Shakes Sis has an interesting post about various social and legal problems with enforcing rape laws in Britain. Such problems are of particular interest to me, since a large part of my MA thesis was about an important Canadian Supreme Court decision that impeded an attempt by the legislature to restrict the extent to which myths and stereotypes affected the enforcement of sexual assault law. One of the major problems with enforcing sexual assault law is that a victim’s past sexual history would often be discussed in open court. This both made it difficult to secure convictions based on the appallingly sexist myth that having consented to sexual relations in the past somehow provides evidence of current consent, and also made victims reluctant to pursue legal claims in the first place–who wants irrelevant details of their past sexual lives discussed in open court? Parliament, after studying the issue and finding that a previous law that left a great deal of discretion to judges wasn’t working, passed a “rape shield” law that would 1)prevent the defense from introducing evidence about a victim’s “sexual reputation”–such as was used in the infamous OC rape case–and 2)prevent a victim’s sexual history from being adduced unless it met very narrowly drawn standards of probative value. The Canadian Supreme Court, however, struck down the latter section. The problems with this conclusion are clear–you can’t call a rape victim a slut in open court, but many judges may allow you to discuss her sexual history and hope some members of the jury will draw the inference for themselves–and the Court’s reasoning isn’t very persuasive. What was particularly odd about this is that the Canadian Supreme Court is ordinarily very sympathetic to feminist arguments; I was interested in explaining the case because it was so anomalous. Basically, it’s a classic case of asserting judicial supremacy; even where the court accepts the legitimacy of Parliament’s goals, the Court essentially argued that the legislature had to trust the courts to achieve these goals (despite extensive evidence that the courts couldn’t be trusted to exercise their discretion appropriately in this case.)
The problems with the Supreme Court’s “trust us” approach can be seen in the Ewanchuk case in 1998. A woman went for a job interview with Ewanchuk, who after it was completed repeatedly made physical sexual advances although she told him to stop several times and never expressed consent. Despite the fact that Ewanchuk didn’t even testify, and that the trial court found the complainant to be a credible witness, Ewanchuk was acquitted based on a defense of “implied consent.” The government appealed, but the Alberta Court of Appeal upheld the trial court. Judge John McClung–a wingnut who was a hero to reactionaries based on his anti-gay rights rulings–argued that:
…it must be pointed out that the complainant did not present herself to Ewanchuk or enter his trailer in a bonnet and crinolines. . . . she was the mother of a six-month-old baby and, along with her boyfriend, she shared an apartment with another couple…the sum of the evidence indicates that Ewanchuk’s advances to the complainant were far less criminal than hormonal…In a less litigious age going too far in the boyfriend’s car was better dealt with on site with a well-chosen expletive, a slap in the face or, if necessary, a well directed knee.”
It would be difficult to get a better summary of all the various sexist myths that have hampered the enforcement of sexual assault law. By this time, however, Parliament–in response to the Seaboyer decision–had made sexual assault a “reverse onus” defense–if a defense was based on consent, then the burden of proof rests with the defendant to prove that consent was obtained. Obviously, this makes the evidence-free “implied consent” defense the court accepted a non-starter, and the Alberta courts were unanimously overruled by the Supreme Court. Which brings us to our Sunday sermonette, from the concurring opinion by Justice Justice L’Heureux-Dube:
Both the trial judgment and that of Justice McClung do not make the basic distinction that consent is a matter of the state of mind of the complainant and belief in consent is, subject to s. 273.2 of the Criminal Code, a matter of the state of mind of the accused.
This error does not derive from the findings of fact but from mythical assumptions that when a woman says “no” she is really saying “yes”, “try again”, or “persuade me”. To paraphrase Fraser C.J. at p. 263, it denies women’s sexual autonomy and implies that women are “walking around this country in a state of constant consent to sexual activity”.
Even though McClung J.A. asserted that he had no intention of denigrating the complainant, one might wonder why he felt necessary to point out these aspects of the trial record. Could it be to express that the complainant is not a virgin? Or that she is a person of questionable moral character because she is not married and lives with her boyfriend and another couple? These comments made by an appellate judge help reinforce the myth that under such circumstances, either the complainant is less worthy of belief, she invited the sexual assault, or her sexual experience signals probable consent to further sexual activity. Based on those attributed assumptions, the implication is that if the complainant articulates her lack of consent by saying “no”, she really does not mean it and even if she does, her refusal cannot be taken as seriously as if she were a girl of “good” moral character. “Inviting” sexual assault, according to those myths, lessens the guilt of the accused…
Finally, McClung J.A. made this point: “In a less litigious age going too far in the boyfriend’s car was better dealt with on site — a well-chosen expletive, a slap in the face or, if necessary, a well-directed knee” (p. 250). According to this stereotype, women should use physical force, not resort to courts to “deal with” sexual assaults and it is not the perpetrator’s responsibility to ascertain consent, as required by s. 273.2(b), but the women’s not only to express an unequivocal “no”, but also to fight her way out of such a situation. In that sense, Susan Estrich has noted that “rape is most assuredly not the only crime in which consent is a defense; but it is the only crime that has required the victim to resist physically in order to establish nonconsent.”
All exactly right–this opinion provides a good basis for legal reform, but also explains why, as Shakes Sis explains, even good laws are often so difficult to enforce. These myths are disturbingly resilient.
As a disgraceful coda to the Ewanchuck case, after his arguments were demolished by the Supreme Court McClung wrote a letter to the National Post claiming that the reasoning of L’Heureux-Dube (whose husband had committed suicide) “could provide a plausible explanation for the disparate (and growing) number of male suicides being reported in the province of Quebec.” Lovely fellow.