Sexual Assault Law Reform in Canada as a Catalyst for Social Change

2. Sexual Assault Law
Reform in Canada as
a Catalyst for Social
Change
Professor Janine Benedet
Allard School of Law, UBC
April 2016

3. Law and Sexual Assault
• Do we live in a “rape culture” and, if so, what
does that mean for law?
• Have we replaced old rape myths with new
ones?
• What role does criminal law have to play in
this area – should it lead or should it follow?

4. What are “rape myths?”
• Some rapes are non-violent.
• It’s worse to be raped by a stranger than
someone you know.
• A woman who is raped will complain right away.
• A woman who is raped will have injuries.
• Women make up claims of rape out of spite or
revenge or embarrassment.
• If you are attacked you should just give in and get
it over with.

5. 1892-1982: The Old Laws
The most serious sexual offence was rape.
Other offences included indecent assault,
buggery, and gross indecency.
These offences were:
- Gender-specific
- Punished according to a hierarchy of sexual
acts
- Subject to a marital rape exemption

6. (Non)Consent: The Old Laws
• Non-consent must be proven by the Prosecution
(the “Crown”)
• No definition of non-consent or consent in the
Criminal Code for the first 100 years (1892-1992)
• Courts defined non-consent in terms of expected
physical and verbal resistance
• Victim was expected to clearly demonstrate her
lack of consent
• Jury warned not to convict without corroboration

7. 1983 Reforms
• Rape replaced with new offence of sexual assault:
– Application of force (physical contact)
– In circumstances of a sexual nature
– Without consent
• Marital rape exemption abolished
• Gender-neutral
• Influenced by Charter of Rights (s. 15)

8. 3 Levels of Sexual Assault
• Sexual assault Level 1
– Any sexual contact without consent
• Sexual assault Level 2
– Weapon
– Bodily harm
– Multiple perpetrators
• Sexual assault Level 3
– Wounds, maims, endangers life

9. (Non) consent in 1983 reforms
• Consent/non-consent still undefined
• Corroboration requirement abolished
• 4 non-exhaustive circumstances in which
submission does not equal consent (s. 265(3)):
– Application of force
– Threats or fear of force
– Fraud
– Exercise of Authority

10. Did the reforms “work”?
“No may sometimes mean maybe, or wait a
little while [and try again]….”
The woman’s expression of non-consent must
be “clear and unequivocal.”
R. v. Letendre (1991)

11. 1992 Reforms
• Consent is now defined in s. 273.1(1) as the
“voluntary agreement of the complainant to
engage in the sexual activity in question.”
• Further examples of non-consent in 273.1(2)
include: incapacity; abuse of trust or
authority; consent by a third party;
discontinuing consent
• Did these reforms work?

12. R. v. Ewanchuk (lower courts)
• Victim believes she is having a job interview
• Says no and stop several times
• Tries to remain calm and not show fear
• Trial judge acquits on the basis of “implied
consent”
• Court of Appeal agrees (2:1) noting that the
17 year old victim could have met his clumsy
passes with a slap

13. R. v. Ewanchuk (1999)(SCC)
• Non-consent for the purposes of the criminal act
is measured by whether the victim in her own
mind wanted the sexual activity to take place.
• Victim’s words and behaviour may be evidence
that confirms or contradicts her state of mind.
• No presumption of consent and no implied
consent
• Non-consent for the purposes of the mental
element is measured by the communication of a
“yes” by words or conduct

14. Honest/Mistaken Belief in consent
• A negation of the mental element of sexual
assault (knowledge of non-consent)
• Treated as a defence of “honest belief” or
“mistaken belief” Pappajohn (1980)
• Accused must give the defence an “air of
reality” Osolin (1993)
• Crown must then disprove the defence.

15. Limits on the Defence (1992)
• The belief in consent cannot be grounded in
intoxication, wilful blindness or recklessness:
Sansregret (1985); s. 273.2
• The defence does not apply where the accused:
“did not take reasonable steps, in the circumstances
known to the accused at the time, to ascertain that
the C was consenting.”
(s. 273.2(b))

16. An Affirmative Consent standard
• Defence requires a belief that consent was
voluntarily and affirmatively communicated by
the words or conduct of victim.
• A belief that passivity or a lack of objection is
consent is a mistake of law, not a mistake of
fact that can provide a defence.
• Women are not walking around in a perpetual
state of consent to sexual activity.

17. No “advance consent”
• Consent is measured at the time the sexual
activity takes place
• Victim cannot give consent in advance to
sexual activity that will take place when she is
asleep or unconscious
• Victim must be able to withdraw consent and
must be conscious throughout the sexual
activity
A.(J.) (2011)

18. Evidentiary Reforms
• Restrictions on the use of sexual history (including
with the accused)
• Restrictions on access to therapy records
• Rule of recent complaint abolished
• Corroboration rule abolished

19. Did these reforms work?
• Credibility of victim’s claim that the sexual
activity was unwanted is usually at issue
• Risk of assumptions about what is or is not
typical/normal/expected of a person who has
just been sexually assaulted
• Failure to consider effects of power
imbalances and coercive circumstances –
consent must be voluntary.

20. Reporting and Conviction Rates
• Reporting rates have not changed.
• 15% of sexual assaults are reported, less than
1% are convicted.
• Highest rate of reported sexual assault is girls
aged 13-15
• 95% of charges are at level 1
What explains this?

21. Intoxication and consent
No consent where the complainant is
“incapable of consenting”: s. 273.1(2)(b)
– Unable to understand what is happening and
make decisions
– Voluntary intoxication unfairly held to higher
standard
• Memory loss an evidentiary challenge
– Evidence that victim would not consent?

22. Intellectual Disability
• May also raise issue of incapacity to consent
• Seldom argued and threshold appears high
• Conditioned compliance is common
• Victim may be unaware that she can refuse sexual
activity

23. Confronting the challenges
• A consent standard, no matter how
progressive, puts the focus on the woman
• Even if no means no, and silence means no, a
yes is not always a valid yes
• Rules around credibility make it very hard to
convict without corroboration, which is rare
• Courts continue to want a “good victim”

24. What do we think we know about
sexual assault?
• “Rape is violence, not sex.”
• “Anyone can be sexually assaulted.”
• “Men who rape are sick.”
• “Consent is a grey area.”
• “Some women like it rough.”
Are these the new rape myths?
Can law reform ever be a match for rape culture?

25. Sexual Offences Against Youth
• Offences against persons under 16
– S. 151 Sexual Interference
– S. 152 Invitation to sexual touching
• Offences against 16 and 17 year olds
– S. 153 Sexual exploitation of a young person
• Offences against persons under 18
– S. 172.1 Luring a child
– S. 163.1 Child pornography
– S. 286.1(2) Obtaining sexual services

26. Age of consent
• The age of consent to sexual activity operates
on a sliding scale:
• Those 16 and older can consent to a person of
any age except:
– In prostitution and pornography
– Other person in a position of trust, authority,
relationship of dependency or exploitation

27. Age of consent, cont.
• Those aged 14 and 15 can consent to a person
who
– is less than 5 years older and
– is not in a position of trust or authority, or a
relationship of dependency or exploitation
• Those aged 12 and 13 can consent to a person
who
– is less than 2 years older
– is not in a position of trust or authority, etc.

28. Fraud vitiating consent
• Fraud as to the nature and quality of the act:
e.g. claiming sexual touching is part of medical
treatment
• Fraud that puts partner at significant risk of
serious bodily harm: e.g. sabotage of
condoms Hutchinson (2014)(SCC)

29. Non-disclosure of HIV+
• Failing to disclose one’s HIV+ status may
amount to fraud negating consent where
there is a “realistic possibility of transmission.”
This will be true unless:
– A has an undetectable viral load and uses a
condom OR
– C may already be HIV+ OR
– C would have consented anyway
Mabior and C.(D.) (2012)