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I Object! The Future of Sexual Assault Care is Legal Reform

  • crockaltenhof1
  • Nov 21, 2023
  • 5 min read

Although expanding services to rural areas through tele-health and electronic documenting are advancing, in my opinion, the biggest innovation in sexual assault care needs to be in the legal field. The legal system in the context of sexual assault might be considered just as ‘broken’ as the healthcare system but for different reasons. It causes a lot of mental and emotional stress on victims. For one, the system is not trauma-informed, nor is it set up for victims. The length of time leading to trial can be very long. For any victim or survivor who goes through it, it can take a toll on their mental health. Many victims never get that far because of the difficulties. Research shows that only five percent report their sexual assault to police (Department of Justice Canada, 2017) and of those, only seven percent result in convictions (McMahon, 2016).

One problematic area is the use of the ‘rough sex’ defence which has highly increased over the last decade. In fact, before 2010, there was only one mention of S/M, BDSM, or ‘rough sex’ in a legal case (Craig, 2022). Craig (2022) also notes that courts are failing to apply proper legal doctrine when the waters are muddied within a sadomasochistic context.

Consider R v Hunter, which occurred in Nova Scotia in September of 2019, during a sexual strangulation incident. Despite a witness stating the victim had said ‘no’, squirmed, and tried to get away, the victim’s matching account, and the defence (Hunter) testifying that the victim’s face was red and eyes were tearing, the judge stated that even though he believed the victim, he was not certain that Hunter knew that the victim did not consent, and he acquitted Hunter (Craig, 2022).

A well-known case is that of Jian Ghomeshi, former band member and CBC host. His lawyers used the legal tactic, ironically called ‘whacking’, to discredit the victim. This takes advantage of the fact that the laws regarding sexual assault are not well understood and uses questionable, unethical, and possibly illegal strategies in court to discredit victims (Tremonti, 2016).

Another area is capacity to consent. Except for unconsciousness, there is no legal definition for the capacity to consent to sexual touching. Even though there are definitions about what consent needs to involve, courts are left to identify that themselves, and they are getting it wrong. A comprehensive review of Canadian case law revealed that “no matter how severely intoxicated a woman was when the sexual contact occurred, courts are unlikely to find that she lacked capacity to consent…” (Craig, 2020, p.79). Some judges require evidence of unconsciousness.

R v Al-Rawi is the 2017 case of a Halifax taxi driver who was found almost ‘red-handed’ by police, parked on the side of a road, with an unconscious and naked from the breasts down woman in the back seat, her legs splayed over the front seats. He was holding her underwear and tried to hide those and a shoe that was in the front when the officer appeared. Only 11 minutes had passed since she was picked up. He was between her legs with his pants partially down. Her DNA was on his face. The area of town was not in the direction of her house. The victim had urinated in her clothing and did not remember anything (Craig 2020). Al-Rawi was acquitted. In an appeal, the second judge agreed with the Crown that the first judge committed an error by believing incapacitation meant unconscious only, while also assuming the victim might have been conscious at the time.

A third problem is the lack or improper use of Canada’s “rape shield” law, section 276 of the criminal code. As in the Al-Rawi case, both defense and Crowns erred in allowing flirtatious activity earlier in the evening to be introduced in court (Craig, 2017). As Craig (2016) points out, issues of not following requirements for section 276, failure to identify when previous experience is being introduced, and judges not knowing all requirements for section 276, have occurred too many times. Outdated stereotypes of drunk women being aggressive and consensual to all sexual activities causes this evidence to be erroneously introduced in court, not objected to, and go unidentified by judges, resulting in a discriminatory picture of the complainant.

What the court requires is sexual assault education for lawyers and judges. Not only about how it occurs, but about trauma and how the brain and memory (or lack of it) works after a trauma; creating a more trauma-informed system so victims are not as traumatized and re-traumatized during the legal process; to review myths and misconceptions (Craig, 2021); and to thoroughly discuss and define criteria for consent and capacity to consent; section 276, and proper legal procedures and conduct in court. Creating a trauma-informed system could include procedures such as allowing the defendant to be removed while the complainant testifies (Bellehumeur, 2021). We are moving in this direction with training required for Newfoundland judges (Jones, 2023). Bill C-3 (formerly Bill C-5 [Casavant et al., 2020]), an Act to amend the Judges Act and the Criminal Code, would require judges to undergo sensitivity training before presiding over sexual assault cases (Tunney, 2020; CBC News, 2020). This was inspired by the words from former Federal Court Justice Robin Camp who, during a 2014 sexual assault trial, asked the victim, "Why couldn't you just keep your knees together?" (Tunney, 2020).

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