The federal government is about to introduce legislation that will abolish rape with the stroke of a pen— that is, strike the word “rape” from the lawbooks. We think that is wrong. Granted, it must be clear to all but the most sexist observers that the present rape laws are not working. Too few rape victims report their attacks and an insidious moral stigma still attaches to victims. Many proponents for change, such as Lorene Clark and Debra Lewis, Canadian authors of Rape: The Price of Coercive Sexuality, say that to improve the situation rape must be removed from the category of sexual offences and reclassified as assault. A second focus for reform is the drive to decrease penalties. Susan Brownmiller, the American author of Against Our Will; Men, Women and Rape, was one of the first to call for this change. “We must normalize the penalties for such an offence and bring them into line more realistically with the penalties for aggravated assault, the crime to which sexual assault is most closely related,” she argues. Lesser penalties, it is assumed, will diminish the stigma associated with the offence and contribute to higher rates of conviction.
All three major Canadian federal parties support reforms that would reclassify rape and decrease penalties.
Currently, the maximum penalty for rape is life. Sources in Ottawa say that proposed amendments will be introduced in this session of Parliament to abolish the category of rape in favor of a new three-tiered system. The lowest tier, “sexual assault,” will cover most forms of rape, with a maximum penalty of five years. The second tier,
“sexual assault causing bodily harm or armed with a weapon,” will have a maximum 14-year penalty. The most serious forms of rape will fall within the new offence of “sexual assault with intent to maim or endanger life.” This last charge, with a maximum penalty of life, will be extremely difficult to prove and will rarely be used.
But will the proposed changes be substantive? Will they actually encourage more women to come forward? Will they secure more convictions and act as an effective deterrent? The central question is—can rape, in fact, be desexualized? We believe rape victims perceive rape to be totally different from other forms of physical assault. The fear that it engenders can best be likened to the male fear of castration. As one rape victim has said: “There’s something worse about being raped than just being beaten. It’s the final humiliation, a political act on the part of the man.”
It would be a great mistake to eliminate the word “rape” from the criminal law. We only want rape to disappear if the crime itself goes away. In a completely nonsexist society, rape would be unthinkable. But since our culture generates rape, a peculiar overlap of violence and sex, we don’t want to see that reality swept under the rug. To eliminate the word will not eliminate rape itself. We think lowering
the penalties will depreciate the seriousness of the offence. John Takach, Ontario’s deputy director of Criminal Law and of Crown Attorneys, agrees: “In practice, the
range of sentence in Canada for convicted rapists is now four to six years. And this is with a maximum life penalty. If rape, reclassified as sexual assault, can get you anywhere from $50 to five years, where is the deterrence? Where is the stigma of being convicted?” (The situation becomes ludicrous when the proposed penalty structure is compared with other Criminal Code offences. For example, the maximum penalty for sending a letter or making a telephone call threatening to cause injury is 10 years; committing mischief with public property could net you 14 years.) __Lower penalties might make more
sense if indeed they lead to a higher rate of conviction. But, as Takach says: “The trial process will continue to be traumatic for the victim. There certainly won’t be more convictions. We’ll still run into the same issues, the same problems of proof.” By changing rape to assault and restructuring the offence, an enormous area would be created for defence counsels to explore. Increased litigation, while lawyers and judges battle out legal arguments, will not improve the situation for rape victims.
‘Rape is totally different from other physical assaults’
One of the major failings of the proposed amendments concerns the issue of consent. Rape is now defined as sexual intercourse without consent. Historically, the difficulty of proving lack of consent has been the main stumbling block in rape trials. There has always been tremendous skepticism about a woman making sexual complaints unless she has been brutally beaten in an attack by a complete stranger. The amendments would in no way alter the requirement that lack of consent be proven. Just as with rape, for the Crown to prove that a sexual assault took place, it would have to convince the court that the woman unequivocally did not consent. Without signs of force on the victim, the defence counsel would still try to establish consent by cross-examining her, often with humiliating results. We believe the new amendments are cosmetic on the issue of consent; they do not alter the law substantively.(Ironically, under our present system, a rapist can be convicted of indecent assault and assault anyway.)
We believe the proposed rape amendments are riddled with discrepancies and irrational assumptions. They would not give rape victims greater protection. Lower penalties would speak loud and clear to society that the crime was no longer as serious as it once was. There ¿s no evidence to suggest we would get a higher rate of convictions. If these amendments become law, we may never have the opportunity to reintroduce the legal concept of rape. Before we make such a major commitment, we must reconsider.
Leah Cohen, author and public lecturer, and Constance Backhouse, professor of law at the University of Western Ontario, are co-authors of The Secret Oppression: Sexual Harassment of Working Women.
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