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Supreme Court of Canada in Ottawa (Dave Chan For The Globe and Mail)
Supreme Court of Canada in Ottawa (Dave Chan For The Globe and Mail)

EMMETT MACFARLANE

Steubenville’s rape outrage shines a light on our sex-consent laws Add to ...

The Steubenville, Ohio, rape case – in which two football players were sentenced to prison for raping a drunken 16-year-old girl – serves as a depressing reminder of where we stand as a society when it comes to sexual violence against women.

The media focus has disturbingly paid disproportionate attention to the “promising lives” – now “ruined” – of the two convicted teenaged rapists, whose status as high school football stars apparently contributed to the town dividing over the case amid accusations of an attempted cover up.

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Even more problematic has been much of the discussion of the case online, reflecting a fairly widespread culture of victim-blaming: the 16 year-old victim was drunk; so drunk, she could not remember much of the evening. At trial, witness testimony that she did not seem to know what was happening to her proved crucial to the guilty verdicts.

There is a pervasive and deeply troubling attitude about rape in our society that extends well beyond the confines of American high-school sports. Victims, in some forums, still must confront questions about their past sexual behaviour, how they were dressed, and how much they drank – as if any of those things justifies or explains away assault, or should allow anyone to imply consent where none exists.

A quick perusal of recent studies suggests that anywhere from 10 per cent to as few as 1 per cent of date rapes are reported in Canada. Fewer result in charges, and even fewer in convictions.

A related problem is the narrow association we tend to have of rape as violence committed by an attacking stranger. The majority of rape victims know their assailant. Further, not all victims resist with violence.

There appear to be people who believe “consent” can be reduced to “well, she didn’t physically resist.”

Until 1999, those people included a lot of Canadian judges. That was the year the Supreme Court finally repudiated the idea that there is a defence of “implied consent” as it relates to sexual assault. This overturned not only the original trial court decision, but the Alberta Court of Appeal decision to the contrary.

Effectively, the Supreme Court mandated that consent must be communicated through clear words or actions of a desire to engage in sexual activity. This does not – contrary to some critics’ claims – transform sexual relationships into a literal contractual one as if you’re buying a used car. But it sets into the law a simple enough axiom: you cannot just assume that someone wants you to touch them.

The notion that this actually needed to be articulated by our highest court as late as the turn of the century is a depressing one.

Changes to how Canadian courts have approached a host of issues around sexual assault are startlingly recent and represent a black eye for the justice system and for the Supreme Court in particular.

In 1991, the court struck down “rape shield” provisions of the Criminal Code that Parliament had put in place to prevent an assault complainant’s sexual history from routinely being introduced by defence lawyers. In 1994, the court changed a common-law rule so that it became possible to use the defence of “extreme intoxication” for sexual assault (i.e. that a perpetrator might be in a state of automatism when committing an assault and therefore not responsible for his actions). And in 1995, the court prescribed a fairly low threshold for granting defendants in sexual assault trials access to the victim’s private medical or therapeutic records.

Fortunately, in response to each of these cases, at the behest of (and in cooperation with) women’s groups, parliament introduced legislation that effectively minimized or reversed the effects of the court’s rulings.

But despite these developments, a broader culture of victim-blaming persists. It was but two years ago that a Manitoba judge commented on the state of an assault victim’s dress, noted “sex was in the air” and dismissed the perpetrator as a “clumsy Don Juan” who may have simply misunderstood what the victim wanted. This attitude should be chilling, but it seems sadly pervasive. If any good can come out of the Steubenville case, it will be that it impresses on more people what constitutes an acceptable understanding of consent.

Emmett Macfarlane is an assistant professor of political science at the University of Waterloo. His book Governing from the Bench: The Supreme Court of Canada and the Judicial Role was published this year by UBC Press.

 

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