--Sexual assault victims and the law
Reuel S. Amdur
The presentation by professor Rachel Chagnon March 10 was unavailable live, but the topic is important. A paper by Ms Chagnon covering the subject matter is the basis for this column. The title of the SGM talk was “Criminal Law and Victims of Sexual Aggression: Is Justice Possible by Law?” Her journal article, “Women and Justice in Canada: What Justice?” appeared in Nouveaux Cahiers du socialisme in 2016. The following presents her position, with additional material related to rape cases.
The picture of the situation of women in the law is not static. There have been important changes over the years, but the challenge of high legal costs and sexism remain. It was back to as recently as 1965 that women were seen by the law as little more than children. They were believed to be unreliable witnesses. Spousal rape was not seen as criminal till 1984.
Exploding legal costs have been a serious impediment to all but the wealthy. Legal Aid is available in only limited circumstances, and not for victims of violence. Their status in court is that of witnesses, “without access to representation and given little time by an overworked Crown. They appear in court often poorly prepared and experience painful revictimization. These negative experiences are exacerbated by the many stereotypes thrown at them in the judicial process.”
She painted a picture of the female victim of sexual violence. Was she asking for it? Remember Judge Robin Camp asking a woman why she didn’t keep her knees together. As an example of progress in the law, we note that he lost his post. Chagnon described the ideal victim in the courtroom. She is a woman who was sober at the time. “She should have hollered a clear and intelligible ‘no’ several times. She should be highly articulate and come from a ‘respectable’ social background, not too dark-skinned, and she should have just one man in her life.”
We were, as noted, not able to hear her remarks, but there are some facts about rape that are known and that she may well have addressed. Victimization surveys have reported that only as few as 10% of rapes are reported to police. This reluctance to pursue their perpetrator is due to several factors—shame, false guilt, fear of the painful judicial process, and in some cases fear that family and friends may side with the rapist and shun her.
In many cases, police do not refer to the Crown, doubting the reality of lack of consent. Then the Crown may decide not to proceed because of uncertainty that they have a winnable case. In court, victims are subject to grueling cross-examination, which may feel as painful as the rape itself. However, there have been changes in the rates of referral to trial as a result of pressure from women’s advocacy groups and agencies.
While there has been undeniable progress for women, roadblocks remain. She notes the persistence of stereotypes. She says that further progress is dependent on continued erosion of stereotypes in the minds of the Crown, lawyers, police, and judges. It is expected that the increasing number of women in the field of justice at all levels will help. As well, Bill C-5 in the House will require all newly appointed judges to “participate in continuing education in sexual assault law and social context,” according to the Department of Justice website.
