 Introduction
This paper will address the topic of sexual assault
as deviance in Canada. Issues
being discussed will include why sexual assault is deviant in and of
itself. The laws and changes
made to them will be examined as well as a discussion about how a person
labelled 'sexual offender' or deviant responds to society's reaction
towards their behaviour.
In this
paper, deviance will be defined as behaviour that receives a negative
reaction or sanction based upon a group's moral evaluation.
Furthermore, the term sexual assault will be defined as it is in
the Canadian Criminal Code. Although
the laws on sexual assault in Canada are applicable to both adults and
children under the age of 18, this paper will focus primarily on adult
sexual assault.
Sexual Assault Defined
In 1983, Canada passed Bill C-127, which made changes
to the laws of rape, attempted rape,
and indecent assault. The new
legislation defined sexual assault according to three levels that include
acts such as unwanted sexual touching to violent physical harm to the
victim. The following
(Statistics Canada, 1999: 3) are the Criminal Code offences that will be
included in this paper's definition of sexual assault:
-
Sexual
assault (level 1) ? involves minor physical injuries or no
injuries to the victim. It
carries a maximum sentence of 10 years imprisonment.
-
Sexual
assault (level 2) ? involves sexual assault with a weapon,
threats or causing bodily harm. It
carries a maximum sentence of 14 years imprisonment.
-
Aggravated
sexual assault (level 3) ? results in wounding, maiming,
disfiguring or endangering the life of the victim.
The maximum sentence for this offence is life imprisonment.
History and Recent Changes to Sexual Assault Laws in Canada
From a historical perspective, rape laws were created
to ensure the protection of a woman as property of one owner- the husband.
The original meaning of the word rape was 'to steal' (Kinnon, 1981:
36). In early Canadian
society women were submissive, second rate citizens who did not have the
same rights and freedoms as men. This
view of women as property formed the basis of Canadian rape legislation.
Prior to 1983, rape was considered to be "sexual
penetration of a woman's vagina with a man's penis without the woman's
consent, outside of marriage. Without
penetration, a forced sexual act is not rape" (Schissel, 1996: 137).
This legislation meant that a man could not be raped, and a husband
could not rape his wife. The stereotypes associated with women at the time (many may
still exist) helped to allow the laws to remain unchanged for so long.
Some typical stereotypes included the following: a man has
"rights" to sex from a woman in certain situations, also, rape
victims were "asking for it".
Women who "led" a man on, or dressed provocatively
deserved what they got (Ministry
of Attorney General, 1993: 3).
Changes to the legislation resulted in large part
from lobbying efforts by women's groups to improve the status of women in
areas such as labour, law and politics.
These groups influenced other legislative changes around the same
time as Bill C-127 such as the Canadian Charter of Rights and Freedoms,
which guaranteed, among other things, gender equality.
These other changes may have created the momentum for change to
rape laws (Schissel, 1996: 124).
Bill C-127 was meant to remove the gender-biased
conditions in the existing legislation, and to improve conditions for the
victims of sexual assault. According
to Schissel (1996: 123), under the new law victims no longer had to defend
their reputation in court (the rape-shield provision).
Furthermore, spousal assault is now included in the laws.
There is no reference to gender anymore, meaning that a man can now
be, in the eyes of the law, sexually assaulted.
There was one more significant change to the
legislation. In 1991, in the
case R. v. Seaboyer and Gayme, the
Supreme Court struck down the rape shield law because it violated the
rights of the accused. Following this decision, new ?rape shield? legislation was introduced
in 1992. It provided
guidelines to determine whether evidence of a victim's sexual activity
could be admitted in court. It
also defined what consent was. In
addition, it restricted the situations in which the accused could claim
that there was a mistaken belief of consent.
It was established that the defense of mistaken belief could not be
used if the belief came from the accused being drunk, careless, or if
he/she did not take reasonable steps to determine whether the victim was
truly consenting to the sexual activity (Statistics Canada, 1999: 2).
An Examination of the Prevalence and Nature of Sexual Assault in
Canada
There seems to be no disagreement over the fact
that the number of sexual assaults reported since Bill C-127 has
increased. However, the
reasons given for the increase vary. This
may be explained by the reality that the legal definition of sexual
assault often conflicts with people's concept of it.
"The lines between rape and sex begin to blur" (Clinnard
and Meier, 1998: 175). Some
studies include a broad interpretion of sexual assault while others follow
very strict guidelines. This
produces varying reports of the amount of sexual assault.
The Report on
Sexual Assault in Canada (1981) informs us that in 1971 there were
2,107 reported rapes to police. 1,230
were declared founded by the police and only 119 of those accused persons
were charged.
According to Statistics Canada (1999) in 1997, there
were 30,735 reported sexual offences to police; 85% were categorised as
level one assault. This is
the lowest level since 1983, however, this rate of 101 cases per 100,000
population is still higher than the rate before 1983 (74% higher).
Rate of reported
Sexual Offences 1983-1997
It is important to note however that sexual offences
account for only a small portion of all reported crimes in Canada.
In BC, there were 5,100 sexual assaults reported to
police in 1996. This is a
decrease of six percent, which is the lowest reported number since 1987
(Ministry of Attorney General, 1999).
It is not clear whether this decrease is a result of less sexual
assaults occurring or if there were just fewer assaults reported.
According to Schissel (1996: 125-127), the increase
in sexual assault rates from 1962 to 1991 cannot be explained only by the
new legislation. He notes
that the rates for non-sexual assaults have also increased and suggests
that the overall trends can be explained in terms of the law and order
politics that have existed since the early 1980's.
In other words, politicians are now more interested in crime
fighting than they were in previous years.
To support this suggestion he states that since 1982 the ratio of
charges to arrests for both sexual and non-sexual assaults has increased
drastically. The author
further states that there was an increase in arrest and charge rates for
sexual assault before Bill C-127, possibly because of the lobbying of the
National Action Committee on the Status of Women.
People have simply become more aware and willing to report crime,
which further increases the crime rate.
Gunn and Linden (1997) also report a drastic increase
in the number of reports made to police since Bill C-127. They follow this statement with an explanation based on the
idea that sexual assault now includes acts that do not have to involve
penetration. Now a person can
potentially be charged for touching or kissing someone without his or her
consent.
Evaluation
of the Changes to Rape Laws
With the changes to the legislation came the
reporting of a "new form" of rape.
It is known as date rape or acquaintance rape.
This type of rape rarely involves extreme force, but rather, the
male attempts to fulfil his sexual expectations while failing to recognise
the resistance by his victim. Often,
the male feels he deserves something from the women; for example, after he
has paid for dinner (Clinard and Meier, 1998: 177).
Rabkin (as cited in Rhynard and Krebs, 1997) suggests that
approximately fifty percent of all sexual assaults are between
acquaintances. This suggests
that date rape has existed for years, but it has gone unreported.
The fact that most sexual assaults are level one assaults tells us
that many of these date rapes could not be reported before the 1983
legislation. The new
legislation changed rape from a crime of sex to a crime of violence.
This helped to change the thinking about rape, and removed some of
the myths surrounding the topic (Clinard and Meier, 1998: 178). Improved
education and training among criminal justice personnel (Clinard and
Meier, 1998: 185) and the fact the women are no longer subjected to a
critical analysis of their behaviour to see if they were responsible for
their victimization (Gunn and Linden, 1997), has created a climate more
favourable for women to report unwanted sexual contact.
One small study in a rural community in Canada (Rhynard
and Krebs, 1997) indicates that the majority of these date rapes involve
only unwanted touching, fondling and kissing.
Sexual intercourse was involved in 35% of the reported cases in the
survey. Although this is a
small sample, due to the broad definition of sexual assault it would seem
plausible that a large-scale study would yield similar results.
The biggest benefit of Bill C-125 is perhaps the
change of attitudes towards the victim by society.
This is evident because more prostitutes and spouses are reporting
assaults, and physical force is not always present in those reported cases
(Gunn and Linden, 1997). However,
there are still problems for the victims within the criminal justice
system. First, Gunn and
Linden, (1997) suggest that "variables reflecting the character of
the victim still have a significant impact on the laying of charges and on
the likelihood of conviction".
In an evaluation of the impact of Bill C-127, the
researchers found that there were many examples of victims whose testimony
was discredited by judges or juries because they felt that the victim was
responsible for what had happened to them.
Many of these cases involved prostitutes who used drugs, or women
who were engaged in activity that departed from societies norms.
Furthermore, since there are rarely witnesses to this type of crime
the judge and jury are forced to rely on the two, often conflicting, sides
of the story that are presented by the accused and the victim.
Lawyers are often forced to get into a character debate (Gunn and
Linden, 1997). The law can do
nothing to change this fact. If
there are no witnesses to prove any one side of the story, the character
of the victim and accused must be analysed.
Second, the authors propose that changing the law does not
inevitably mean that the justice system will, or is even capable of,
changing the way it operates. It may take more time for the results to show, or maybe
certain members of the criminal justice system are resistant to change.
The authors also point out that since very few sexual assault cases
actually go to trial the effectiveness of the legislation is not likely to
be great (Gunn and Linden, 1997). Here
the authors assume that the only measure of effectiveness of Bill C-127 is
the amount of cases that go to trial and result in conviction.
Although this is important for the victims and for the legitimacy
of the criminal justice system, it is perhaps not the most significant
measure. More rape cases
going to trial will not likely reduce the prevalance of this crime in
Canada. However, education and legislation that results in changed
morals, attitudes and beliefs within society may result in a reduction in
the occurrences of sexual assault.
Sexual Assault as Deviance
Laws are not the only factors that make sexual
assault deviant. It is
deviant because violating someone sexually without their consent goes
against the morals of the majority of the population in today's society.
Those persons who commit sexual assault would likely be punished by
society regardless of whether there was legislation against it.
"Sexual assault is first of all an act of violence, secondly a
violent act of a particularly damaging kind that inflicts severe
consequences on all its victims" (Kinnon, 1981: 73).
The Behaviour of the Deviant in Response to Society's Reaction
Quite often, those persons labelled as deviants or
sexual offenders either by conviction or societal reaction will respond in
a defensive manner or with justifications for their actions. Often they are defending or justifying their sense of
"manhood" or their interest in maintaining control and power
over other people. Clinard
and Meier (1998) clarify this idea by stating that "the interactions
between rapists and victims, even in conversation, reveal the rapists'
interest in manipulating and exercising power over their victims"
(p.179). Other justifications include ideas such as: the women really
meant "yes" when she said "no"; the woman provoked the
man's actions through here flirtatious behaviour; she enjoyed it, and
finally the accused will blame the victim's behaviour saying that she was
a prostitute or that she slept around frequently anyway (Scully and
Morolla, 1998: 256-259).
Some offenders do not deny their actions, but they
will try to excuse them. Scully
and Morolla (1998: 261-266) describe three ways by which rapists will try
to excuse their actions. First,
they will suggest that it is not their fault because either the victim or
they themselves had been using drugs or alcohol.
Second, they will ascribe their behaviour to emotional problems
they have. Often they will
relate the problems to a poor childhood, or unstable marriage.
Others will claim their behaviour to be a result of extreme stress.
Finally, these people may attempt to create the "nice
guy" image for themselves hoping it will get them off the hook, or at
least get them some sympathy.
Why are these excuses, denials and justifications so
acceptable to the rapists who use them, and the people who believe them?
Perhaps it is because society still believes some of the
stereotypes about victims of rape. Although
much of the commercials and other media we are exposed to is far more
sensitive to women and their real position in society than it used to be,
some of it has not changed. The
media still consists of jokes and advertising that reflect and enforce the
idea of women as objects, their position of submissiveness and the idea
that force may be needed to achieve dominance over them (Kinnon, 1981:
73). These images can help to
reinforce and support the views of some rapists and other members of
society.
Sexual offenders learn sexual roles and expectations
of roles of the other sex. In
addition, the images of the male role are developed through interaction
with social groups, competitive sports or other displays of physical
aggression (Clinard and Meier, 1998).
"Convicted rapists have learned the attitudes and actions
consistent with sexual aggression against women" (p.254).
Conclusion
The new legislation against sexual assault
appears to have encouraged the reporting sexual assaults and has confirmed
the rights of women in the criminal justice system.
Furthermore, the rates of sexual assault have risen for several
reasons. First the definition
of sexual assault have be expanded considerably so now many acts are
considered assaults that would not have been prior to Bill C-127.
Second, although the report rate is still considerably low compared
to other violent crimes, it has increased noticeably since the new
legislation because many of the stigmas associated with this crime are
being removed from the criminal justice system.
Third, education has encouraged more reporting of non-consensual
sexual acts. Whether or not
rates have risen because sexual assault is occurring more frequently seems
to be undetermined.
Before the new legislation, attitudes towards sexual
assault victims were very negative, and often the accused had more rights
than the victim. The
accused's personality and behaviour was always questioned, assuming that
the woman was just making everything up.
It was as if the victim was the deviant.
Today however, attitudes have shifted in favour of the victim.
No longer is the behaviour of the complainant so closely
scrutinised.
Finally, the persons accused or convicted of sexual
offences most commonly deny and justify their acts by blaming the victim.
Alternatively, they will excuse their acts as a result of
intoxication or emotional problems in their lives.
References
Boyle, Christine L.M. Sexual
Assault, Toronto, Canada: Carswell, 1984.
Canada. Department
of Justice, The Experience of the
Rape Victim with the Criminal Justice System Prior to Bill C-127, by
Marilyn G. Stanley, 1985.
Clinard, Marshall, B. and Robert F. Meier, Sociology
of Deviant Behavior, New York: Harcourt Brace, 1998.
Gunn, Rita and Rick Linden.
"The Impact of Law Reform on the Processing of Sexual Assault
Cases", Canadian Review of
Sociology and Anthropology 34 (2), pp. 155-177.
(From EBSCO Publishing.) Retrieved September 29, 1999 from the
World Wide Web:
http://www.epnet.com /ehost/login.html
Kinnon, Dianne.
Report on Sexual Assault in
Canada, Ottawa: Canadian Advisory Council on the Status of Women,
1981.
Ministry of Attorney General, "Police and Crime,
Summary Statistics 1987-1996" http://www.ag.gov.bc.ca/ programs/psrb/psd/summary/sumstats.htm
[Oct 1, 1999].
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Assault Legislation in Canada: an Evaluation.
Homicide and Sexual Assault, 1992.
Rhynard, Jill and Marlene Krebs, "Sexual Assault
in Dating Relationships", Journal
of School Health 67 (3). (From
EBSCO Publishing.) Retrieved
September 29, 1999 from the World Wide Web:0
http://www.epnet.com /ehost/login.html
Schissel, Bernard, "Law Reform and social
change: a Time-Series analysis of Sexual Assault in Canada", Journal
of Criminal Justice 24 (2), pp. 123-138.
Scully, Diana and Joseph Marolla, "Convicted
Rapists' Vocabulary of Motive, Excuses and Justifications" in
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