CANADIAN SEXUAL ASSAULT LAW: NEOLIBERALISM AND THE
EROSION OF FEMINIST-INPIRED LAW REFORMS
Lise Gotell
In April 2009, Prime Minister Stephen Harper warned the President of Afghanistan that
critical Allied support for the mission could diminish if the Afghan government did not
change a law that would ‘make it legal for men to rape their wives’ (Vancouver Sun, 4
April 2009). Drawing upon and restating the now familiar gendered rationalization of the
‘War Against Terror,’ the assumed sexual autonomy of Canadian women is posed as an
important symbol of Western democracy and progress. Obscured beneath this brief flurry
of political and media attention to rape (in Afghanistan) is, ironically, the very
disappearance of sexual violence as a critical and systemic problem affecting Canadian
women. Over the past decade, sexual violence has been increasingly depoliticized and
erased from political agendas.
In this chapter, I analyze Canadian sexual assault law, focusing most closely on the
feminist-inspired changes to the Criminal Code enacted in 1992 that moved Canada in
the direction of an affirmative consent standard. While significant in enshrining
protections for complainants and in clarifying the law of consent, these revised provisions
have been inconsistently interpreted. Despite doctrinal developments supporting sexual
autonomy and positive consent, there is also a dramatic gap between the thrust of
Canadian law and a reality characterized by continued high prevalence rates, low police
reporting rates and high attrition rates. Analyzing the implications of Canadian sexual
assault law against the backdrop of neoliberalism, I demonstrate how the embrace of an
affirmative model of consent consolidates the individualizing frame of criminal law and
produces normative sexual subjects who actively manage the risk of sexual assault. In
this process, new forms of victim blaming are created and some categories of women are
excluded from the protections of law. Tying the impact and fate of 1990s reforms to the
elaboration of neoliberal governance, I conclude with an analysis of key features of the
current political context that mitigate against the emergence of new reform initiatives.
HISTORICAL AND POLITICAL CONTEXT OF FEMINIST-INSPIRED
SEXUAL ASSAULT LAW REFORMS
As in many other countries, Canadian second wave feminist activists succeeded in
‘breaking the silence’ around sexualized violence and, for a brief period, inserted sexual
assault onto the political agenda as a pervasive social problem requiring government
intervention. As part of a broader agenda that saw the establishment of independent
women-controlled rape crisis centres, protests (such as Take Back the Night marches)
and consciousness-raising activities, feminists pushed for legal reforms in order to
constrain the influence of rape myths on the practice of law. Activists hoped that the
elimination of sexist bias in law would deter rape by reducing men’s expectation of
immunity and women’s expectations of unjust treatment by the criminal justice system.
In the 1980s, feminists campaigned for a new gender-neutral offense of sexual assault
that would shift the way in which the Criminal Code conceptualized sexual violence – as
a crime of violence, rather than as a crime of sex. Underlying this campaign was the
belief that desexualizing rape would diminish opportunities for victim-blaming. By
redefining rape as violence, Canadian feminists hoped to convey the seriousness of this
crime and to emphasize the similarity between sexual assault and the criminal assaults
that men typically experience (McIntyre 2000; Los 1994). But as critics argued even
then, while drawing attention to the harms of sexual violence, this strategy misrepresents
the problem of rape by removing it from its deeply gendered context and obscuring the
relationship between male power, violence and sex (Los 1994: 34; McIntyre 2000).
The Canadian federal government’s interest in rape law reform in the early 1980s was
tied to concerns that gender-specific sexual offences could offend the equality rights
guarantee of the newly entrenched Charter of Rights (Los 1994: 27). In 1983, and in
response to a vocal feminist lobby led by the National Association of Women and the
Law, Parliament replaced the rape provision with the current three-tier structure of sexual
assault offences (distinguished by degrees of violence), criminalizing all forms of nonconsensual sexual touching (Los 1994). This redefinition expanded the narrow view of
sexual aggression denoted by rape, making criminally punishable sexual acts that do not
involve penetration and, for the first time, explicitly criminalizing sexual assault within
marriage. The amendments also addressed the unique evidentiary rules that had
characterized the prosecution of rape, abolishing the corroboration requirement and the
doctrine of recent complaint. Finally, in an effort to reduce the humiliation experienced
by complainants and the sway of rape myths in trials, new provisions restricting crossexamination on sexual history and banning the publication of victims’ names were
included in the Criminal Code.
In the early 1990s, sexual violence reemerged on the political agenda as the federal
government responded to the Montreal Massacre. In 1989, fourteen young women
engineering students were shot at the École Polytechnique, precipitating attention to the
problem of violence against women. This deliberate act of gendered terror brought into
stark relief feminist claims about the extreme consequences of violence against women,
provoking a national debate about male violence. While the Massacre produced a new
and often highly symbolic political emphasis on gendered violence, the specific and
almost exclusive framing of the problem as a criminal justice matter must be understood
in relation to the rise of neoliberal governance (Gotell 2007). By the early 1990s, the
erosion of post-war notions of social citizenship had diminished political spaces for
feminists and other social justice movements. Social and political problems were being
redefined as individual problems, best managed through responsibility and selfregulation. During this period, governmental actors began to mount a steady attack on the
Canadian women’s movement, delegitimizing feminist voices and dismantling programs
designed to enhance women’s equality (Brodie 2007; Gotell 2007). As I have argued
elsewhere, during this period, gendered ‘victimization’ became one of the last few
gender-specific bases for claims to social entitlement, tied intimately to an enhancement
of the state’s coercive powers (Gotell 1997: 67). Governmental attention to sexual
violence, defined primarily as an object of criminal law, is related to the development of
the leaner, meaner neo-liberal state.
If shifting rationalities of governance and the fallout from the Montreal Massacre
provided the broad context for attention to sexual violence as a criminal justice issue, the
Supreme Court of Canada’s (SCC) decision in R v. Seaboyer ([1991] 2 S.C.R. 577)
placed sexual assault law reform squarely on the political agenda. In a stunning legal
defeat and the first SCC Charter decision dealing with sexual assault, sexual history
evidence restrictions enacted in 1983 were struck down as a violation of defendants’ fair
trial rights. The majority ruled that because the restrictions failed to provide scope for
judicial discretion, they potentially excluded relevant evidence. What the majority
ignored, however, was how sexual history evidence relies upon and reinstalls rape myths,
discrediting claimants by sexualizing them and undermining the fairness of the trial
process through introducing discriminatory myths.
The broad-based sexual assault law reform enacted in 1992 was a direct response to the
Seaboyer decision. Bill C-49 was drafted after an unprecedented series of consultations
with national feminist organizations and resulted in a set of fundamental changes to the
definition and criminal regulation of sexual assault (McIntyre 2000). This legislation
reenacted restrictions on sexual history evidence, but in a weakened form that complied
with the Supreme Court’s insistence on scope for judicial discretion (Criminal Code, s.
276). At the same time, the amendments went far beyond the re-codification of guidelines
for sexual history evidence. Sheila McIntyre, a participant in the reform process, explains
that the feminist strategy was ‘to amend the substantive law of sexual assault to define
consent and non-consent so as to narrow the range of ‘evidence’ capable of being
relevant to the determination of guilt or innocence’ (McIntyre 2000: 76). For the first
time, and as a result of feminist pressures, a statutory definition of consent as ‘the
voluntary agreement to engage in the sexual activity in question’ (s. 273(1)2) was
embedded in the Criminal Code, transforming consent into ‘something that a woman
does and freely chooses to do, not something that men fanaticize or choose for her’
(McIntyre 2000: 76). The revised Code also enumerated a non-exhaustive set of
situations where no consent is presumed to exist (including when agreement is expressed
by another person, when the complainant is ‘incapable of consenting,’ when the accused
abuses a position of power, trust, or authority, and when the complainant expresses a lack
of agreement to engage or continue to engage in the sexual activity) (s. 273(1)3).
According to McIntyre, this provision was intended to ‘convert self-serving rape-myths
and rationalizations proffered as honest, but mistaken beliefs in a woman’s consent, into
errors of law’ (2000: 76).
Finally, the defence of mistaken belief was specifically limited by a new requirement
that the accused must have taken ‘reasonable steps’ to ensure consent and by explicitly
specifying that there can be no such defence when this belief arises through
‘recklessness’ or ‘willful blindness’ (s.273(2)b). The ‘reasonable steps’ provision was a
Canadian innovation; it modified what had been a purely subjective mens rea standard by
introducing a quasi-objective fault element, such that the belief in consent need not be
reasonable, but the accused must have taken reasonable steps in the circumstances to
ascertain consent. Popularly referred to as the ‘no means no’ amendments, the positive
definition of consent as a voluntary agreement, as well as limitations on the defence of
mistaken belief, had the effect of distinguishing consent from submission, challenging a
version of normative heterosexuality founded on feminine acquiescence (Gotell 2008).
Subsequent rounds of sexual assault law reform in the 1990s, though more limited in
scope, shared similarities with Bill C-49. Shaped by consultations with women’s
organizations, amendments were explicitly framed as measures to address the
pervasiveness of sexual violence in women’s lives and to improve the treatment of
complainants and low rates of police reporting. And like Bill C-49, subsequent reforms
were provoked by judicial decisions that privileged defendants’ legal rights. In 1995, the
common law bar on the defence of intoxication was found to violate the defendant’s legal
rights in R. v. Daviault ([1994] 3 S.C.R. 63), a SCC case involving the sexual assault of
an unconscious, disabled woman. This ruling prompted a national outcry and caused
Parliament to enact a legislative ban on the intoxication defence (Criminal Code, s.
33(1)). In 1997, the government created a legislative regime strengthening the weak
common law test for disclosure of third party records that had been established by the
SCC in R. v. O’Connor (1995 [1995] 4. S.C.R. 411) (s. 278), thereby responding to
longstanding feminist concerns about the widespread defence tactic of discrediting
complainants’ through the contents of their therapy, medical and other confidential
records (Gotell 2002).
By the end of the decade, the Criminal Code contained strong provisions recognizing
sexual autonomy, placing an onus on defendants asserting mistake of fact defences to
have taken steps to secure agreement and restricting the opportunities for discrediting
complainants based upon their sexual history and the contents of their private records. In
fact, Canadian legislation is widely viewed as expressing a communicative model of
consent (Pineau 1996: 92-93) and our Criminal Code provisions have influenced law
reform in other jurisdictions (see, for example, Criminal Justice Sexual Offences
Taskforce 2006).
Yet these feminist-inspired sexual assault law reforms unfold in a context distinct from
that of the early 1990s, where the recognition of sexual violence as a social problem
requiring governmental intervention has all but disappeared. By the end of the 1990s,
feminist anti-violence activists were recast as ‘special interest groups’ and excluded from
policy networks (Gotell 2007; McIntyre 2000). The policy field signified by ‘violence
against women’ was evacuated and replaced with degendered and individualized policy
frameworks. One crucial institutional mechanism by which this has occurred is the
elaboration of victims’ services bureaucracies. Now preoccupied with the rights of
individualized ‘victims’, new policy discourses avoid systemic constructions linking
‘crime’ to context, signaling the disappearance of gendered policy discourses of sexual
violence. The withdrawal of funding from feminist front-line and activist work is a
crucial aspect of this reconfigured context. With the decline of federal support for
Canadian women’s organizations, funding for anti-rape activism and front-line work has
been decentralized to the provinces. Because new funding arrangements are increasingly
contingent on the provision of services to generic victims of crime, feminist front-line
organizations have had to redefine themselves as social service delivery agencies,
affecting their capacity to intervene in national debate and to combat the pervasive reprivatization and individualization of sexualized violence (Beres, Crow & Gotell 2009).
The clever disappearing act embedded within these interrelated moves does not signal a
victory over sexual violence, merely its disappearance as an object of policy and public
discourse.
In stark contrast to the post-feminist tenor of current political discourse, sexual violence
persists as a deeply gendered social problem. Only 3 per cent of persons charged with
sexual assault in 2007 were women, while 87 per cent of those assaulted were women
and girls (Johnson 2009: 2). The Canadian Violence Against Women Survey, conducted
by Statistics Canada in 1993, found that 39 per cent of Canadian women had experienced
sexual assault since the age of 16 (Johnson and Sacco 1995). Approximately 460,000 (3
per cent) of Canadian women were sexually assaulted in 2004, though just eight per cent
reported to the police (Johnson 2009: 13). Holly Johnson, the leading Canadian empirical
researcher on violence against women and principal investigator on the Violence Against
Women Survey, has recently reviewed the statistical evidence on criminal justice
responses to sexual assault. As she documents, even though police-reported sexual
assaults have declined since 1993, the estimated incidence of sexual assault has remained
relatively constant (3). The rate at which sexual assaults are reported to police has also
remained consistently low, never rising above 10 per cent, suggesting that confidence in
the criminal justice system affects women’s willingness to make police complaints (4).
Given the extremely high attrition rate for sexual assault, this caution seems warranted.
Because of low reporting rates, high rates of police ‘unfounding’ or ‘no-criming’ and low
charging and conviction rates, attrition rates based upon estimated incidence are
astronomically high, with an overall conviction rate of 0.3 per cent, rising slightly to 1.6
per cent for sexual attacks accompanied by threats or physical attack (13). This evidence
leads Johnson to conclude that ‘rape law reform and the efforts of grassroots feminist
organizations to raise awareness and challenge widespread discriminatory stereotypes
have not resulted in improvements in women’s willingness to come forward, or in the
response of the criminal justice system to those who come forward’ (17).
Other feminist critics have also expressed scepticism about the utility of sexual assault
law reform as strategy, emphasizing that feminists do not determine the mobilization or
enforcement of the law (Snider: 161). Because law is a disunified and contradictory field,
we cannot expect law reforms to produce uniform, predictable effects (Smart 1995: 144,
212). What Canadian feminists achieved in rewriting sexual assault legislation was
complex, inserting recognition of sexual autonomy and gender equality into a criminal
legal framework defined by individual responsibility and punishment. Though revised
Criminal Code provisions provide the architecture of an affirmative consent standard,
their interpretation by a wide variety of actors in the criminal justice system occurs in the
context of an official silence. Without external political discourses recognizing sexual
assault as a systemic problem, the tendency of criminal law toward decontextualization
and individualization holds sway.
CONSENT IN CANADIAN LAW: INDIVIDUALIZATION,
DECONTEXTUALIZATION AND THE UNEVEN DEVELOPMENT OF LAW
As Smart has insisted, law develops unevenly, operating simultaneously as a site of, and
an obstacle to, change (1995: 154-56). Canadian sexual assault law reforms have had
complex effects, demonstrating the uneven development of law and the gap between
what Smart refers to as ‘law as legislation’ and ‘law as practice.’ Studies analyzing the
effectiveness of evidentiary provisions governing sexual history and access to
complainants’ records reveal the permeability of statutory restrictions (Gotell 2002,
2007). Decisions have weakened and narrowed the tests introduced by legislation,
downplaying the need to undertake a full analysis of the implications of sexual history
evidence and personal records disclosure for complainant rights and very often
privileging defendants’ rights. Despite protections embedded in the Criminal Code,
complainants have remained vulnerable to being cross-examined on their sexual histories
and to having a wide array of their personal records disclosed at trial. Some categories of
complainants, including those who allege historical assaults, those who have histories of
mental illness, those who have made previous complaints of sexual assault and/or those
whose lives have been extensively documented under conditions of multiple inequalities
and institutionalization (for example, Aboriginal women, women with disabilities or
women who have been imprisoned or involved with child welfare authorities), are
especially vulnerable to these defence tactics (see also Benedet & Grant in this volume).
Unlike the sexual history and records case-law where an erosion of 1990s reforms is
evident, recent decisions have built upon the foundation of affirmative consent laid
through Bill C-49. R. v. Ewanchuk ([1999] 1 S.C.R. 330) is the leading authority for trial
and appellate judges as they attempt to apply these revised statutory provisions. In this
important decision, the SCC articulated a standard for sexual consent that approaches
‘only yes means yes’ (Ruparelia 2006). The Court unanimously found that there is no
defence of ‘implied consent’ in Canadian law, defining the actus reus of sexual assault as
non-consensual sexual touching where consent is determined from the subjective position
of the complainant (paras 30-1, 34-5). While insisting that intent is a crucial element of
the crime of sexual assault, the decision emphasized that the defence of mistaken belief
is not available when tainted by recklessness or wilful blindness (paras 42 & 52).
Moreover, gesturing towards the ‘reasonable steps’ requirement, the Court emphasized
that triers of fact must consider whether the accused took active steps to establish consent
(paras 58 & 60). Clear agreement to continue to engage in sexual contact must be
obtained after someone has said no: ‘[t]he accused cannot rely on the mere lapse of time
or the complainant’s silence or equivocal conduct to indicate that . . . consent now exists,
nor can he engage in further sexual touching to “test the waters”’ (para. 52). Finally, the
SCC emphasized that consent must be positive, arguing that ‘the mens rea of sexual
assault is not only satisfied when it is shown that the accused knew that the complainant
was essentially saying “no”, but is also satisfied when it is shown that the accused knew
that the complainant was essentially not saying “yes”’ (para. 45). Silence and ambiguous
conduct thus do not constitute consent. In effect, Ewanchuk shifted the starting point in
Canadian law from the assumption that women exist in a state of consent to a
requirement that there be some positive evidence of agreement (Benedet & Grant 2007:
261; Gotell 2008: 869).
Important appellate level decisions since Ewanchuk have continued to consolidate an
affirmative consent standard by giving teeth to the requirements that consent must be
voluntary and active and by holding that consent-seeking must be comprised of positive
steps to secure agreement. Rulings have emphasized that to be legally valid, consent must
be ‘freely given.’ In R. v. Stender ([2005] 1 S.C.R. 914), the SCC upheld a conviction in
a case where the complainant had participated in sex in order to stop a former boyfriend
from disseminating sexual photos. As Stender affirmed, the presence of pressure and
extortion meant that no consent was given because consent must be voluntary. In a
significant decision clarifying the defence of mistaken belief, the Manitoba Court of
Appeal determined that active steps to secure agreement are required when circumstances
exist that would cause a ‘reasonable man to inquire further’, raising the mens rea standard
close to an objective standard (R. v. Malcolm 2000: para. 21).1 The Court argued that
some circumstances, such as entering a complainant’s bedroom while she was sleeping,
after a night of drinking and knowing that she was married to a close friend, require
conversation and verbal consent, rather than a mere reliance on physical responses.
Even in situations where complainants are intoxicated, drug affected and/or unconscious,
Canadian courts are increasingly convicting (Gotell 2007: 146-147). On the basis of an
extensive review of written decisions involving intoxication, Benedet (2009: 10-19) has
found that judges are now more likely to rule that complainants lacked capacity to
consent, especially when unconscious or asleep when the sexual activity began, or, if not
unconscious, when they have been rendered intoxicated involuntarily. Judges also appear
less willing to apply the claim of mistaken belief when a complainant is intoxicated,
finding that the duty to take reasonable steps is elevated and often determining that
proceeding with sex in such situations constitutes recklessness or wilful blindness (see for
example, R. v. Cornejo (2003), 68 O.R. (3d) (Ont. C.A.); Benedet 2009: 20-25; Gotell
2008: 870). In addition, the Alberta Court of Appeal ruled out the possibility of a
defence of ‘prior consent’ to sexual activity when asleep or unconscious because, as the
majority emphasized, consent must be operative at the time sexual contact takes place (R.
v. Ashlee [2006] A.J, No. 1040 (C.A.); Gotell 2008: 894-897). Clearly, cases involving
intoxication continue to be contentious as complainants are often unable to completely
remember what happened. Yet, in some key decisions, judges have relied on indirect
evidence (for example that the complainant would be unlikely to have had unprotected
intercourse with two men) to find a lack of consent against defendants’ claims to the
contrary (R. v. J.R. (2006) 40 C.R.(6th) 97 (Ont. S.C.J.) at para. 38).
The elaboration of an affirmative consent standard in Canadian law means that it is now
far less likely that acquiescence will be transformed into consent. What Smart has
labelled the ‘pleasurable phallocentric pastime’ of pressing a woman until she submits is
clearly disrupted through emerging legal standards (1989: 45). And yet, reflecting the
way in which the systemic nature of sexual violence has been increasingly erased in a
context of neoliberal governance, Canadian judicial discourses consolidating an
affirmative consent standard reinforce a decontexualized construction of sexual assault.
Emphasis is placed on discrete sexual transactions, consent-seeking actions and the
quality of agreement. And while valuable in focussing attention on the demonstration of
positive consent, sexual violence is atomized; its manifestations and consequences are
never collected, never considered in a context where sexual assault is a mechanism for
sustaining gendered power relations. Recent Canadian decisions recognize sexual
autonomy, but in a form that is consistent with individuated norms of criminal law.
Normative sexual interaction is reconceived as being like an economic transaction and
good sexual citizens are reconfigured to resemble rational economic actors assuming
responsibility for their actions and the risks that they take. Tied to this decontexualized
framing, the production of risk managing subjects who diligently practice sexual
safekeeping becomes privileged as a governmental technique for managing the once
‘social’ problem of sexual violence.
Alongside the shift to an affirmative consent standard in Canadian law, the line between
the ideal victim and the incredible complainant has also shifted (Gotell 2007, 2008).
When standards for consent are raised to ‘only yes means yes’ and when responsibility is
placed on those initiating sex to take active steps to secure agreement, sexual virtue is
eroded as the essential prerequisite of good victimhood. Indeed, this was the conscious
intent of feminist law reformers. Yet, in post-Ewanchuk Canadian sexual assault law, the
idealized (read credible) victim does not simply disappear. Instead, the contours of good
victimhood shift to reflect the privileged logic of risk management. The performance of a
diligent and cautious femininity grants some women access to the protections of law,
while those who fail to follow the rules of sexual safekeeping can be denied protection.
Victim-blaming constructions emerge repeatedly when complainants fail to behave as
responsible risk managers. Even as convictions are entered, complainants are described
as having ‘questionable judgement’, as being ‘careless’ as displaying ‘youthful naiveté’
and are criticized for failing to respond quickly and assertively in the face of sexual
threats (Gotell 2008: 879-880). In a particularly striking recent example of this revised
form of victim–blaming, a trial judge, convicting two men of drugging and sexual
assaulting a young woman who they had met in an internet chatroom, emphasized the
reckless nature of the complainant’s behaviours:
J.M. communicated with a stranger who contacted her out of the blue on the internet. She flirted
with him and foolishly agreed to meet, giving him her name, address and telephone number. She
knew that he had mentioned bringing alcohol and drugs and she did contemplate the possibility of
a sexual encounter with him. When he showed up at the residence with his friend, she voluntarily
got in the car. ….J.M.’s continued attempts to minimize her provocative and foolish behaviour
stemmed from her intense embarrassment that she allowed herself to get into the situation in the
first place (R. v. Sadaatmandi 2008 cited in Benedet 2009: 8).
Here the complainant is constructed as flirting with risk. The normalized risk-avoiding
behaviours of the ideal victim can function as a standard for assessing the credibility of
complainants. In R. v. A.J.S ((2005), 192 Man. R. (2d) 4 (Man. C.A.)), for example, the
Manitoba Court of Appeal explicitly considered how ‘bizarre’ (para. 17) behaviours
undermine credibility. In this case, an aboriginal woman living in poverty in a remote
Northern community alleged that she had been repeated sexually assaulted by her sister’s
husband. Her ‘abnormal’ behaviours, highlighted in this decision as raising concerns
about her credibility, included being alone with the accused and borrowing his
lawnmower. As the Court asked, ‘Why would she put herself at risk of being raped for
the sole reason of borrowing a lawnmower to cut the grass?’ (at para. 17).
The characterization of this complainant’s actions as unusual enough to undermine her
credibility demonstrates a decontextualized view of ‘risk management’ that ignores
constraints on action arising out of situations of social marginalization, including the
necessity of continuing to interact with a violent man. As other feminist critics have also
argued, while clearly confirmed by doctrine, the affirmative consent standard has been
inconsistently applied by trial judges and many sexual assault decisions continue to be
infused by myths and stereotypes that prevent legal recognition of unwanted sexual
intrusions (Ruparelia 2006). In part, this gap between ‘law as legislation’ and ‘law as
practice’ occurs because the legal discourse of affirmative consent enacts a separation
between discrete events and the power relations constructing vulnerabilities. Sexual
assault is reconstructed as the outcome of failed responsibilization and the power
relations that define sexual violence are obscured. Extremely disadvantaged women,
especially those who can be viewed as inhabiting spaces of risk, may be most likely to
fall through the cracks of an affirmative consent standard.
Systemic relations of race, class and gender, silenced in judicial discourses of affirmative
consent, interact to construct some women’s bodies as violable. The Native Women’s
Association of Canada (2009) has drawn attention to a culture of extreme racialized,
sexualized violence against aboriginal women and girls. In the last 25 years, 520
aboriginal women have been murdered or gone missing in circumstances involving
violence (88). Research suggests that Canadian aboriginal women face rates of physical
and sexual assault that are many times higher than the average for all Canadian women
(Dylan, Regehr & Alaggia 2008). As Razack (2000) contends, sexual violence against
aboriginal women is an ongoing repetition of the colonial encounter that is sanctioned by
law. While there have been no systematic reviews of sexual assault decisions involving
aboriginal complainants since the entrenchment of an affirmative consent standard, some
analyses suggest that racist stereotypes, long deployed to discount aboriginal women’s
claims and render them ‘unrapeable’, persist and are being recoded under norms of risk
management (Gotell 2008; Jiwani & Young 2006). The discourse of ‘high risk lifestyle’
has framed criminal justice and investigatory responses to the national tragedy of missing
and murdered aboriginal women (Gotell 2008: 884). This framing locates aboriginal
women in a space of risk. High profile cases have demonstrated how the culpability of
white men enacting sexual violence against aboriginal women is often minimized, while
complainants and victims are held responsible for their own violation because they
engaged in ‘risky’ actions such as sex work, drinking and hitchhiking (Razack 2000;
Gotell 2008).
The decontexutalized lens of affirmative consent, and the manner in which choice and
responsibility are highlighted, pose problems for other highly vulnerable groups of
Canadian women. Although women with mental disabilities face extremely high rates of
sexual violence, Benedet & Grant contend that the substantive law of sexual assault is
inadequate to meet their needs (2007; and in this volume). Based upon their analysis of
more than 100 Canadian cases, they demonstrate how the courts rarely acknowledge the
specific vulnerability of women with mental disabilities and very often use the language
of autonomy in order to justify acquittals. Legal attention is focussed on complainants’
participation in the sexual activities as an indication of consent, ignoring how high levels
of control over the lives of women with mental disabilities produce compliant behaviour.
Benedet & Grant are critical of the overemphasis on complainants’ conduct in these cases
and the corresponding failure to scrutinize defendants’ actions in inducing compliance,
actions that undermine the voluntariness of consent. Moreover, exacting demands of
accuracy, consistency, rationality and psychological coherence placed upon all sexual
assault complainants, work against the legal recognition of sexual violence against
women with mental disabilities. The focus in Ewanchuk on what the complainant was
thinking creates difficulties where the complainant was unable to tell the court what was
going on in her mind at the time of the alleged assault. Benedet & Grant argue that the
substantive law of sexual assault is premised on the assumption that complainants do not
have disabilities. The decontextualized lens of affirmative consent creates a fiction of
sexual autonomy, while failing to acknowledge how agency is constrained in situations of
disadvantage and dependency.
CURRENT ISSUES: NEOLIBERAL GOVERNANCE, THE DECLINE OF LAW
REFORM AND THE EMPHASIS ON ENFORCEMENT
The movement towards an affirmative consent standard can be seen as a positive
outcome of feminist-inspired law reforms enacted in the 1990s. Important decisions
consolidating this standard function as symbolic public testimonies of law’s claim to
justice. At the same time, judicial discourses affirm an individualized and narrow
understanding of sexual consent. The case law has been marked by inconsistent judicial
interpretations and by decontextualized understandings of sexual assault that reinforce
individual responsibility and new forms of victim-blaming. Moreover, the statistical
evidence strongly suggests that the important objectives of increasing women’s
confidence in the criminal justice system, improving reporting rates and reducing attrition
have yet to be realized.
Despite this very unfinished agenda, the problem of sexual violence has dropped from the
Canadian political landscape. In the face of persistent evidence of gender inequalities,
including high rates of sexual violence against Canadian women, spaces for the
articulation of gender equality claims-making on the state have closed. While committed
to ‘a get tough on crime agenda’, the Harper Conservative government cut the budget of
Status of Women Canada (the core interdepartmental agency responsible for promoting
women’s equality within the federal state) by 40 per cent, removed the word ‘equality’
from its mandate and fundamentally altered the funding criteria for women’s
organizations, making research and activities related to activism ineligible for funding
(Brodie 2008: 146). Within this climate of entrenched neoliberalism, a conception of
sexual assault law reform tied to the advancement of gender equality has been rendered
increasingly unintelligible. The most recent amendments to sexual offence provisions,
passed in 2008 with the support of a vocal social conservative lobby, increased the age of
consent from 14-16, while maintaining 18 as the age of consent for anal sex (Desrosiers
2009). Sexual health, youth and LGBT organizations critiqued this amendment, arguing
that it would reduce access to sexual health services. Critics argued that addressing the
lack of enforcement of existing sexual offence provisions would be a more effective
strategy in combating the sexual exploitation of young people; raising the age of consent
is a largely symbolic initiative that would do little to reduce sexual exploitation. Feminist
organizations were, however, notably absent from the list of witnesses appearing before
the legislative committee on this bill. National women’s groups that were centrally
involved in consultations that produced sexual assault reforms in the 1990s have been
increasingly silenced as a result of federal funding cuts.
In a context where neoliberal political rationalities frame politics as if gender no longer
matters, opportunities for future law reforms that might address the persistent gendered
realities of sexual violence have diminished. At present, attention is increasingly shifting
to the question of how to ensure the enforcement of existing law. One emerging project
involves the strategic use of civil and constitutional litigation to compel police to
thoroughly investigate complaints of sexual assault, adhering to the existing legal
standard for consent. Mounting evidence points to the existence of systemic unfounding
(no-criming) by police, a practice that has extremely damaging impacts for survivors who
feel that they have been labeled liars by the state. Dubois (2009) has highlighted evidence
that confirms that police officers are trained to approach sexual assault investigations
with the suspicion complainants are lying. Some categories of complainants, including
aboriginal women and women with mental health problems, may be particularly
vulnerable to being disbelieved (Dylan, Regehr & Alaggia 2008; Hattem 2009: 33). In
2000, police across Canada declared that there was ‘no crime’ in 16 per cent of sexual
assault complaints, compared to 9 per cent of assaults (Johnson 2009: 10-11). Although
Statistics Canada no longer publishes rates at which complaints of sexual assault are
determined unfounded, recent studies covering four jurisdictions have found rates of
between 7 and 32 per cent (Hattem 2009; Dubois 2009). According to one study that
examined police files, unfounding was determined to be more prevalent in cases that
involved non-strangers and no-force and victims who did not clearly say ‘no’,
demonstrating how the doctrinal consent standard fails to guide police decision-making
(Hattem 2009).
Using the recently confirmed tort of negligent investigation and building on a significant
decision that found police negligence in the conduct of a sexual assault investigation a
violation of Charter sexual equality (Jane Doe v. Metropolitan Toronto Police (1998) 39
O.R. (3d) 487 (Ont. Ct. Gen. Div.), a group of feminist law professors and students from
the University of Ottawa have begun to lay the foundation for claims against police for
‘wrongful unfounding’ (Crew 2009). The concept “wrongful unfounding” refers to the
wrongful clearing of sexual assault complaints by police and intentionally draws an
analogy with negligent investigations producing “wrongful convictions,” now easily and
popularly understood to be a violation of justice. The reconceptualization of the
widespread practice of unfounding sexual assault complaints aims to ensure the
enforcement of existing law by using litigation and the threat of financial damages to
challenge discriminatory police practices. Strategic interventions such as this, using law
against itself, open possibilities for reducing the gap between ‘law as legislation’ and
‘law as practice’ in a political climate that is resistant to feminist claims.
CONCLUSION
Law reform efforts were only one component of a broad-based Canadian feminist
strategy that sought to de-individualize sexual violence and place it firmly in the social
and political arena as a legitimate object of governmental intervention. As I have argued
here, even though statute and doctrine have moved Canadian law in the direction of an
‘only yes means yes’ standard, the transactional logics of affirmative consent operate to
decontextualize sexual violence from the social power relations that define it. The
atomized frame of criminal law is accentuated in a context of neoliberalism where risk
management discourses hail women as hyper-cautious victims of sexual violence and
reconstruct vulnerability as a failure of responsibilization.
In a context in which sexual violence as a gender equality issue has disappeared from
political agendas, the opportunities for law reform have closed. This temporary closure of
political spaces has produced a productive strategic emphasis on ensuring enforcement
and altering police practices. Restricted opportunities for law reform should also promote
critical reflection and prompt a reminder that criminal law reform, even in its most
progressive guises, is a limited strategy. As Marcus (1992) has insightfully argued, an
emphasis on vindication in the courts has limited effectiveness for a politics of rape
prevention. This strategy conceives of sexual violence as a taken for granted occurrence,
with only post rape events offering possible occasions for intervention. In the present
context, a renewed focus on prevention, including cultivating women’s resistance to their
assigned role as safety-conscious victims-in-waiting and engaging men in anti-rape
education and politics, constitute promising extra-legal strategies.
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1
In the absence of a SCC ruling, appellate court rulings like Malcolm are not binding outside their
own state jurisdiction. Nonetheless, such rulings will be of persuasive authority and may influence
interpretations in other jurisdictions.