For $6 and a smile, the Toronto Rape Crisis Centre will sell you a T-shirt. Six dollars may be a lot for a metre of Chinese cotton, but the smile should come easily; the shirts carry an amusing message: No Means No. Simple, to the point and no mean commentary on male-female relationships. Indeed, those words are far more than a rare example of rad/fem/lib humor. In a curious way, they go to the heart of the indelicate matter of rape, a subject Canadians have occasion to consider anew this month, in the dubious wake of Bill C-52.
Stripped of legalese, C-52 proposes to remove the word rape from the criminal vocabulary. Instead, accused rapists would be charged with indecent assault, punishable by up to 14 years in prison, or aggravated indecent assault, carrying a maximum life penalty. As in the past, a man could not be charged with raping his wife—if she lived with him. But if the couple were separated, a charge could now be laid.
For the moment, C-52 is simply a draft proposal, a kind of white paper on rape, to which Justice Minister Ron Basford has invited response. That is unquestionably a good thing because, in the view of those most concerned with the new legislation— Crown prosecutors, defence lawyers and women’s groups—Basford’s proposals fall far short of laudable, or even significant, reform. To understand the movement for rape law reform, it is necessary to know three principal facts: that most rapes are never reported (the best estimates suggest that between 10 and 40 per cent reach the police); that few reported rapes survive the arduous journey from police investigation to courtroom; and that fewer still yield conviction. Such facts do not inspire unalloyed faith in the judicial system.
The acquittal rate is high because the victim often stands as much accused as the offender. She has enticed the rapist, lured him on. She has shared a drink in a dark tavern with an absolute stranger. She has accepted a ride, invited him back to her apartment. A little kiss, a little sigh, the andante first movement of seduction elicits no resistance. Is it not reasonable to infer, most defence lawyers argue, that the woman actually consented to intercourse, that the rape charge is only the product of her guilty conscience? (If the victim already knows the rapist, the odds on conviction are even lower. For reasons that defy understanding, juries seldom believe a woman can be raped by employers, family friends, etc.) The operative word, of course, is consent. “She did not resist,” the defendant pleads. “How was I to know she
really objected?” Only a few weeks ago, New York state’s Supreme Court overturned a jury’s conviction of rape, arguing that the woman’s actions might have been construed by the accused as “an invitation for him to do what he did.”
The logical goal of Canada’s 23 rape crisis centres, the National Action Committee and the Advisory Council on the Status of Women has been to make rape an assault like any other. If rape is not a sexual offence, but common assault, then consent is no defence. “Or at least, the onus is then on defence counsel to prove that there was consent,” argues Lorenne Clark, coauthor of Rape: The Price of Coercive Sexuality,
one of the best analyses of the subject yet published. “As it stands, the onus is on the victim to prove she did not consent.”
And where there is no corroborating evidence of struggle or violence, rape trials often amount to the word of one against the word of another— a hontest of credibility. Historically, the victim’s character became the target of fresh assault. Her prior sexual behavior was paraded before the jury. A woman who had slept with five men, it was averred, had probably agreed to sleep with a sixth. Under Criminal Code amendments passed in 1976, such parades were expressly forbidden— except if the woman had had relations with the accused or where the judge ruled her sexual history pertinent to the case.
But the 1976 amendments had uneven application. Many judges continued to give wide latitude to explorations by the defence. Others obeyed the letter of the law, but permitted more oblique suggestions of promiscuity. The victim who had parted with her chastity inevitably made an unconvincing witness and many defendants were acquitted by innuendo.
The new federal proposals have
changed the wording but not the substance of rape. “A rose by any other name is still the problem,” complains Gillean Chase, a director of Toronto’s Rape Crisis Centre. “Indecent assault still retains a sexual connotation and yet rape is a crime of violence, not of sex. Even though penetration
is no longer a factor, the woman must still prove she was fondled, or whatever, against her will.” Adds Clark, now drafting her response to the amendments on the shores of the Bay of Fundy: “It’s a quasimove in the right direction. But they haven’t clarified the consent concept. If they make it clear that consent cannot be inferred from lack of resistance, this would be a significant landmark in Canadian legal history.” High praise, but couched strategically in the subjunctive.
Clark’s politic line is echoed by women’s groups everywhere: This is good, but we can do better. Other parties are not nearly so supportive. Says Professor J. Desmond Morton, now retired from the law faculty at the University of Toronto: “Frankly,
I’m confused. I think it’s a Liberal votegetting device, aimed at the women. I don’t understand what’s wrong with the law as it stands. I’ve never accepted the proposition that the woman is put on trial; if that were true, the jury’s sympathies would go out to her and there would be more convictions. I can’t see these proposals having any real effect, except to put more cases in the Court of Appeal.”
Morton clearly occupies a well-entrenched position of conservatism on the rape issue, but he is far from standing alone. “This is a response to a shrill and very vocal group of well-organized women,” says defence attorney David Humphrey. “The ’76 amendments turned the complainant into a sacred cow, and the experience of the ages tells us that, in these situations, what the complainant says is suspect. All this will do is make it as easy as
possible to convict—and create more of those make-work projects known as rape crisis centres.”
Even prosecutors are responding to Basford’s performance with very mixed reviews. “Rape is an aggressive assault and the previous emphasis on penetration was an artificial one,” notes Ontario Crown counsel Howard Morton. “On the other hand, perhaps the ’76 changes haven’t been given enough time to work themselves out. In one fell swoop, they’re doing away with 600 years of law.”
The aggravated indecent assault section of the revised code, which includes “penetration of any bodily orifice” (thus permitting for the first time prosecution of homosexual rape) is no less perplexing. To prove the charge, the Crown will have to demonstrate “severe physical or psychological damage,” no doubt calling expert testimony from psychiatrists to assess the aftershocks of emotional trauma. But what constitutes severe psychological damage?
Whom is the jury to believe when the defence summons its own experts to contradict the Crown’s or to suggest that the woman may have been a fragile commodity before the event? Will rape trials descend into running battles between the disciples of Jung and Freud, with justice determined by the frequency of renewals on Valium prescriptions?
“Bad enough in the past when you were permitted to investigate her moral character in front of the jury,” says Morris Manning, the Toronto lawyer who engineered last summer’s cleanup of Yonge Street body-rub parlors. “Now we’re going to go into her mind? Just consider the possibilities: ‘My lord, I put it to you that the victim was disturbed. She had to be, to go off into the dead of night with this utter stranger.’ Or possibly: ‘This woman is a masochist, Your Honor. I submit she had an unconscious desire to be violated.’ ”
The intent of the draft code may be commendable, says Manning, but it has missed the mark. “It’ll cause more harm for the victim than we’ve ever seen before. If the women are happy with this, they’ve got a surprise coming.” Manning’s own suggestion: Delete all references to psychological damage and let the judge determine the penalty, in proportion to the harm caused. Certainly guilt or innocence should not be decided by the degree of suffering; either the attack occurred or it did not.
The women are hopeful that, having taken this step, Basford will go further—at least as far as enshrining in law the notion that failure to resist is not tantamount to consent. Their hopes may be in vain. Says a source close to thejustice minister: “That’s not a possibility at this moment.”
Nor will Ottawa likely place further curbs on the defence’s right to probe prior conduct. The incidence of acquittal is too high. While juries are notoriously partial to the accused, some defendants are genuinely innocent. Asks Ontario Crown attorney Paul Chumak: “Are we going to send somebody tojail for 14 years without a full examination?”
These arguments and more will be presented when the House Standing Committee on Justice and Legal Affairs convenes to examine the bill—probably in the fall. For now, C-52 prompts many observers to wonder why it was even introduced, especially with the federal Law Reform Commission’s working paper on sexual offences only weeks away from delivery. With a general election in sight, the timing is not inopportune.
Whatever the motive, there is wide consensus on the bill’s inadequacy. Ottawa has given a yank at the weed, but left the root intact. The women’s groups believe that changing the law sooner or later changes public opinion. That remains to be seen; rape may be the law’s palindrome: whatever way it’s read, it comes out the same. For the moment, the pastel T-shirts have more impact. No Means No: there’s no mistaking what that says. MICHAEL POSNER
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