Despite many changes to the Criminal Code sexual assault provisions and training of judges and other actors, the legal system still has challenges when it comes to sexual assault.
The Criminal Code treats sexual assault as a subcategory of assault under s. 251, to emphasize that sexual assault is about violence, not sex. Generic and sexual assault each has three gradations, consent can be a defence for both and in both cases the law deems the complainant cannot consent under certain circumstances.
(As a note, there remain some forms of sexual assault, such as against a person with a disability, included under Part V of the Code — Sexual Offences, Public Morals and Disorderly Conduct — suggesting that for some purposes sexual assault is still treated as a moral offence.)
Yet, the Code also acknowledges that sexual assault is not like other forms of assault. The maximum penalties are higher for sexual assault. There are additional reasons why consent may not be available as a defence that reflect the specific nature of how a sexual encounter might not be consensual. The Code also has provisions about the disclosure of records and the admissibility of evidence of the victim’s prior sexual conduct that have no analogy for generic assault.
The Code’s “special” sexual assault provisions recognize that sexual assault is fundamentally different from generic assault, in part because of the myths and stereotypes that still infuse perceptions of women’s sexual activity. (This also is true of domestic or intimate partner violence.) These are at the root of why the criminal justice system does not appear to work for victims of sexual violence, since they are too often reflected in police investigations and factors judges consider in making their decisions, making women reluctant to bring allegations.
In fact, police, prosecutors and judges have received training on how to deal with sexual assault cases, including how to treat the complainant. Nevertheless, there is general acknowledgement that more training is required. Recent media coverage makes it clear that police services require a better understanding of what happens to women who suffer sexual assault and has prompted police services to respond to that need.
Sexual assault crisis centres, separate from the formal legal system, have existed for many years across the country as a crucial support for women (and now men) who have experienced sexual assault. Now new initiatives more closely aligned with the legal system itself hold tentative promise for victims of sexual assault as they enter the legal process. If successful, they could help increase the number of victims willing to bring their allegations to the police.
One is the pilot in Ontario to provide four hours of legal advice (not representation) for victims of sexual assault, although it is currently limited to Toronto, Ottawa and the District of Thunder Bay. In Toronto, the Barbra Schlifer Commemorative Clinic plays a major role.
Of course, other crimes can result in trauma and difficulty for victims in dealing with the legal system. So why should victims of sexual assault have lawyers, if other victims do not?
Because the myths and stereotypes about women and sexual activity affect women, too.
Police must probe the victim’s account, as for any crime, but their questioning, even if not intended, can seem to be an attack on the victim.
Lawyers advising victims at the initial stage can explain the importance of revealing all the circumstances of the situation, even if some aspects of those circumstances seem self-incriminating. They can ask “the hard questions” so that the reason the police ask them will be clear, as well as indicate questions about which the victim should be concerned. The reality is that the hard questions will be asked by defence counsel at trial (perhaps legitimately as an attack on credibility), surprising prosecutors who haven’t been given the full story.
Prosecutors must know the worst so that they can prepare for it.
The second initiative is the Victoria Sexual Assault Clinic in British Columbia, located in the same building as a sexual assault crisis centre. It brings together all services related to sexual assault, including examinations, support and counselling, as well as interviews by the police and by the Crown. It is hoped that for complainants the atmosphere is less confusing and undermining than the more traditional approach. It echoes a special sexual assault court for which Crowns and judges are specially trained, analogous to domestic violence courts in some jurisdictions.
While not perfect, the criminal law on paper has responded to many of the problems that existed in the system previously. And training for those in the legal system who deal with sexual assault cases has made a difference. Media coverage indicates that some police investigators did satisfy the complainants that they were being treated seriously and were understood.
There is more to be done on that front, however. It is only when women report sexual assaults that the criminal justice system has a chance to do its job of making it clear that sexual assault is unacceptable. Lawyers assigned to complainants and freestanding centres that bring together the various aspects of sexual assault investigations are options worth exploring further to raise reporting rates.
Patricia Hughes is the founding executive director of the Law Commission of Ontario (2007-2015) and former dean of law at the University of Calgary.