This is an essay I wrote for Women and Law, I chose to put it up because it shows that sexual assault law in Canada is relatively new and still has a long way to come. It also shows the terrifyingly low statistics of sexual assault convictions. Only 9% of sexual assaults are reported, only 33% of those result in charges, and only 11% of those result in convictions.
That means that only 0.33% of sexual assaults in Canada result in convictions.
So read on and tell me what you think.
Sexual assault law in Canada has come a long way but still has many gaps (Tang, 1998), which become apparent when looking at the case of R. v. O’Connor, case law surrounding sexual assault and the production of records, and victimization statistics from Canada. With the introduction of additional reforms to increase the involvement of women and minorities in the Canadian legal system and to decrease the instances of sexual violence against women, hopefully the legal system can become a symbol of equality and women’s rights. In analyzing at the Canadian legal system, it is also important to understand that it is inherently gendered and has traditionally be developed, interpreted, and implemented by men, making it difficult for women-centered reform and equality to be included (Davidson, 2011).
The case of R. v. O’Connor provides one of the clearest examples of the ‘discriminatory use of personal records in sexual violence cases’ (Busby, 2009, p. 519). In this instance, four Aboriginal women brought their former principal, priest, and employer to court for sexual assault that had occurred while he was in a position of authority over them. These women had grown up from the age of six in a residential school under O’Connor’s direct supervision and had become victims of sexual assault from O’Connor when they were in their 20’s and working under his supervision (Busby, 2009, p. 520). When in court, this discrimination was continued when O’Connor’s defense was able to acquire and utilize the women’s records from residential school—many of which would have been in part created by O’Connor. The women were also forced to release any additional records from therapy, counseling, or other services they may have acquired. During this case, it was argued that O’Connor’s right to a fair trial required accessing the personal records of the complainants in order to make a full defense and argument (Busby, 2009, p. 520). This case truly set the standard in allowing the accused to access the complainant’s personal files and records and cause further discrimination against and emotional distress to the complainant.
Following R. v. O’Connor’s ruling in allowing production, reporting of sexual assault decreased dramatically as did the numbers of women seeking counseling following sexual assault (Busby, 2009, p. 526). Therapists were forced to inform women seeking their services that any notes or proceedings of their meetings could be subpoenaed in the event that charges were brought to court. Group therapy sessions could exclude women who had experienced sexual assault as any group member could be subpoenaed and forced to attend trial if the case went to court (Busby, 2009, p. 526). Many women were left with little options and felt forced to choose between therapy and justice (Dawson, 2009, p. 528).
Bill C-46 amended the Criminal Code and applied some limitations to the production of the complainant’s personal records to try to apply a degree of protection to the complainant’s right to life, liberty, and security of person (Dawson, 2009, p. 528). These amendments were also made as the Supreme Court came to recognize that the production of personal records was requested almost exclusively in cases of sexual assault (Busby, 2009, p. 525) and are used to try to cause disrepute to a complainant’s credibility, actions, and character (Busby, 2009, p. 520; Dawson, 2009, p. 528). As production occurs primarily in cases of sexual assault and as women are the primary victims of sexual assault the production of records was discriminating against the privacy and rights of women and children as well as further discriminating and perpetrate stereotypes (Busby, 2009, p. 525; Belzil, 2009, p. 535). Bill C-46 was fought against in the case of R. v. Mills as the accused argued that in balancing constitutional rights he was being denied the right to a fair trial. In discussing the case Belzil (2009, p. 533) also stated that in sexual assault cases, the accused in on trial however, in utilizing personal records the complainant and their credibility is essentially put on trial. While Bill C-46 does provide some additional protection to women and victims of sexual assault, it also leaves the definition of relevance and its ability to further discrimination to be defined and interpreted by the judge (Department of Justice, Canada, 2011; Tang, 1998, p. 267), which allows for some elements of inequality to still be present.
As stated by Busby (2009, p. 523), when rapists select a victim, a trend is to look for vulnerability and availability and this has little to do with the actions of women themselves. Vulnerability becomes a key factor in the case of minority women as visible minorities in Canada face a higher instance of sexual assault and violent crime and tend to view the court poorly in terms of delivering justice (only twenty-two percent view it positively) and helping the victim (only twenty-nine percent believe the victim is helped) (Statistics Canada, 2008). As a result of this, visible minorities are less likely to report instances of crime and to instill their trust into the Canadian justice system. This idea of vulnerability rings true when analyzing the statistics surrounding victimization with 211 incidents per 1000 persons who are visible minorities and only 107 instances for non-visible minorities (Statistics Canada, 2008).
The lack of faith in the criminal justice system seems understandable when only nine percent of sexual assaults are reported, and of that only 33 percent result in charges, and of that only eleven percent result in convictions, meaning that only 0.32 percent of sexual assaults result in convictions (Davidson, 2011; Canadian Centre for Justice Statistics, 2008, p. 6). This leaves a staggering number of criminals walking free and leaves women and victims with a declining sense of trust in the Canadian legal system. The lack of trust in reporting sexual assault also makes it harder for women and victims to seek reparation and help for the acts committed against them; this cycle of thought leads not only to rape myths, but also to a stigma against the victim (Busby, 2009, p. 526). These beliefs further victimize the woman or victim in everyday life, and cause additional victimization regardless of whether the assault is brought to trial or not.
While the Canadian legal system has made substantial changes towards improving victim and complainant rights during sexual assault cases, additional reforms are necessary. Without changes occurring outside of the legal system, it is highly unlikely that legal reform will be realized to its full potential (Tang, 1998, pp. 266-268). Legal reform should be matched with education reform for all (potential victims and offenders) and additional support networks for victims should be developed—through sexual assault centres, health clinics, or support groups (Tang, 1998, p. 268) that would be developed outside of the reach of the court. Increased education would also increase the likelihood that women report all instances of sexual assault to authorities, as currently women are more likely to only report instances of sexual assault that they deem to be violent or have caused physical harm to them. Educational components would help to reduce the stigma associated with sexual assault and rape myths and these components should be developed with the support of groups catering to ethnic and religious minorities to help further the sense of community support (Council on American-Islamic Relations Canada, 2009; Tang, 1998, p. 268).
Belzil, J. (2009). R. v. Mills (Alta. Q.B.). In T. B. Dawson, Women, Law and Social Change: Core Readings and Current Issues (Fifth Edition ed., pp. 532-538). Concord, Ontario, Canada: Captus Press.
Busby, K. (2009). Discriminatory Uses of Personal Records in Sexual Violence Cases. In T. B. Dawson, Women, Law and Social Change: Core Readings and Current Issues (Fifth Edition ed., pp. 519-528). Concord, Ontario, Canada: Captus Press.
Canadian Centre for Justice Statistics. (2008). Sexual Assault in Canada, 2004. Statistics Canada. Ottawa: Minister of Industry.
Council on American-Islamic Relations Canada. (2009). No Stigma for Rape Victims in Islam. In T. B. Dawson, Women, Law and Social Change: Core Readings and Current Issues (Fifth Edition ed., p. 548). Concord, Ontario, Canada: Captus Press.
Davidson, T. (2011). Women and the Law.
Dawson, T. B. (2009). Bill C-46, An Act to Amend the Criminal Code (production of records in sexual offence proceedings). In T. B. Dawson, Women, Law and Social Change: Core Readings and Current Issues (Fifth Edition ed., pp. 528-532). Concord, Ontario, Canada: Captus Press.
Department of Justice, Canada. (2011, 11 22). Criminal Code (R.S.C., 1985, c. C-46) Sections 271-278.91. Ottawa, Ontario, Canada.
Statistics Canada. (2008, 11 17). Visible Minorities and Victimization: Findings. Retrieved 11 25, 2011, from Statistics Canada: http://www.statcan.gc.ca/pub/85f0033m/2008015/5002072-eng.htm
Tang, K.-l. (1998). Rape Law Reform in Canada: The Success and Limits of Legislation. International Journal of Offender Therapy and Comparative Criminology , 42 (3), 258-270.