their natural empathy for a victim with the need for caution before laying a charge that could ruin an innocent person’s life.

Yet overcaution can have grave consequences. Researchers in England have found that about 30 per cent of men convicted of sexual assault have had at least one previous allegation against them dropped as unfounded.

So “these men were able to be out there doing it over and over,” says Prof. Sheehy, who feels police should let prosecutors decide whether there is a reasonable prospect of conviction.

Reasonable steps

The reasonable prospect of conviction is often tied to the nuances of sexual behaviour – in particular, the issue of consent.

Ten years after the first wave of legal reforms, Parliament took another major step by specifying that tangible attempts must be made to ensure that a prospective sex partner is truly willing.

This has proved to be exceedingly complex for the courts: The Criminal Code says partners must take “reasonable” steps to confirm consent. But veteran jurists point out that reasoning is not always present when there is sex involved.

Ottawa lawyer Michael Edelson says there is so much nuance to sexual liaisons that men can genuinely mistake signals they receive.

“I see a lot of false complaints,” he says. “One of the big factors is that a lot of people are using drugs and drinking. They have sex and, at the end of the day, there are regrets. But it’s not sexual assault.”

This stance is reviled by victims and their supporters, but Mr. Edelson insists that lawyers must fight especially hard for clients because the stakes are so high. Being convicted can mean being added to a sex-offender registry, having your DNA kept on file and becoming a social pariah who has trouble travelling outside the country.

“When you start outlining the consequences to these defendants, they tend to become highly motivated to defend themselves aggressively,” he adds.

And while defence lawyers can no longer routinely probe a complainant’s sexual history or medical records, they can still try to persuade judges this information is relevant.

Prof. Cross, a consultant to several sexual assault clinics, says dealing with such requests can eat days of court time.

‘It tore my whole family apart’

Women’s advocates accuse the courts of consistently accepting the excuse that complainants somehow gave their consent even went they were in no condition to do so. (Studies done in the United States indicate that 52 to 64 per cent of young men admit to raping a woman after she has made a lack of consent clear, or while she was unable to convey consent.)

Equally outmoded, Prof. Sheehy says, is the belief that failing to report an attack right away makes a victim less credible, yet it “surfaces in judicial reasoning all the time.”

“You cannot presume that the first thing somebody who undergoes a traumatic attack is going to do is tell somebody,” she insists. “People in traumatic situations often walk away and say nothing. It takes time to process.”

To complicate matters further, many victims are torn at the prospect of turning in a friend or acquaintance.

As a youngster, Sherri, now 47, was sexually assaulted repeatedly, along with her sister, by an uncle and two cousins in their small Nova Scotia community. She intended to remain silent, but agreed to testify when her sister forced the issue.

When the uncle was convicted, the sisters were not only shunned, their own relationship broke down. “It tore my whole family apart,“ she says.

Sherri left for Halifax shortly afterward, determined to create a new life (even now feeling she must protect her identity), and says that, while exposing what had happened was cathartic, the courtroom ordeal was almost as damaging as the family fallout.

“The defence tried to say that, when we were four or five years old, we were going to my uncle and trying to ask him to do those things to us,” she recalls. “He was trying to say that we had been taught that behaviour by our father; that it was our fault.”

‘Friends and family discount’

The unusual intimacy of so much sexual assault affects sentencing too.

Most judges now attend courses to become more sensitive, but still hand out sentences, Prof. Boyle of UBC says, that suggest victims invited trouble by how they acted or dressed while out on a date, or with those closest to them.

Some Crown counsel say reduced penalties for assailants close to victims has been dubbed “the friends and family discount.”

For example, in October, 2009, the Ontario Court of Appeal imposed a 10-year sentence on a man convicted of assaulting a woman who was working a night shift at a convenience store.

The same month, it ruled on a man who had tied his wife to a bed, covered her mouth with duct tape, punched her in the face, cut off her underwear with a knife and threatening to slash her vagina before trying to rape her. Only on appeal was his sentencing increased to 21 months – and even then the sentence was conditional, so the man, by this time out of jail, didn’t have to go back.

Or there’s the Vancouver pub owner who pleaded guilty to committing sexual assault after administering a date-rape drug; his victim said she awoke in his bed, bruised and bleeding, with scant memory of the night before. His punishment: a nine-month conditional sentence.

Outcomes like this make going through a trial too much for many victims, Prof. Cross says.

“Most people can’t even talk about sex, let alone get up in a courtroom to talk about something like this while the person you are accusing sits there staring at you,” she says. “It’s a nightmare.”

Guilty as charged

Perhaps the most troubling question is whether that nightmare even pays off in the best cases.

Decades after laws around sexual assault were reformed, two-thirds of victims surveyed by the Department of Justice said they had little to no confidence in the police, the courts or the justice system. And when assailants are actually deemed guilty – when the system presumably works – then what? How do we stop assault from happening again?

“The criminal justice system isn’t there to help the victim heal – it is there to hold the perpetrator accountable, and I question whether it is even effective at doing that,” Prof. Cross says.

“Surely, what is more at issue is helping these young men. … They need to understand how to handle alcohol and associate with their peers differently. I just don’t think that plunging them into the criminal mire is helpful.”

An Ontario judge, speaking on condition of anonymity, says many of those passing sentence feel the same: “Within the judiciary, there isn’t a lot of consensus on the usefulness of jail.”

Perhaps that’s because changes to law were inadequate – or even harmful. Maybe we need words like “rape” – with its power to shock – back in our legal lexicon. Or we need some further clarity and training on how to use a three-tiered approach to sexual assault to really make it work.

But what the anniversary of this legislation may point to is also that law alone is not enough. Women still feel shame and guilt about sexual assault – and are treated as shameful and guilty by some police and judges, and by peers and assailants. Sentencing too often minimizes the intimate violation of sex crimes, the horror of what Nicholas D. Kristof has called the body as “crime scene.” Changing all that may require a bigger revolution indeed.

Meanwhile, all those women who place those calls to crisis lines are left on hold – or in despair.

Wendy Leaver, formerly with Toronto’s sexual assault unit, says the system is so debilitating, “I have had victims who just don’t care any more.”

By the numbers

17 minutes: How often a woman in Canada has intercourse against her will

80: Percentage of sexual assaults that happen in victims’ own homes

62: Percentage of victims physically injured in attacks

98: Percentage of charges laid forthe least severe form of assault

2: The number of years sexual assault offenders are sentenced to jail on average