Sexual Assault Law Research Articles

Individual Rights and the Negotiation of Governmental Power

In the past 20 years, Canada has seen an increasing tendency to use the criminal law as a means of enforcing norms of safe sex and disclosure among the HIV-positive population – particularly the law of sexual assault. Although the structure of individual rights that underlies the law of sexual assault is conceptually distinct from norms produced through governmental power, this article shows that it is often difficult to draw clear distinctions between the two. An analysis that focuses strictly on individual rights is unsatisfactory because it fails to account for the social nature of our expectations of responsibility and trust. At the same time, when the individual right derives its content by absorbing a norm produced through governmental power, it fails to provide a principled discourse for future decision – making.

The Language of Evidence in Rape Trials

Sexual assault laws have been amended on several occasions to make the criminal justice system more sensitive to the tribulations of the prosecutrix. However, the manner in which these reforms are implemented in the courtroom and the kind of language that is used by the advocates and judges are instrumental in achieving its objective. In this paper, the reforms mandating in camera trials for rape cases, and excluding past sexual history from evidence have been examined. It is argued that the language used inside the courtroom may serve to defeat the purpose of these reform measures. This argument is based in the premise that language is not merely a means of putting forth evidence in a case, but it in fact transforms the nature of evidence itself, thus influencing the outcome of the case.

Sexual assault in Canada: law, legal practice, and women's activism

Sexual Assault in Canada is the first English-language book in almost two decades to assess the state of sexual assault law and legal practice in Canada. Gathering together feminist scholars, lawyers, activists and policy-makers, it presents a picture of the difficult issues that Canadian women face when reporting and prosecuting sexual violence. The volume addresses many themes including the systematic undermining of women who have been sexually assaulted, the experiences of marginalized women, and the role of women’s activism. It explores sexual assault in various contexts, including professional sports, the doctor–patient relationship, and residential schools. And it highlights the influence of certain players in the reporting and litigation of sexual violence, including health care providers, social workers, police, lawyers and judges. Sexual Assault in Canada provides both a multi-faceted assessment of the progress of feminist reforms to Canadian sexual assault law and practice, and articulates a myriad of new ideas, proposed changes to law, and inspired activist strategies.

SEX, LIES, AND HIV: MABIOR AND THE CONCEPT OF SEXUAL FRAUD

This article argues that the Court missed an opportunity to reconsider the test for sexual fraud it had laid out in its 1998 decision in R v Cuerrier, a test that since its inception has proven difficult to apply. It argues that the standard in Mabior is unlikely to provide people living with HIV and other sexually transmitted infections the certainty lacking under Cuerrier and that the judgment fails to advance the development of the concept of consent in the law of sexual assault.

A Selected History of Sexual Assault Legislation in Canada, 1892-1983

Professor Constance Backhouse compiles selected statutes to summarize the development of sexual assault law over the past century. She notes that changes to the language, definitions and punishments surrounding rape/sexual assault over the past century reflect changes in attitudes toward women, women's rights, and patriarchal values. The evolution of sexual assault offenses shows a shift in emphasis from the sexual nature of the crime to the violence of sexual assault, and different formulations of how consent factors into sexual crimes.

A Situational Approach to Incapacity and Mental Disability in Sexual Assault Law

Prosecutions for sexual assault most often focus on whether the Crown has proven that the complainant did not consent to the sexual activity in issue, based on her subjective state of mind at the time of the offence. However, Canadian criminal law also provides that no consent is obtained where the complainant is incapable of consenting. In cases where the complainant has a mental disability affecting cognition or decisionmaking, prosecutors in Canada have been reluctant to argue that the complainant was incapable of consenting. In this article, the authors agree that claims of incapacity should be used sparingly, but contend that the doctrine of incapacity may be applicable and useful in some cases where the accused has exploited the complainant’s disability. They argue that capacity to consent to sexual activity should be defined situationally, rather than as an all-or-nothing measure. Since consent is given to a specific person in a specific circumstance, incapacity should be also assessed by reference to the particular context of the case. This approach to incapacity has been adopted in English and American cases, which provide examples of how it might be applied and understood in Canada. A situational definition of incapacity offers some legal recognition of the particular challenges faced by women with mental disabilities with respect to sexual abuse, without disqualifying them from any lawful sexual activity in other contexts.

Sexual History Evidence in Cases of Sexual Assault: A Critical Re-evaluation

Modern legal regimes have narrowed the scope of the sexual history evidence that is admissible for purposes of proving or refuting claims of consent in cases of sexual assault. Yet, under most modern regimes, similar-sexual-history evidence is still admissible. The article critically analyses the epistemic foundations of these regimes by laying down two arguments. The main argument is that, in the vast majority of cases, similar sexual history is simply irrelevant to questions of consent. First, a simple statistical analysis demonstrates that, in the class of complainants on sexual assault, similar-sexual-history evidence is not indicative of consent. Bayesian insights are then introduced in order to reinforce the analysis and refine it by identifying one narrow exception. Next, it is demonstrated that, in light of the proposed analysis, current evidential regimes can only make sense under some highly controversial normative or factual assumptions. The secondary argument contends that some of the modern evidential regimes reflect the idea that claims of power inequalities between men and women should be at the heart of sexual assault law, rather than claims of consent or lack of it.

Sexual Consent as Voluntary Agreement: Tales of “Seduction” or Questions of Law?

This article proposes a rigorous method to map the law on to the facts in the legal analysis of sexual consent using a series of mandatory questions of law designed to eliminate the legal errors often made by decision makers who routinely rely on personal beliefs about and attitudes toward “normal sexual behavior” in screening and deciding cases. In Canada, sexual consent is affirmative consent, the communication by words or conduct of “voluntary agreement” to a specific sexual activity, with a specific person. As in many jurisdictions, however, the sexual assault laws are often not enforced. Reporting is lowest and non-enforcement highest in cases involving the most common type of assailants, those who are not strangers but instead persons the complainant knows, often quite well—acquaintances, supervisors or coworkers, and family members. Reliance on popular narratives about “seduction” and “stranger-danger” leads complainants, police, prosecutors, lawyers, and trial judges to truncate legal analysis of the facts and leap to erroneous conclusions about consent. Wrongful convictions and perverse acquittals, questionable plea bargains and ill-considered decisions not to charge, result. This proposal is designed to curtail the impact of prejudgments, assumptions, and biases in legal reasoning about voluntariness and affirmative agreement and to produce decisions that are legally sound, based on the application of the rule of law to the material facts. Law has long had better tools than the age-old and popular tales of “ravishment” and “seduction.” Those tools can and should be used.

Expressed Sexual Assault Legal Context and Victim Culpability Attributions

Legal scholars have argued that laws have an expressive function, specifically that sexual assault laws may convey social-level messages that victims are culpable for crimes against them. In a university sample, we conducted the first experimental test of legal scholars' proposal, hypothesizing that legal messages-specifically their clarity and effectiveness in conveying that sexual assault is a crime-affect victim culpability attributions. Results demonstrated that greater culpability was attributed to a victim of sexual assault within a context expressing unclear and ineffective sexual assault law than within a context clearly and effectively expressing that sexual assault is a crime. We also garnered empirical support for a mediation model, that is, negative affective reactions to a victim statistically accounted for the relationship between expressed legal context and victim culpability attributions. Implications for future psycholegal research and potential legal reforms are discussed.

Sexual Assault Law, Credibility, and “Ideal Victims”: Consent, Resistance, and Victim Blaming

L'archétype de la victime idéale d'une agression sexuelle, qui s'est élargi quelque peu au cours des ans en réaction à une prise de conscience sociale et juridique de la violence faite aux femmes, fonctionne toujours néanmoins pour discréditer le récit que font de nombreuses plaignantes de leurs expériences d'agressions sexuelles. Dans cette mesure, le mythe de la « victime idéale » continue à miner la crédibilité de ces femmes qui sont perçues comme s'écartant trop des notions stéréotypées des victimes « authentiques » et trop aussi des présomptions concernant les réactions prévisibles et « raisonnables » des victimes. Les évaluations de la crédibilité, qui sont absolument cruciales dans les procès pour agressions sexuelles, demeurent profondément imbues des mythes et des stéréotypes touchant les victimes « idéales », « réelles » ou « vraies » d'agressions sexuelles. En dépit des réformes progressistes du droit canadien concernant le consentement en matière d'agressions sexuelles, il n'en demeure pas moins qu'en pratique, le fardeau de la preuve et la crédibilité du consentement demeurent du côté de la victime et jouent souvent de manière préjudiciable et discriminatoire. L'idée subsiste que les « vraies » victimes d'agression sexuelle résistent et cette idée demeure inextricablement liée au mythe que les victimes « idéales » ou « authentiques » peuvent prouver leur statut de victime et établir la crédibilité de leurs accusations de viol en démontrant qu'elles ont résisté à l'agression et que leur résistance a pris une forme socialement attendue, de préférence une défense physique et vigoureuse. Le présent article analyse certains des problèmes clés qui exigeraient une réforme en profondeur du droit en matière d'agression sexuelle, examine la ténacité des images juridiques déformées des victimes « idéales » ou « authentiques » d'agressions sexuelles, la tendance toujours actuelle de blâmer les victimes d'agressions sexuelles et de « faire disparaître » les auteurs du crime ainsi que la persistance d'une sorte d'analphabétisme psychologique en droit au sujet de la nature, les complexités et la gamme des façons par lesquelles les femmes viennent à bout de faire face à la violation et au traumatisme des agressions sexuelles.

The Age of Innocence: A Cautious Defense of Raising the Age of Consent in Canadian Sexual Assault Law

In 2008, Canada raised the age of consent to sexual activity with an adult from 14 years of age to 16. Tis change was motivated, in part, by several high-profile cases of Internet "luring" of younger teenagers. Tis article considers whether raising the age of consent has had any benefits. It begins by discussing the history and development of age of consent laws in Canada. Te justification for a statutory age of consent has shifted from one based on the age at which a girl is deemed to be sexually available to one based on her capacity to give a valid consent to sexual activity. Te article examines the arguments made by groups who opposed raising the age of consent, but finds those arguments unconvincing. It concludes by cautiously supporting a higher age of consent. Te higher age limit captures exploitation of young people that was not subject to criminalization in the past. However, a formal age of consent may also normalize exploitative sexual relationships that contain a significant age disparity, where the younger party is only marginally over the age of consent. It is argued that age should be a factor in determining whether a relationship is exploitative even where both parties are over the age of consent. Te fact that both parties in a relationship are over the formal age of consent should not relieve the courts from the responsibility to consider whether there was coercion or an abuse of power or trust.

Carnal Crimes: Sexual Assault Law in Canada, 1900–1975 (review)

Reviewed by: Carnal Crimes: Sexual Assault Law in Canada, 1900–1975 Carolyn Strange Carnal Crimes: Sexual Assault Law in Canada, 1900–1975. Constance Backhouse. Toronto: Irwin Law, 2008. Pp. 442, $55.00 Backhouse has done it again: produced a major work of legal history written and designed to appeal to a broad audience, from Supreme Court justices to readers simply interested in the Canadian criminal justice system’s prior ways of dealing with sexual assault. How does she do it? Because the book operates at three levels it can be approached effectively as three books. The one most will read comprises nine chapters, which examine in detail individual cases of sexual assault, and an introduction and conclusion that ties them together by highlighting their illustrative significance. Readers with greater interest in the historical and legal context in which Backhouse situates her selected cases will turn to the second, near-book-length resource of the endnotes (thirty-seven densely packed pages). This would have been impossible had a publisher other than the Osgoode Society for Canadian Legal History taken on the project. For anyone wishing to follow the trail to the 1,202 cases she unearthed through her meticulous law report searches and her intensive archival research, Backhouse’s personal website provides a full listing. The result is a benchmark resource for further study and analysis, produced by an extraordinarily generous scholar. Carnal Crimes begins where Petticoats and Prejudice (1991) left off, and it follows Backhouse’s well-established method of approaching larger themes in law through individual cases. In her earlier work she exposed the ways in which nineteenth-century criminal law failed to deliver justice to women exposed to sexual violence. This new work extends that argument, but the framing is different, since the book covers the period of 1900 until 1975 – the year when Canadian criminal law first responded to feminist concerns over sexist laws in an era [End Page 753] when efforts to reorient the criminal justice system toward victims’ experiences were gathering momentum. Her nine cases highlight the issues that prompted those reforms, particularly the onerous burden of corroboration imposed on complainants and the intrusive scrutiny into the character and sexual history of women and children who claimed to have been abused. The legacy of seventeenth-century English jurist Matthew Hale’s famous dictum that rape is ‘an accusation easily to be made’ clearly lingered in the minds of the men who dealt with sexual assault cases before the 1970s, and not just defence lawyers zealously defending clients, but also Crown attorneys and police officers whose duty it was to gather evidence and prosecute credible cases. Several of the cases Backhouse presents ended in convictions, but each of those was successfully appealed. Indeed, as she and others in the field have established, the conviction rate for all forms of sexual assault, and rape in particular (which carried a maximum penalty of death until 1954), was substantially lower than rates for comparable indictable offences over the early- to mid-twentieth century. Remarkably little changed over time. But this is a work about people, not numbers and trends, and Backhouse’s storytelling skill is the key to her crossover appeal. General readers and students of history and gender studies will be led effectively through law’s complex operations with the aid of compelling and frequently harrowing accounts of violence and coercion. Although Backhouse recounts the scenarios that led to complaints of sexual assault by synthesizing and quoting from depositions, trial transcripts, and expert testimony, she keeps her spotlight on the law and the legal personalities involved in each case. Law here is not an abstract force or a set of principles applied to unique fact situations; rather, Backhouse’s criminal justice system is run by men operating on an uneven playing field that made victories for victims a rarity and failed utterly to protect women and children. Each of the cases Backhouse selects vividly supports her argument, and one can hear her accusatory voice in the testimony of Mary Burton in 1907. This complainant, a working-class woman from the wrong side of town, responded to a battering cross-examination into her unsavoury reputation with remarkable spirit and...

Risk, propriety, and sexual assault

- Legal theorists often conceive of the law as a closed system of reasoning, and as the central mechanism through which the uses of power are conferred and circumscribed. However, social theory challenges this conception of law by telling us that a great deal of power is non-juridical in nature, operating through discursive practices that define and normalize conduct. This raises doubts as to whether juridical power can be used to achieve social transformation. Risk theory uncovers discursive practices that operate as non-juridical sites of power, by showing how risk analyses normalize contingent values through the use of value-neutral terms of statistical probabilities. For example, feminist criminologists, drawing on risk theory, have shown us how risk discourses can be used to reinforce traditional norms of femininity, particularly by responsibilizing women for minimizing the risk of sexual assault. Using an example from the Canadian law of sexual assault, this paper considers whether the law inevitably reproduces the very discourses of femininity that many law reformers are trying to disrupt, or whether it might act as a site wherein these discourses may be challenged.

Carnal Crimes: Sexual Assault in Canada, 1900–1975Constance Backhouse(Toronto: Irwin Law, 2008)

Sexual assault law is a challenging topic to teach. Sexist and other discriminatory doctrines have pervaded its history in the courts and in legal education, and it is a crime that is overwhelmingly perpetrated by men against women and children.When I discuss sexual assault cases in my criminal law class each year, I start by noting the sheer prevalence of the crime. Unlike some other topics considered in the course, there will be students in the class with personal experience of this crime, which we know is both prevalent and under-reported. In this connection, the fact that Constance Backhouse opens Carnal Crimes: Sexual Assault Law in Canada, 1900–1975 by stating that ‘‘[s]exual assault has been astonishingly widespread throughout Canadian history’’ is important. Fortunately for students and teachers alike, the topic is treated inCarnal Crimes with the depth of research, theoretical grounding, and vivid writing style that we have come to expect from Constance Backhouse, a pioneer and influential scholar of feminist legal history. She offers us a riveting and effective way to

Rape as genocide: some questions arising

One of the most significant developments in the jurisprudence of modern international criminal law is the determination of the International Criminal Tribunal for Rwanda (ICTR), in the Akayesu case...

Manifestations of Enduring During Interviews With Sexual Assault Victims

The retelling of a sexual assault, whether during sexual assault care or law enforcement interviews, or in the process of seeking social support, is an emotionally stressful event, yet there is little research describing the psychological experiences of retelling. In a study of barriers to sexual assault care, 43 survivors recounted 76 assault events during individual interviews. Although assaults occurred from 1 to 15 years prior to the interview, participants demonstrated emotional upset. Using the praxis theory of suffering as a scaffold, the author describes manifestations of enduring and emotional suffering. The separation of enduring from emotional suffering indicates potential usefulness of the praxis theory of suffering in the provision of post-sexual assault care.

Handbook of forensic psychology: resource for mental health and legal professionals

Part I: Basic Issues. M.G. Brogdon, Sr., J.H. Adams, and R. Bahri, Psychology and the Law. W.T. O'Donohue, K. Beitz, and E.R. Levensky, An Introduction to Psychology for Attorneys. M. Lavin, Ethical Issues in Forensic Psychology. J.E. Hecker and R.J. Scoular, Forensic Report Writing. Part II: Assessment. L. Eccleston and T. Ward, Assessment of Dangerousness and Criminal Responsibility. R.J. Dempster, Issues in the Assessment, Communication, and Management of Risk for Violence. K. Strosahl, Forensic and Ethical Issues in the Assessment and Treatment of the Suicidal Patient. R. Roesch, J. Viljoen, and I. Hui, Assessing Intent and Criminal Responsibility. J. Skeem, S.L. Golding, and P. Emke-Francis, Assessing Adjudicative Competency: Using Legal and Empirical Principles to Inform Practice. C. Yury, R.A. Gentry, H. LeRoux, J.A. Buchanan, and J.E. Fisher, Assessing Mental Competency in the Elderly. A.R. Bradley, Child Custody Evaluations. M. Fanetti and R. Boles, Forensic Interviewing and Assessment Issues with Children. A. McLearen, C.A. Pietz, and R.L. Denney, Evaluation of Psychological Damages. K. Ferguson, Detecting Malingering in Forensic Neuropsychological Evaluations in Litigants with Mild Traumatic Brain Injury. E.V. Gifford, B.S. Kohlenberg, M.M. Piasecki, and E.J. Webber, The Forensic Assessment of Substance Abuse. K. Treadwell and E. Foa, Assessment of Post-Traumatic Stress Disorder. Part III: Mental Disorders and Forensic Psychology. S.G. Little, A. Akin-Little, and U.H. Mocniak, Conduct Disorders and Impulse Control in Children. E.M. Cale and S.O. Lilienfeld, What Every Forensic Psychologist Should Know About Psychopathic Personality. T.P. Sbraga, Sexual Deviance and Forensic Psychology: A Primer. S.J. Hucker, Disorders of Impulse Control. W.L. Williams, P.M. Ghezzi, and E. Burkeholder, Developmental Disabilities and Mental Retardation. Part IV: Special Topics. S. Ghetti, J.M. Schaaf, J. Qin, and G.S. Goodman, Issues in Eyewitness Testimony. A.C. Tsai, S. Morsbach, and E.F. Loftus, In Search of Recovered Memories. E. Martin, A Daubert Testing of Hypnotically Refreshed Testimony in the Criminal Courts. E.M. Oksol and W.T. O'Donohue, A Critical Analysis of the Polygraph. M. Frank and P. Ekman, Nonverbal Detection of Deception in Forensic Contexts. C. Avina, A. Bowers, and W.T. O'Donohue, Forensic Issues in Sexual Harassment. S.T. Azar and N. Olson, Legal Issues in Child Abuse and Neglect. E.R. Levensky and A.E. Fruzzetti, Partner Violence: Assessment, Prediction, and Intervention. D. Henderson, D. Varble, and J. Buchanan, Elder Abuse: Guidelines for Treatment. B.R. Johnson, Involuntary Commitment. D. Davis and W.C. Follette, Jurors Can Be Selected: Noninformation, Misinformation and Their Strategic Uses for Jury Selection. M. Mahaffey, Issues of Ethnicity in Forensic Psychology: A Model for Hispanics in the United States. K.A. Brunswig and R. Parham, Psychology in a Secure Setting. R. Otto, Evaluation of Youth in the Juvenile Justice System. D. Davis and W.T. O'Donohue, The Road to Perdition: Extreme Influence Tactics in the Interrogation Room. D. Davis and E.F. Loftus, What's Good for the Goose Cooks the Gander: Inconsistencies Between the Law and Psychology of Voluntary Intoxication and Sexual Assault.

The Impact of Complainant Sexual History Evidence on Jurors' Decisions: Considerations From a Psychological Perspective.

Although Canada's sexual assault laws have undergone considerable modification and revision since the late 1970s and early 1980s, it has only been within the past decade that a “rape shield” protection has applied to the complainant's prior sexual conduct with the defendant. Although the admission of evidence concerning the complainant's prior sexual conduct with the defendant now receives legislative protection, it can still, under some circumstances, be admitted at trial. Specifically, if the trial judge determines that the evidence pertaining to the complainant's prior sexual conduct with the defendant is of significant probative value to a fact at issue (other than the complainant's consent or credibility) and that this value is not outweighed by any potential prejudicial effects, it may be admitted at trial. Drawing on psychological research investigating the role played by complainant/defendant relational history in people's evaluations of sexual assault, the current article critically examines the potential impact that this evidence may have on jurors' decisions in sexual assault trials. This review suggests that significant dangers are associated with its introduction at trial and also includes a discussion of the legal implications of these research findings.

The Ideal Victim, the Hysterical Complainant, and the Disclosure of Confidential Records: The Implications of the Charter for Sexual Assault Law

The Ideal Victim, the Hysterical Complainant, and the Disclosure of Confidential Records: The Implications of the Charter for Sexual Assault Law

Peer Education

A peer education program emphasizing male responsibility in decreasing sexual assault led to a decrease in rape tolerant attitudes among high school students immediately following a 45-minute presentation. Trained high school students presented information on sexual assault risk reduction, rape culture, sexual assault law, how to help a friend who has been assaulted, and male responsibility in preventing sexual assault. Whereas the scores of female students showed less acceptance of rape myths and victim-blaming attitudes than males at both pretest and posttest, the attitudes of male students showed more improvement following the presentation than those of the females.