Our sexual assault confusion
‘It hought to be assaulted you had to be broken and raped,” explained the first complainant in the Ghomeshi trial, when asked why she hadn’t come forward sooner with her sexual assault allegations.
A great number of Canadians appear to harbour this misconception, and others, about our sexual assault laws.
According to two Statistics Canada data sets, there were 21,000 incidents of sexual assault reported to police in 2014, while 633,000 Canadians selfidentified as being victims of sexual assault that same year, either reported or unreported. The reason given by 43 per cent of survey respondents for not reporting an assault was that “Police wouldn’t have considered t he i ncident i mportant enough.”
There may be other reasons why some of these self- identified victims chose not to report. But if we accept these figures as being broadly accurate, they are astonishing. To put them in context, in 2014, roughly 360,000 criminal cases were resolved in Canada’s courts. If all 633,000 self- identified victims were to report, the number of sexual assault cases would outnumber all other criminal cases two to one.
The high incident and low reporting rates may suggest that many Canadians — both women and men — are ignorant about what constitutes sexual assault in Canada, when to report it, and what level of communication is warranted to ensure sexual relations are consensual.
Some measure of ignorance about our sexual assault laws is understandable. Canada’s sexual assault laws have evolved considerably over the past 30 years, and are complex. There’s also not a great deal of public education about them.
Until 1983, Canada had limited sex offences on its books. There was the offence of rape, and the offence of an indecent act. In 1983, these two offences were replaced with the offence of sexual assault, which prohibits any form of sexual touching to which a person has not consented.
A person can consent to sexual activity through words or conduct, and can withdraw consent at any time. Whether a person consented is determined solely by reference to that person’s state of mind at the time the touching occurred. If a court accepts a person’s claim that she or he did not consent, consent was not given, period.
A person accused of sexual assault cannot claim consent was implied, the Supreme Court of Canada held in 1999, but can claim that he or she mistakenly believed a complainant had consented. To succeed in making out this defence, an accused must establish that objectively reasonable steps were taken to verify consent had been given. This defence is not available to someone who was intoxicated, or who acted in a reckless or wilfully blind way.
Complex, indeed. While most people would be morally and legally attuned to the need to obtain consent, it’s still possible to be ignorant about the specifics of these laws.
Canada’s educational institutions would be a natural place to increase understanding of these laws, not least because school populations are the most vulnerable to abuse. According to Statistics Canada, sexual assault rates are twice as high for 15 to 24 year olds as for 25 to 34 year olds, and are vastly higher than for people over 35. While the provinces already have fairly robust and broadly uniform sex- education curricula in place, there’s room for improvement.
For one, sexual assault is uniformly a minuscule part of the overall health curriculum, according to Alex McKay, the executive director of The Sex Information and Education Council of Canada. It should be “a priority for sexual health education to make sure that young people have as clear as possible an understanding of what the legal definition of consent to sexual activity is,” he added.
A 2007 study by the Joint Consortium f or School Health also i dentified a provincial trend of ceasing sex-education around Grade 9, even though students are most sexually active in grades 10 to 12. The report recommended that sex- edu- cation be extended into senior grades.
And Canada’s universities have been broadly criticized for lacking policies or services to deal with sexual assault. According to the Canadian Institutes of Health Research, the majority of universities rely primarily on the provision of informational brochures, even though a recent CIHR- funded pilot project found that brochures were significantly less effective than educational programs at reducing sexual assault rates.
Of course, more education would not be an elixir for a widespread problem. Some couples would still come away with different perspectives on the same event. Some victims would still not report incidents even if they fully understood them to be criminal. Some people would still engage in intolerable behaviour they knew to be illegal.
The numbers above are so high, and so far afield of general crime statistics, that we should be investigating whether women and men understand our sexual assault laws and the need for giving and getting consent, and working to lift this veil of ignorance where it exists.
CANADIANS, MEN AND WOMEN, NEED BETTER EDUCATION ABOUT WHAT OUR CRIMINAL CODE ACTUALLY SAYS.