31 Gender Bias In Sexual Assault Laws, Reporting, and Prosecution In Canada

Keywords: sexual assault, gender bias, law, discrimination

Content Warning: The topic of this paper covers the historical context of rape, sexual assault, and gender bias in current Canadian law. Examples of recent sexual assault cases in Canada are discussed, which may be emotionally distressing to some readers. If you need to reach out, please call the Vancouver Island Crisis Line at 1-888-494-3888.*

On August 4, 1982, the Canadian House of Commons passed An Act to Amend the Criminal Code in Relation to Sexual Offences and Other Offenses Against the Person (Biesenthal, 1990: 1). This act made fundamental changes to the Canadian Criminal Code, mainly towards the substantive, procedural and evidentiary components of sexual assault cases, and became solidified as Canadian law on January 4, 1983 (Biesenthal, 1990: 1). Although sexual assault has been recognized as a criminal offence for nearly 40 years, it remains one of the most underreported crimes in Canada, one of the hardest to prosecute, and statistics show disproportionately impacts women. For example, a study conducted by Statistics Canada looked at self-reported violent crime rates over a ten-year period covering 2004 to 2014; this study showed that while robbery and other forms of physical assault had declined roughly 35-40%, rates of self-reported sexual assault saw no decline (Perreault, 2015: 5). Additionally, Indigenous women in Canada experience a higher rate of victimization than any other demographic (Conroy & Cotter, 2017: 8). Why is it that a crime that has been recognized for nearly half a century is still vastly underreported and shows no changes to the rates of victimization while other violent non-gendered crimes report downward trends? This paper aims to look at the historical context of rape, which enshrines current and historical male discourses that condone or excuse male sexual violence, as well as discuss the present-day gender-based myths that impact women when attempting to report and prosecute their abusers.

HISTORICAL CONTEXT OF RAPE AND SEXUAL ASSAULT

In Canada, approximately 30% of all women aged 15 and older have experienced some form of sexual assault; however, current statistics suggest that only 6% of these assaults are reported to the police (Statistics Canada, 2019; Cotter, 2019). To understand the discrepancy between rates of victimization and the vast underreporting of sexual assault seen today, we first must look at the historical and cultural context of rape and the consequences of reporting. During early European development, patriarchal constructions of gender solidified male control and entrenched systems of male power (Whisnant, 2009). Women were seen as property, belonging to either their fathers or husbands. Their sexual purity determined their value; virgins were of high worth, and females who had sexual contact outside of marriage were deemed impure and of lesser value (Whisnant, 2009). Consequently, rape was viewed as a property crime that was committed against a woman’s father or husband; oftentimes, the reparation for committing this crime was to pay a fine to the male figure to account for the loss of value to his property (Burgess-Jackson, 1996). During this time period, women frequently kept their assaults quiet as it would lessen their societal worth and bring shame to their families; furthermore, courts at the time were more concerned about protecting men from accusations, and women received harsher punishments for false allegations than did the men who were found guilty of rape (Padureanu, pg. 85). As a result, a woman either stayed quiet or dropped charges in order to protect her standing in society, her value as a woman, and the reputation of her family. While this system of protecting men at the detriment of women’s bodily autonomy may seem outdated, it is still very much present within our current society.

Until 1982, the Canadian Criminal Code referred to sexual assault under three categories; rape, attempted rape, or indecent assault. Rape was written in law as “a male person commits rape when he has sexual intercourse with a female person who is not his wife” (Biesenthal, pg.1). This wording provided immunity for marital rape and perpetuated hegemonic male discourses in Canadian society that a woman was her husband’s property while denying her the right to bodily autonomy. Additionally, for a woman to charge her abuser, vaginal penetration was a required element and failing to report within a 24-hour time frame was often fatal to the Crown’s ability to prosecute (Somerville, et al., 2012). In 1982, the Government of Canada passed Bill C-127, which removed rape from the Criminal Code and replaced it with three sexual assault offences; basic sexual assault, sexual assault with a weapon, and aggravated sexual assault (Somerville, et al., 2012). These changes in the Criminal Code removed the idea that only men could be found guilty of sexual assault, marital rape was no longer provided immunity, proof of vaginal penetration was removed and failing to report immediately was no longer detrimental to pursuing charges (Somerville, et al., 2012). Sexual assault charges covered a broader spectrum of sexually violent crimes, provided more adequate protection for violence against women, and created stronger legal footing for women attempting to prosecute their abuser. These changes in the Criminal Code were meant to provide women with more protection towards bodily autonomy and gender equality; however, the gender roles and myths that have risen out of centuries of male-dominated attitudes toward the entitlement of a woman’s body have limited the ability of current sexual assault laws to be meaningfully applied.

RAPE MYTHS, STEREOTYPES AND SEXUAL SCHEMAS

Humans make sense of the world around them by creating schemas based on prior knowledge or experiences. The SAGE Glossary of the Social and Behavioural Sciences defines schemas as “knowledge structures of an event or concept based on previous perceptions of that event or concept” (Sullivan, 2009). While schemas can be created out of scientific knowledge and proven fact, they can also be built off widely-held myths and stereotypes that have remained prevalent or unchallenged over time. Rape myths, which are deeply rooted throughout history and legal doctrines, have continued to promote a patriarchal culture that condones male sexual violence against women and has enforced a system of inaccurate sexual schemas that continue to further male sexual dominance over women. ‘Real rape’ ideologies are based on inaccurate beliefs of what sexual assault looks like; commonly held ‘real rape’ myths suggest that the perpetrator will be a mentally deranged stranger, the assault will be violent, and the woman will fight back. There a numerous myths that are prevalent in current society that upholds negative beliefs around sexual assault. The majority of these myths perptuate the belief that women lie about sexual assualt as means of revenge or regret or victim-blame women for dressing certain ways, their use of drugs or alcohol nullifying the assualt, or not behaving in a certain manner post-assault. These myths often diminish men from accountability and shifts the onus onto female victims and victim-blaming; any assault that doesn’t align with ‘real rape’ stereotypes are discounted, and the legitimacy of the assault is brought into question. Current research suggests that although men are more likely to believe false schemas around sexual assault, widespread rape myth acceptance also has negatively affected a woman’s ability to process and understand her own experiences with sexual assault (Ryan, 2011). Not only do these sexual schemas exonerate men from culpability and help justify sexual assault by the denial that a ‘real rape’ occurred, women oftentimes shift their inner dialogue in a way that results in self-blame; “if I wasn’t so drunk; if I had fought harder; but he’s my husband; I shouldn’t have been there.” These internal dialogues strengthen gender role ideologies that classify women as submissive objects to be owned by men while also forcing females to take responsibility for their own victimization. It is critical to note that these stereotypes and ‘real rape’ myths do not only impact individual men and women’s understandings of what constitutes sexual assault; evidence shows that ‘real rape’ myths are so perverse that they obscure both police reporting and prosecutorial decision making within our criminal justice system (Johnson, 2012).

GENDER-BASED BARRIERS TO REPORTING AND PROSECUTING SEXUAL ASSAULT

As mentioned earlier, only 6% of sexual assault crimes are reported to the police; furthermore, statistics show that less than 1% of all reported sexual assaults resulted in the accused being convicted (Cotter, 2019; Johnson, 2012). What is it about sexual assault that makes it so difficult to reach a conviction? Police officers, judges, and court jurors are often seen as the ‘gate-keepers’ of our legal system, and they are not immune to upholding the negative sexual assault and gender stereotypes that construct current ideologies of rape culture. Research studies have looked to understand the impact of rape culture on police decision-making with findings that suggest officer adherence to ‘real rape’ myths and stereotypes (O’Neal, 2017). Police officer discretion allows officers to make judgements when responding to calls or complaints, and their decision on how to proceed can have an immense impact on case processing and legal outcomes (Acquaviva, et al., 2022). Police officers have the ability to use their discretion from the very onset of a sexual assault claim; they decide if the victim is deemed credible enough to believe, if a formal report will be made, what investigative resources will be utilized and whether or not a case moves forward by recommending charges to the Crown (Acquaviva, et al., 2022). Additional research has shown that police officers show more involvement and support in sexual assault investigations that follow patterns of ‘real rape’ myths, specifically when the perpetrator was a stranger who used physical force or weapons and forceful penetration was documented (Page, 2007). Not only are police attitudes towards offenders skewed by sexual assault schemas, but victim characteristics, heavily influenced by male perceptions of gender roles, also play a role in police discretion. Irrelevant victim characteristics interpreted by police can also impact legal outcomes when considering credibility in a case. Things such as the victim’s alcohol consumption, prior sexual history, the time it took to report the assault and level of emotionality all influence police perceptions of credibility, which in turn impacts the legal outcomes of the case (Page, 2007). This creates a deeply misogynistic bias within our policing system where only ‘legitimate victims,’ whose victimization follows traditional gender role expectations, are deemed worthy of legal intervention (Page, 2007). For the women that do come forward and report an assault, they can be met with skepticism, doubt and even blamed if they do not align with the ideal portrayal of the perfect victim. This creates a cyclical system that leaves women questioning the legitimacy of the sexual assault and further perpetuates the ‘real rape’ myths being upheld in society.

For those women who are deemed worthy of the criminal justice system, their fight against gender role expectations and patriarchal ideals does not stop after the initial police intervention. In sexual assault cases, a victim’s risk-taking behaviours can be called into question to discredit the legitimacy of her claim; perceived credibility, drug and alcohol use, prior sexual history, age and the victim/offender relationship can all be challenged to favour the accused’s innocence. As previously mentioned, the Canadian Criminal Code was amended in 1982 to reflect less restrictive wording around sexual assault; however, the amendment also brought another major development in sexual assault prosecution. Bill C-127, known as the rape shield law, was introduced in an attempt to reform the way victims of sexual assault were impacted by misogynistic attitudes persistent within the legal system (McNabb, et al., 2021). The rape shield legislation was meant to provide victims with expanded evidentiary protections; defence counsels would no longer be able to introduce the prior sexual history of the victim to negate her credibility at trial (McNabb, et al., 2021). Rape shield law was not only enacted to provide victims with stronger protections but to protect the entire court system from distorted truths based on rape myths and irrational lines of reasoning (McNabb, et al., 2021). This protective legislation was challenged time and time again by men who cited that questioning prior sexual history during the cross-examination was critical to their right to due process; the courts frequently sided with these complaints, thereby placing men’s perceived legal discrimination over a woman’s right to bodily autonomy and a fair trial (McNabb, et al., 2021). Despite the Supreme Court’s attempts to create rape shield provisions, we still see the use of irrational lines of reasoning and cruelty in cross-examination, as well as trial judges who are biased towards ‘real rape’ myths. During a sexual assault trial in 2014, Albertan Federal Court Justice Robin Camp was interrogating a victim on the stand when he questioned if she could have prevented the assault by closing her legs (Fine, 2016). Similarly, in a 2017 court case where a 17-year-old girl brought accusations against a 49-year-old man, Judge Jean-Paul Braun made assumptions that because the victim was overweight, she must have been flattered to receive attention from a good-looking man (Kassam, 2017). As we can see, the legal profession has historical ties to hegemonic masculinity and class privilege, which has the ability to strengthen the hierarchical and patriarchal social structures that uphold ‘real rape’ and perfect victim myths that are detrimental to prosecuting sexual assault cases (Craig, 2016).

ELIMINATING THE GENDER BIAS

Rape myths, the idea of a perfect victim, and historical gender expectations all have damaging impacts on women’s ability to report assaults and reach convictions within the Canadian criminal justice system. Not only are these myths illogically based on outdated beliefs, but they have damaging impacts on the adjudication of sexual assault trials. Canadian laws are meant to be equally applied to all, but as we can see, these laws can be bent to favour male dominance and perspectives while silencing gender-based violence. Moving away from a misogynistic approach to the legal prosecution of sexual assault will require a re-evaluation of the systems currently in place. Women coming forward with sexual assault allegations should not be met with police discretion based on an individual’s personal belief system; all accounts of sexual assault should require a thorough investigation regardless of if the victim is deemed credible by the responding officer. Additionally, all people working within the legal sphere (police officers, lawyers and judges) should be required to continue their education with yearly certifications that centre around current sexual assault research and victimization. While changing the gender bias in sexual assault reporting and prosecution may seem bleak, I believe that we are starting to see a shift in our criminal justice system. Judges, such as Camp and Braun, are being removed from their benches for their inhumane treatment of victims during the trial. Societal structures and gendered expectations are being called into question through the actions of feminist and sexual assault advocacy groups. Although it is debatable whether or not misogynist assumptions that permeate our legal system will ever be fully diminished, we are moving towards a more victim-centred system.

References

Acquaviva, B., Meeker, K., & O’Neal, E. (2022, January 25). Blameworthy Suspects and “Real Rape”: Assessing the Effects of Rape Culture-Specific Suspect Culpability Factors on the Police Decision to Arrest. SAGE Journals, 28(15-16). https://journals-sagepub-com.ezproxy.viu.ca/doi/full/10.1177/10778012211070314?utm_source=summon&utm_medium=discovery-provider#bibr31-10778012211070314

Biesenthal, L. (1990). Sexual Assault Legislation in Canada: An Evaluation. Department of Justice Canada. https://www.ojp.gov/pdffiles1/Digitization/140416NCJRS.pdf

Burgess-Jackson, K. (1996). Rape: A Philosophical Investigation. Dartmouth Publishing Co. https://www.ojp.gov/ncjrs/virtual-library/abstracts/rape-philosophical-investigation

Conroy, S., & Cotter, A. (2017, July 11). Self-reported sexual assault in Canada, 2014. Canadian Centre for Justice Statistics. https://www150.statcan.gc.ca/n1/en/pub/85-002-x/2017001/article/14842-eng.pdf?st=Qr9GO9Kz

Cotter, A. (2021, August 25). Criminal victimization in Canada, 2019. Statistics Canada. https://www150.statcan.gc.ca/n1/pub/85-002-x/2021001/article/00014-eng.htm

Craig, E. (2016). The Inhospitable Court. The University of Toronto Law Journal, 66(2), 197-243. https://www-jstor-org.ezproxy.viu.ca/stable/24855529?pq-origsite=summon&seq=37#metadata_info_tab_contents

The Daily — Gender-based violence and unwanted sexual behaviour in Canada, 2018: Initial findings from the Survey of Safety in Public and Private Spaces. (2019, December 5). Statistics Canada. https://www150.statcan.gc.ca/n1/daily-quotidien/191205/dq191205b-eng.htm

Fine, S. (2016, September 9). The Robin Camp transcript: ‘ … keep your knees together’ and other key passages. The Globe and Mail. https://www.theglobeandmail.com/news/national/the-robin-camp-transcript-keep-your-knees-together-and-other-keypassages/article31807105/?login=true

Johnson, H. (2012). Limits of a Criminal Justice Response: Trends in Police and Court Processing of Sexual Assault. In Sexual Assault in Canada: Law, legal pratice and women’s activism. University of Ottawa Press. https://books.openedition.org/uop/592?lang=en

Kassam, A. (2017, October 27). Canada judge says sexual assault victim may have been ‘flattered’ by the incident. The Guardian. https://www.theguardian.com/world/2017/oct/27/canada-judge-says-sexual-assault-victim-may-have-been-flattered-by-the-incident

McNabb, D., & Barker, D. (2021). Ignoring Implementation: Defects in Canada’s “Rape Shield” Policy Cycle. Canadian Journal of Law and Society, 36(1), 23-46. https://www.cambridge.org/core/services/aop-cambridge-core/content/view/4DB0DB4773D725561C082A2EDB9C8B5D/S0829320120000356a.pdf/ignoring-implementation-defects-in-canadas-rape-shield-policy-cycle.pdf

O’Neal, E. (2017, December 18). “Victim is Not Credible”: The Influence of Rape Culture on Police Perceptions of Sexual Assault Complainants. Justice Quarterly, 36(1), 127-160. https://www-tandfonline-com.ezproxy.viu.ca/doi/full/10.1080/07418825.2017.1406977

Pădureanu, M. (2018, December). The History of Rape – A Dark History. ANUARUL INSTITUTULUI DE CERCETĂRI SOCIO-UMANE, 82-91. https://doaj.org/article/eaee1c0a5e7f4769b6d14e65746e2c7d

Page, A. (2007, July 03). Behind the Blue Line: Investigating Police Officers’ Attitudes Toward Rape. Journal of Police and Criminal Psychology, 22, 22-32. https://link-springer-com.ezproxy.viu.ca/article/10.1007/s11896-007-9002-7

Perreault, S. (2015, November 23). Criminal victimization in Canada, 2014. Canadian Centre for Justice Statistics. https://www150.statcan.gc.ca/n1/en/pub/85-002-x/2015001/article/14241-eng.pdf?st=zUeJHyPO

Ryan, K. (2011). The Relationship between Rape Myths and Sexual Scripts: The Social Construction of Rape. Sex Roles, 65(11), 774-782. https://doi.org/10.1007/s11199-011-0033-2

Sheehy, E. (2012). Sexual Assault in Canada. University of Ottawa Press. https://muse-jhu-edu.ezproxy.viu.ca/pub/192/monograph/chapter/726209

Somerville, M., & Gall, G. (2012, February 6). Sexual Assault. The Canadian Encyclopedia. https://www.thecanadianencyclopedia.ca/en/article/sexual-assault

Sullivan, L. (2009). The SAGE Glossary of the Social and Behavioral Sciences (1st ed.). SAGE Publications, Inc. https://www.perlego.com/book/1004364/the-sage-glossary-of-the-social-and-behavioral-sciences-pdf?utm_source=google&utm_medium=cpc&campaignid=17821265003&adgroupid=139762662152&gclid=Cj0KCQiAm5ycBhCXARIsAPldzoVueOgJ-EwPQNnNAmqvvT2pMoAlZGjTE5Kg_xBc1GT1q1Hik2

Whisnant, R. (2021). Feminist Perspectives on Rape. The Stanford Encyclopedia of Philosophy. https://plato.stanford.edu/archives/fall2021/entries/feminism-rape/