April 5, 2016

Uncertain Progress – Canadian Sexual Assault Laws

Written by Clay Roth

In 1983, profound changes started to shift the Canadian legal framework for sexual assault. In addition to expanding the definition of rape to include male victims, rape no longer had to be reported within hours of its occurrence. Proof of strictly vaginal penetration by a penis was no longer a requirement, nor was the need for corroboration of a rape victim’s story. Marital rape was criminalized, the word “rape” was subsumed under the term “sexual assault” and the law clarified the concept of consent. But 1983 saw another change: a tiered system that graded sexual assault in three different categories. In a bizarrely literal interpretation of the term “sexual assault,” these tiers are, to this day, stratified by the severity of the physical injury that accompanies sexual assault.

Few, if any, feminist goals – reducing the occurrence of sexual assault and increasing the rate of reporting and prosecution for perpetrators – have been met in the thirty-two years since the changes in law.  According to Brennan and Taylor-Butts’ analysis of StatsCan statistics on sexual assault, rates of sexual assault victimization remain steady while the rates of every other violent crime are in decline, and yet reporting sexual assault has decreased over the last twenty-five years. I wish to examine the three-tiered system, and inquire into how its problematic structure may play into these troubling rates.  I argue it reifies the myth of “real rape” while it absolves genocidal rape against Indigenous peoples.

Before the 1983 amendments, the crime of rape had a maximum sentence of life in prison. After the amendments, only sexual assault that corresponded with wounding, maiming, disfiguring or endangering the victim could be punished with the severity of the previous laws. Sexual assault with a weapon, the carrying of a weapon, injury or injuring a third party now carries a maximum sentence of fourteen years, constituting a lower tier.  The first tier of sexual assault encompasses everything from nonconsensual touching to nonconsensual intercourse, lumping the two together under the same heading, and dictates a maximum sentence of ten years as an indictable offence, and a maximum of 18 months as a summary conviction.

If possible time in prison can correlate to the seriousness of the crime, why is it that unwanted intercourse should be treated as a fraction as serious as unwanted intercourse that results in injury? Why is bodily injury not considered a crime in addition to rape, rather than being that which transforms a “basic” rape into a more serious, substantial rape? Why is rape not understood to be a stand-alone crime? And what about drug and alcohol facilitated, and acquaintance rape? Finally, where do the tiers leave genocidal rape?

Canada became the first country in the world to incorporate the obligations of the Rome Statute into its national laws when it adopted the Crimes Against Humanity and War Crimes Act. Rape, as Canada recognized in 2000, is an act of genocide. Both the definitions of crimes against humanity and war crimes specifically include “rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence”. However, Canada agreed to this with the assumption that rape, for the purpose of genocide, was something that happens “elsewhere.”

Canadian legal decisions often erase or fail to mention the race of the parties, erasing the role of racism in law.  In the imagination of white feminists of the 80s, perhaps the violence of the most abhorrent rape is manifested as an individual man using his physical size and strength against a woman, mutilating or killing her. Violence, however, comes in many forms, and in Canada, genocide of Indigenous people has not, and does not, always look like physical assault. Instead it may take the form of white settlers taking advantage of starvation, poverty, racism, fear, and disenfranchisement. Since contact, white settlers have enacted entitled, emboldened settler violence and domination, and ultimately genocide, through sexual assault.

Not a great deal of physical force may be required when sexual assault targets are frightened, implicitly threatened, confused, indebted, oppressed, inebriated, drugged, unconscious, in shock, or in positions of vulnerability, employment, or trust.  However, certain sexual assault can, through the tiered law, reflect the construction that it’s not “real rape” so long as the victim survives it without broken skin or bones. This supposedly feminist reasoning is ultimately dismissive of rape that is oppressive and coercive in nature.  This is troublesome for the majority of sexual assault survivors, who must be understood by the entirety of the justice system; less than a quarter of reported rapes actually include physical injury. The injury of sexual assault may exist sexually, reproductively, materially (economically and professionally), socially, mentally, emotionally, and culturally, whether or not physical injury takes place.

The oversimplification of sexual assault through the tiered system is one which erases rape facilitated by multiple intersections of power, domination, oppression of every kind, while further entrenching the idea that there is “legitimate” rape –one which is committed with physical force.



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“Criminal Code (R.S.C., 1985, C. C-46).” Legislative Services Branch. http://laws-lois.justice.gc.ca/eng/acts/C-46/section-271.html N.p., n.d. Web. 16 Dec. 2015.

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