Thirty years later, Canada’s sexual assault laws seem to have failed. Changing rape to sexual assault, eliminating the need for corroborating evidence and other reforms were supposed to make sexual assault easier to prosecute. But, as The Globe and Mail has reported, sexual assault in Canada is still common, underreported and undercharged, with low conviction rates and even lower sentences.
So what happened to the high hopes of the 1983 changes? Reality happened, running right up against the limits of law reform.
Sexual assault is shockingly pervasive. As The Globe’s story notes, a woman is sexually assaulted in Canada every 17 minutes. And yet sexual assault remains surprisingly contested. Unlike murder, assault or robbery, which are simply recognized as bad things, the “badness” of sexual assault remains murky. Was it really sexually assault? Are you sure she didn’t consent? And what is sexual assault, anyway? Did he just brush up against her or something? These are the common refrains around allegations of sexual assault.
Some suggest that the reforms that changed the language from rape to sexual assault are responsible for this playing down of the seriousness of the offence. I’m not so sure. It’s not like rape charges were treated so seriously in the past.
The problem with prosecuting rape and/or sexual assault is precisely the blurred lines between legitimate and illegitimate sex, between sex with and without consent. Murder and physical assault don’t revolve around consent. Sexual assault does. It all comes down to consent.
And what exactly is this thing called consent? It should be a simple “I said no.” But, when you add the reality of gendered sexual roles, relationships, expectations and stereotypes, that clarity slips away. A woman’s no is still not accepted as definitive. She was “being coy,” or she “didn’t really say no,” or she is “just lying after the fact” because she is ashamed. Sexuality remains a minefield, riddled with sexist assumptions, unequal power relations, desire, shame, guilt and distrust.
Law has never done a particularly good job of regulating it. Admittedly, much of law’s attempts have been directed at prohibiting more consensual sexuality, from sodomy to sex work to pornography, all of which continued despite their illegality.
But, even on the non-consensual side of the ledger, where there should be a role for criminal law, there are serious questions about what law can and cannot accomplish. Criminal law has a lot of objectives: deterrent, retribution, incapacitation, rehabilitation, restoration. Some would add the symbolic importance of criminal sanction. But, to what extent can criminal laws actually change social behaviour? Particularly, pervasive social behaviour? Particularly, pervasive sexually based social behaviour?
Let me use a slightly ridiculous analogy. If everyone simply refused to stop at red lights, the law would not be able to enforce the red light rule. If everyone had a different idea of what red actually looked like, and whether it really required people to stop, law enforcement would be utterly impossible. Laws must have a degree of buy-in from society; they must align with social norms, to a certain degree, if they have any hope of efficacy.
But, what about a law that challenges social norms, like a sexual assault law? How much can we expect a law to change those social attitudes? Or, conversely, how much will those social norms actually change the law?
When it comes to sexual assault laws, those social norms have continued to wreak havoc on the original intention of the reformers. Women are not believed, or they are blamed for what they wore. Law enforcement officials are as encumbered by these social norms as anyone else. Witness the police officer who, just two years ago, told a room full of York University students concerned about sexual assault on campus that they should not “dress like sluts.”
Then again, witness what happened after he said that: The birth of “SlutWalk,” a massive grassroots uprising of young women fed up with what they have labelled “rape culture,” that blames them for sexual violence. A new movement was born from the frustrations over decades of failed sexual assault laws.
The 1983 reforms did not fundamentally challenge rape culture. Nor, perhaps, should we have expected them to. Law reforms are a good start, and sometimes we cannot move forward without them. But they’re not a quick fix, and never will be.
Seriously transforming the way in which criminal law deals with sexual assault requires a fundamental transformation of our underlying sexual culture. SlutWalk and other broader cultural and social campaigns that challenge our understanding of sex, sexuality, sexual assault and consent are what is needed if these laws are to live up to even a fraction of their promise.
Brenda Cossman is a professor of law at the University of Toronto.