Elaine Craig is an associate professor at the Schulich School of Law at Dalhousie University and the research director of the Canadian Centre for Legal Innovation in Sexual Assault Response.
A sexual assault sentencing decision released last month reveals how much work has yet to be done to prevent rape mythology from infecting the criminal justice system in Canada.
The case involved a man who admitted to a violent sexual assault committed eight days after he sexually assaulted another woman. The Crown recommended a sentence of three years. The accused’s lawyer recommended a sentence of two years. Both the Crown and the accused’s lawyer recommended he serve his sentence for the second sexual assault after the one he is currently serving for the first offence. Nova Scotia Justice Peter Rosinski rejected their recommendations and sentenced the accused to two years to be served concurrently with the sentence for the first assault (meaning, in non-legal terms, he effectively gave him a sentence of only six months for the second assault, not the two or three years recommended by the lawyers).
In explaining his decision, Justice Rosinski stated: “This offence occurred immediately after consensual activity – which suggests it was an impulsive, rather than [a] premeditated, decision by” the accused. His characterization of the second sexual assault as an act of impulse following consensual sexual activity was one of the factors Justice Rosinski relied on to justify the sentence. His conclusion that this was an impulsive act, and thus less blameworthy, is as laden with discriminatory rape mythology as it is factually wrong.
Prior to the assault, the complainant and the accused were engaged in consensual vaginal intercourse, during which the accused asked if she would have anal intercourse. She said no. He asked again, and again she said no. He later asked a third time. After her third refusal, he placed lubricant on her back and penetrated her anus without a condom. She tried to “squirm” away, but he continued. She began crying and asked him to stop. He did not stop until he had ejaculated. There is no reasonable interpretation of these facts, which were not in dispute, that would suggest this was impulsive – that the accused acted suddenly and without any thought.
The notion that men, at a certain state of arousal, cannot control themselves and will succumb to their sexual impulses is a rape myth. It is a discriminatory belief that was used historically to justify sexual violence against women – to excuse rape.
At one point, the accused argued that the complainant gave him “pre-consent.” Justice Rosinski inferred that this was not an attempt to exonerate himself but instead revealed that the accused did not have a clear understanding of the legal definition of consent. There was no basis to conclude that the accused might have been confused about the meaning of consent. He asked for consent three times. Each time it was denied. When he then engaged in the act despite the complainant’s refusals, she resisted, began to cry and asked him to stop, yet he continued for several minutes.
Justice should not be equated with incarceration. Lengthy prison sentences will not solve the prolific problem of harmful sexual behaviour. Justice Rosinski concluded that there was a significant chance of rehabilitation for the accused in this case. Nevertheless, this decision should cause alarm. Despite decades of evidence collection, advocacy and legislative reform, long-discredited stereotypes continue to permeate every stage of the legal process in sexual assault prosecutions. This case reveals how, even when an accused admits guilt, these harmful myths can infiltrate the decisions of sentencing judges.
This was a brutal sexual assault that left the complainant bruised, bleeding and crying, unable to work – and faced with the effect of continuing psychological trauma. Her neighbour, who found her curled up and crying hours after the attack, described her as a “wreck in a human shell.” Minimizing the accused’s blameworthiness in this case on the basis of the fallacious assertion that this was impulsive reinvigorates the myth that rape happens because men cannot control themselves. It undermines the social impact of important legal reforms to the definition of consent to accept in the face of facts like these that an accused, who tried at one point to justify his behaviour by feigning confusion, might actually have been confused about what consent means when he engaged in this behaviour.
Are we really still in an era in which it is necessary to teach judges to reject fantastical stories about a violent man’s purported confusion about what constitutes consent or that sexual assault is not a product of irrepressible male impulses? It seems we are.
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