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Sexual Assault in Canada

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Elizabeth A. Sheehy

Part II

27. Confronting Restorative Justice in Neo-Liberal Times: Legal and Rape Narratives in Conditional Sentencing

Gillian Balfour et Janice Du Mont

Résumé

Gillian Balfour and Janice Du Mont investigate one criminal justice response to perpetrators of sexual assault already problematized by Holly Johnson: the use of conditional imprisonment — or house arrest — for those few men who become convicted offenders. The authors are careful to disavow any claim that prison works or that such restorative measures should be eschewed entirely, but they argue that these decisions ordering house arrest reproduce the rape narratives discussed by Susan Ehrlich earlier in this volume. Gillian and Janice show how women are rendered invisible in these cases, even when they have submitted victim impact statements, and how they are assigned blame for their own rapes through the rationalization of the sentence. Their analysis of the decisions reveals how, through house arrest, the state reallocates the responsibility for policing and protection to individuals, much like the deployment of “police warnings” that assign women the impossible task of protecting themselves from rape, as discussed in the chapters by Lise Gotell and Meagan Johnston in Part I

Texte intégral

  • 1 R v Tulk, [2000] OJ No 4315 (Ct Just).
  • 2 Ibid at para 13.

1In the sentencing decision of R v Tulk,1 a sixty-year-old white male was convicted of a serious sexual assault of a female acquaintance who was in a comatose state due to diabetic shock. He received a conditional sentence of two years less a day as part of a restorative justice sentencing practice that allows offenders to serve their prison sentences in the community subject to various conditions. Although we glean little from this sentencing decision as to the impact of the “highly intrusive assault”2 upon the victim, we are told that the perpetrator was divorced, had four children, lived with his mother, and had a good employment record, no debts, and no problems with drugs or alcohol. However, the perpetrator also showed no remorse or guilt over his conduct, asserting that the victim consented to sex despite her medical condition. In the sentencing transcript, Paris J of the Ontario Court of Justice stated:

  • 3 Ibid at para 14.

The conduct of the accused was more opportunistic than calculated; he did not plan the meeting, he did not stalk the victim, he did not contribute to her incapacity … this event took place because of an unfortunate coincidence and a terrible lack of judgment. The accused used a condom probably to protect himself, but it also protected the victim from the risk of pregnancy and disease.3

  • 4 Ibid at para 15.

2Through a feminist lens, the legal and rape narratives in this case reveal how rape myths continue to be enabled through the practice of law. Despite decades of feminist inspired criminal law reforms intended to denounce sexual assault as a serious crime, rape myths remain ubiquitous in the strategies of lawyers. The legal narrative in this sentencing decision decries the perpetrator’s lack of remorse as “the result of poor insight as opposed to moral turpitude … His testimony confirms his lack of sophistication.”4 The rape narrative too casts the perpetrator as a reasonable man: he did not stalk and overpower his victim. Rather, he was chivalrous in his use of a condom to protect her from disease and pregnancy.

  • 5 Karen Busby, “Third Party Record Cases since R v O’Connor” (2000) 27 Man LJ 355; Karen Busby, “‘No (...)

3While much feminist engagement with law as both legislation and practice has focused on the rape trial,5 in 2006, Statistics Canada released “Measuring Violence Against Women” as part of their annual Statistical Trends series. The report shows “conditional sentences were used in sexual assault cases more often than in cases of other violent crimes.” Therefore, we would argue that the ways in which conditional sentences are justified in sexual assault cases should be of concern to feminist socio-legal scholars and anti-violence activists. Reasons given for conditional sentences in rape cases cast light on a new frontier of feminist engagement with the criminal justice system: do rape myths operate in the legal narratives of restorative justice sentencing practices? Does restorative justice signal the retrenchment of mythologies of the woman who has been raped, the rapist, and the act of rape? The implications of conditional sentencing as a restorative justice practice should be of particular importance to feminists.

  • 6 Janice Du Mont, Tania Forte & Robin F Badgley, “Does the Punishment Fit the Crime?” (2008) 27 Med (...)
  • 7 Adrianna McCutheon-Ciccone, “Adult Criminal Court Statistics 2002/03” (2003) 23:10 Juristat; Janic (...)

4The sentencing decision in Tulk was part of a larger quantitative sentencing study of 221 men convicted of sexually assaulting adult women between 1993 and 2001.6 It was reported in this study that almost half of the perpetrators received a sentence of two years less a day. Researchers found that longer sentences were imposed on those sexual assaults that conformed to the conventional notion of rape (stranger perpetrated, weapons, vaginal, or anal penetration). Their findings echoed earlier sexual assault sentencing studies.7 They also uncovered a small subsample of thirteen sentencing decisions in which perpetrators received a prison sentence to be served in the community, despite the seriousness of the offence and multiple aggravating factors, including the perpetrator’s lack of remorse.

5The present study seeks to unravel the legal and rape narratives of those thirteen judgments. Although a small sample, we suggest that these decisions signify the need for feminist engagement with sentencing law reforms that appear to be progressive in their constraint of the state’s use of imprisonment, yet may be regressive when addressing gendered violence. In this regard, restorative justice sentencing practices may be the thin edge of a wedge that undermines, in part, the legacy of feminist inspired legal reforms aimed at denouncing sexual violence and securing the safety of women. Our concern lies in the possibility that rape myths have become enmeshed with the restorative justice ethos. In what follows, we first outline the contested terrain of Canadian sexual assault law reforms (Bills C-127, C-49, C-46) and the emergence in 1996 of restorative justice sentencing principles designed to limit the use of imprisonment. Finally, we present and discuss the findings of our analysis of the legal and rape narratives in these thirteen conditional sentencing decisions and suggest directions for future feminist research.

RAPE LAW REFORM IN CANADA 1983–1992: KEY MOMENTS OF FEMINIST INSURGENCY AND ANTI-FEMINIST BACKLASH

  • 8 Holly Johnson & Vincent F Sacco, “Researching Violence Against Women: Statistics Canada’s National (...)
  • 9 Canadian Panel on Violence Against Women, Changing the Landscape: Ending Violence — Achieving Equa (...)
  • 10 Martha R Burt, “Cultural Myths and Supports for Rape” (1980) 38 J Personality & Soc Psychol 217.
  • 11 Martha R Burt & Rochelle Semmel Albin, “Rape Myths, Rape Definitions, and Probability of Convictio (...)
  • 12 Smart, supra note 5 at 35
  • 13 Comack & Balfour, supra note 5 at 111.

6Second wave feminisms throughout most Western democracies focused on, among other things, expanding the state’s social and penal responses to sexual violence. In Canada, initiatives included provision of core funding for rape crisis centres, commissioning the largest-ever national telephone survey on violence against women,8 and the creation of the Canadian Panel on Violence Against Women (1993).9 In the legal context, feminist lawyers, scholars, and activists argued that institutional responses by the state to sexual violence had been framed by rape mythologies drawn from a wider patriarchal culture. Defined as “prejudicial, stereotyped, or false beliefs about rape, rape victims, and rapists,”10 rape myths and their effects upon the rape trial and wider public attitudes towards women who have been raped have been well documented by feminist anti-violence researchers and activists.11 Criminal trials, it has been argued, can become “pornographic vignettes” and a “celebration of phallocentrism”12 through the deployment of rape myths such as “yes to one then yes to all”; “no means maybe”; “a woman who resists cannot be raped”; “women enjoy rough sex”; “rape is a sexual act that results from a woman arousing a man”; and “rape doesn’t hurt anyone.”13

7In Canada, one of the first sites of feminist engagement with criminal law to constrain the influence of rape myths was the passing of Bill C-127 in 1983. The outcome was the repeal of the Criminal Code category of rape and the creation of three new categories for the offence of assault, the formal repeal of the corroboration requirement (physical evidence or third-party testimony) and the doctrine of recent complaint, and the addition of limits on the ability of defence lawyers to ask questions about the sexual history of the complainant, which became referred to as the “rape shield provision.”

  • 14 R v Seaboyer, [1991] 2 SCR 577.
  • 15 Bill C-49, An Act to Amend the Criminal Code (prohibiting the admission of sexual history evidence (...)
  • 16 Gotell, supra note 5.
  • 17 R v O’Connor, [1995] 4 SCR 411. The majority of the Court ruled that sections 7 and 11(d) of the Ch (...)
  • 18 Bill C-46, An Act to amend the Criminal Code (production of records in sexual offence proceedings)(...)
  • 19 R v Mills, [1999] 3 SCR 688.

8In 1992, the Supreme Court of Canada ruled that the rape shield provision violated constitutional legal rights of the accused, and was thus unconstitutional.14 In response, Parliament passed Bill C-49, which codified rape shield provisions that met the Court’s demand for judicial discretion with regards to consideration of evidence of the complainant’s sexual history.15 In addition, Bill C-49 codified a legal definition of consent along with the reasonable steps to be taken to ascertain consent to sex. Subsequently, defence lawyers continued to challenge the constitutionality of the revised rape shield statute, oftentimes doing an “end run” around restrictions on sexual history evidence by using third-party and confidential records of therapists or counsellors.16 In R v O’Connor,17 the Supreme Court of Canada held that the accused’s inviolable right to a fair trial enabled defence counsel to request access to a wide swath of personal and confidential documents about the complainant. In the wake of the Court’s decision in R v O’Connor, in 1997, the Canadian government enacted Bill C-46 to further constrain disclosure requests and to ensure closer scrutiny of documents sought by the defence for the purposes of discrediting the Crown’s case against the accused.18 In 1999, the constitutionality of the limits on defence access to third-party records was again challenged in R v Mills.19 The Supreme Court of Canada upheld the constitutionality of the process set out in Bill C-46 with regards to determining the probative value of third-party records.

  • 20 Laureen Snider, “Making Change in Neo-Liberal Times” in Gillian Balfour & Elizabeth Comack, eds, C (...)
  • 21 Gotell, “Tracking Decisions on Access to Sexual Assault Complainants’ Confidential Records,” supra(...)

9While these legislative reforms marked the formal recognition of certain feminist organizations as legitimate authorities and “authorized knowers,”20 Lise Gotell21 has argued in her study of third-party records disclosure in sexual assault decisions that, defence lawyers use such evidence for its “non-sexual features,” such as inconsistent testimony or a pattern of fabrication by the complainant, thus retrenching rape myths of raped women as liars, mentally unstable, or hysterical.

  • 22 R v Ewanchuk, [1999] 1 SCR 330, reversing (1998) 57 AR 235.
  • 23 Ibid at para 69.

10Also in 1999, anti-feminist backlash in the form of regressive judicial activism reappeared with a vengeance in R v Ewanchuk22 where the Alberta Court of Appeal held that the perpetrator was entitled to the defence of implied consent — although no such defence existed in law — because of the young complainant’s dress and conduct during a job interview. The Supreme Court of Canada overturned the acquittal of the accused, and threw out the defence of implied consent. Justices L’Heureux-Dubé and Gonthier also articulated in the decision a feminist analysis of “[v]iolence against women,” characterized as much as a matter of equality as it is an offence against human dignity and violation of human rights.”23

  • 24 Wendy Brown, Edgework: Critical Essays on Knowledge and Politics (Princeton: Princeton University (...)

11As this discussion has shown, the feminist challenge to the use of rape myths in the practice of law and judicial decision-making has been a hard fought battle, with both successes and setbacks. But little is known however, of the role of rape myths in the sentencing of men convicted of sexual assault, especially in the context of emerging noncustodial practices, such as conditional sentences. We are concerned with how insidious rape myths intersect with ostensibly progressive sentencing reforms. We suggest that conditional sentences represent a new sphere of contestation for feminists to challenge the retrenchment of rape myths in the practice of law. This anti-feminist juridical space has opened up in part because of the socio-political context of neo-liberal social policy and law reforms that reflect a prudent approach to risk management generated from actuarial logics rather than an ethic of care and social responsibility.24

  • 25 Dorothy Chunn & Shelley Gavigan, “Welfare Law, Welfare Fraud, and the Moral Regulation of the Neve (...)
  • 26 Elizabeth Comack and Tracey Peter, “How the Criminal Justice System Responds to Sexual Assault Sur (...)
  • 27 Karen Busby, “Discriminatory Uses of Personal Records in Sexual Violence Cases” (1997) 9 CJWL 258.
  • 28 Gotell, “The Discursive Disappearance of Sexual Violence,” supra note 5.

12As neo-liberalism has dismantled the state’s responsibility for the well-being of its citizens,25 including federal policy advisory committees and publicly funded national women’s organizations, feminist advocacy resources are under siege by neo-liberalism, and violence against women is receding from the political landscape. Some feminist socio-legal scholars have begun to map neo-liberal rape mythologies in law wherein women are held responsible for managing their own risk when the state chooses not to prosecute,26 and when judges refuse to protect a complainant’s right to equality.27 Does this “neo-liberal sexual citizenship” identified by Lise Gotell28 resonate within restorative justice sentencing practices? In what follows, we examine the principles behind the sweeping sentencing reforms introduced in Canada 1996, and query their impact on reasons for conditional sentences in sexual assault cases.

SENTENCING REFORMS: AT THE NEXUS OF RETRIBUTIVE AND RESTORATIVE JUSTICE

  • 29 R v Tulk, supra note 1 at para 17.

[T]his is one of these rare occasions in cases of this nature where restorative objectives and objectives of denunciation, and deterrence can be achieved by a conditional sentence.29

  • 30 Michael Tonry, Sentencing Matters (New York: Oxford University Press, 1996); Andrew Ashworth, Andr (...)
  • 31 Anthony Doob, “Transforming the Punishment Environment: Understanding Public Views of What Should (...)
  • 32 Anthony Doob & Jane Sprott, “Fear, Victimization, and Attitudes to Sentencing, the Courts, and the (...)
  • 33 Canadian Committee on Corrections, Towards Unity: Criminal Justice and Corrections (Ottawa: Queen’ (...)
  • 34 David Daubney, Taking Responsibility: Report of the Standing Committee on Justice and Solicitor Ge (...)

13The purpose of punishment remains a highly contested juridical and public issue.30 Anthony Doob has stated, “Canada does not have a sensible and defensible sentencing policy.”31 In fact, public opinion survey data shows that most Canadians expect sentencing to accomplish everything from incapacitation and offender reintegration to denunciation, rehabilitation, and deterrence.32 Since 1969, the Canadian government has issued reports and convened sentencing commissions to advise Parliament on sentencing principles.33 In 1987, the Canadian Sentencing Commission called for a sentencing framework based on a series of principles that sought proportionality and restraint in the use of imprisonment. In 1988, the Daubney Committee authored a report calling for sentencing principles that reflected restorative objectives explicitly to acknowledge harm done to victims and the community, facilitate victim/offender reconciliation, provide offenders with opportunities for rehabilitation and, if necessary, denounce and incapacitate the offender.34

  • 35 Bill C-41, An Act to amend the Criminal Code (sentencing) and other Acts in consequence thereof, S (...)
  • 36 David Daubney & Gordon Perry, “An Overview of Bill C-41 (The Sentencing Reform Act)” in Julian V R (...)

14In 1996, the government of Canada enacted a statement of purpose and principles as part of Bill C-41.35 A stated key objective in the passing of Bill C-41 was to introduce a restorative justice paradigm to the practice of sentencing that balances objectives of denunciation with reparation to victims and communities.36 To this end, section 718.2 of the bill also set out sentencing principles to ensure that:

(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and
(e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

  • 37 Bill C-41; An Act to Amend the Criminal Code (Sentencing), SC 1995, c 22.

15Bill C-41 also contained a new sentencing provision permitting “conditional sentences of imprisonment,”37 a term of imprisonment to be served in the community for those offenders who would otherwise be sentenced to a term of custody of less than two years. In order to render a conditional sentence, judges must be satisfied that a term of imprisonment of less than two years is warranted, based on the seriousness of the offence and the moral blameworthiness of the offender. Judges then have the discretion to rule that the prison sentence is to be served in the community under conditions such as house arrest, curfews, treatment orders, and/or community service orders.

  • 38 R v Gladue, [1999] 1 SCR 443; R v Wells, [2000] SCR 780.
  • 39 Wells, ibid.

16Subsequent to the passing of Bill C-41, provincial courts grappled with how to interpret the new legislation. Some of the perplexing issues include whether sentencing emphasizes retributive or restorative justice. What is the difference between a conditional sentence and probation? Should serious personal injury offences be considered for a conditional sentence? Are judges compelled to hand down a conditional sentence in all cases where the sentence is less than two years? The Supreme Court of Canada was asked to interpret section 742.1 of the Criminal Code to clarify these matters raised in the lower courts. Broadly speaking, the Court held that conditional sentences can be considered in any case where a prison sentence of less than two years is appropriate.38 Thus serious personal injury offences were not necessarily excluded from section 742.1. For example, in R v Wells, an Aboriginal man convicted of sexual assault received a sentence of twenty months to be served in the community because, as an Aboriginal offender, he is entitled to judicial notice of systemic or background factors that contributed to the difficulties faced by Aboriginal people.39 As well, pre-sentence reports indicated community support and resources for the offender in the community.

  • 40 Marie Gannon & Jodi-Anne Brzozowski, “Sentencing in cases of family violence” in Jodi-Anne Brzozow (...)
  • 41 Statistics Canada, Measuring Violence Against Women: Statistical Trends (Ottawa: Canadian Centre f (...)

17Data suggest an increased use of conditional sentences in cases of sexual assault. Statistics Canada reported that for the year 2003–04, conditional sentences were handed down in 17 percent of all sexual assault convictions; most received a sentence of probation.40 However, in a later study, conditional sentences were more likely to be handed down in sexual assault cases amongst all violent crime categories.41

18We set out to interrogate the legal and rape narratives of conditional sentencing decisions to discern whether section 742.1 is the thin edge of a wedge that threatens to undermine feminist inspired law reforms. Decades of feminist legal activism successfully challenged pernicious lawyering strategies that exploit women’s sexual histories and their confidential counselling records. As we have outlined above, such backlash against feminist legal victories revealed the sexism embedded in Canadian jurisprudence. In this study, we consider whether restorative justice in the context of neoliberalism is another possible site of anti-feminist backlash.

THE STUDY AND METHODOLOGY

  • 42 Gotell, “The Discursive Disappearance of Sexual Violence” and Tracking Decisions on Access to Sexu (...)
  • 43 Linda Coates, “Causal Attributions in Sexual Assault Trial Judgments” (1997) 16 J Lang & Soc Psych (...)
  • 44 Dianne Crocker, “Regulating Intimacy: Judicial Discourses in Cases of Wife Assault (1970–2000)” (2 (...)
  • 45 Clare Connelly, “Prosecution of Rape and Sexual Assault” (2002) 28:15 J Family Planning & Reproduc (...)
  • 46 Susan MacDonald & Andrea Wobick, “Bill C-46: Records Applications Post-Mills, A Caselaw Review” (2 (...)

19The purpose of the current study was to examine whether conditional sentencing — as a practice of restorative justice — is enabled by rape myths, specifically in terms of the law’s treatment of the raped woman, the context and impact of the rape, and the conduct of the rapist. The thirteen cases we discuss were taken from a larger data set of 136 reported sentencing decisions in sexual assault cases involving female adolescents and adults (fourteen years and older) heard in Ontario, between 1 January 1996 (following the enactment of Bill C-41) and 31 December 2001. These decisions were retrieved from Quicklaw, Canada’s online legal research service that provided access to 2,500 searchable databases of full-text reported sentencing judgments for all provinces and territories. Quicklaw has been used by many social scientists in their studies of law’s treatment of gendered violence,42 including sexual assault against children43 and domestic violence;44 the role of expert witnesses in historical sexual assaults;45 and the study of the impact of key court decisions upon sexual assault trials.46

  • 47 Gotell, “The Discursive Disappearance of Sexual Violence,” supra note 5; Comack & Peter, supra not (...)

20The thirteen conditional sentencing decisions were analyzed quantitatively to discern offence, offender, and legal characteristics of each case. Following this, open coding was used to thematically analyze the text of each decision in order to explore both the legal and rape narratives in the context of restorative justice sentencing. With respect to observations made by other feminist scholars concerning the ways that rape myths have shifted in accordance with the expansion of neoliberalism,47 it was our aim to determine whether these erroneous beliefs appeared to play a role in framing the strategies of lawyers and judges in sentencing processes. If so, what particular rape narratives are told in the context of restorative justice? To this end, we extracted legal narratives (reasons for the conditional sentence that refer to sentencing principles of denunciation, deterrence, retribution, and reparation for harm caused) and rape narratives (reasons for the conditional sentence that refer to cultural scripts about the raped woman, the convicted rapist, and the crime of rape). Narratives that contradicted our assertion about the place of rape myths in conditional sentencing practices were also identified and are discussed.

FINDINGS

Case Characteristics

21In all thirteen cases, the perpetrator was known to the woman. Of these, five were an intimate partner or ex-partner. Four of the perpetrators had a history of substance abuse, and a previous criminal record. Five of the offenders were noted to have a history of mental illness. Women were penetrated in eleven cases, and forced or coerced in twelve of the assaults. A weapon was used or threatened in two assaults, and the woman was injured in three. With respect to aggravating factors, helplessness of the woman was cited in six cases, seriousness of the offence in five of cases, abuse of position of trust/authority in four, lack of remorse in four, and abuse of a spouse or child in three of the cases. In almost half of the offences, there were three or more aggravating factors cited by the sentencing judge.

Emergent Legal and Rape Narratives

  • 48 Busby, supra note 5.

22In what follows we discuss four themes that appear to support our contention that conventional rape myths that render women as liars or temptresses48 seeking vengeance intersect with neoliberal sensibilities of rape. We explore the representation of women’s experiences in legal narratives and how, through these representations, raped women are “responsibilized” for the traumatic impact of the assault. We also suggest legal narratives portray men convicted of rape as easily governed in the community through therapeutic management because their conduct is understood as the result of diagnosed sexual deviance disorders or poor cognitive capacity.

(i) Locating the Woman

  • 49 “All That Glitters is Not Gold: The False Promise of Victim Impact Statements,” Chapter 26 in this (...)
  • 50 Ruparelia, ibid.

23Throughout most of the cases, we were struck by the invisibility of the raped woman in the legal narrative. Under section 718.1 of the Criminal Code, judges are expected to take into account several — often contradictory — sentencing objectives such as reparation for and acknowledgement of harm to the victim and community, as well as rehabilitation, denunciation, and deterrence through incapacitation of the offender when necessary, and rehabilitation. In this regard, judges may take into account victim impact statements and pre-sentence reports, if these are available. Yet, while we expected to find narratives of women’s experiences of harm in our data, we found instead that, as noted by Rakhi Ruparelia,49 victim impact statements have a limited and sometimes troubling place in sexual assault sentencing decisions. Victim impact statements are subject to judicial review and may be edited or disregarded if the content is deemed to be “fueled by a need for vengeance,”50 portrays the accused in a negative way, or demands a specific sentence be handed down.

  • 51 R v SR, [1998] OJ No 1439 at para 14 (Ct Just Prov Div).
  • 52 Ibid at para 14.
  • 53 Ibid at para 25.
  • 54 Ibid at para 26.
  • 55 Ibid at para 35.

24In this study, we found that judges frequently explicitly rejected the woman’s statement, despite the seriousness of the assaults. In R v SR51 (case 55), the perpetrator was convicted of multiple offences against his ex-girlfriend, including sexual assault with a weapon and forcible confinement (punishable up to a maximum of fourteen years in prison). Referring to the facts of this case, the presiding judge declared them to be “[r]epulsive, and terrifying … the degree of violence, actual and threatened [could not] be dismissed out of hand.”52 At the same time, the judge’s insistence that “the court is not bound by the wishes of the complainant”53 reveals the judicial disregard for the victim’s experience and fear of the perpetrator. This judge went on to cite case law, asserting that “the courts should exercise restraint in placing undue influence on the victim impact statement.”54 Ultimately, the seriousness of the assault in R v SR was overshadowed by the perpetrator’s remorse and his willingness to seek therapy, through which, the judge explained, “[he] must be given full credit for his efforts to address his difficulties.”55

  • 56 R v TS, [1996] OJ No 3761 (Ct Just Prov Div).
  • 57 Ibid at para 28.

25In another case of intimate partner violence, R v TS56 (case 78) we see a contradictory legal narrative with regards to the victim impact statement. In this case, the perpetrator was convicted of aggravated sexual assault against his wife of thirty years. When confronted by his daughters who tried to stop the assault of their mother, the offender also threatened to kill them and the rest of the family with a butcher knife. Despite the principles of sentencing that recognize breach of trust by the perpetrator as an aggravating factor, and the judge’s assertion that “this was a rape, and a rape which occurred within a breach of trust, [which] is very, very serious,”57 the offender was sentenced to a six-month conditional sentence. The rationale given by the judge in this case was that the victim (the offender’s wife) stated in her victim impact statement that she did not want her husband incarcerated. The judge in this case reconstituted the victim’s statement as meaning she did not fear her husband’s reprisal in the community. In a bizarre twist, the judge asserted that the victim in this case was responsible for her own safety as she was instructed to contact her husband’s probation officer if the perpetrator appeared drunk or was threatening towards her:

  • 58 Ibid at para 17.

In light of the position taken by his wife in the Victim Impact Statement, she can always go to the probation officer or the conditional sentence supervisor, and ask that a variation be sought.58

26The sentencing judge expressed concern for the well-being of the perpetrator, as well as his perceived vulnerability to possible revenge by his wife:

  • 59 Ibid at para 21.

If the revocation of the conditional sentence is in the hands of the family, then we wind up in a situation where he suffers the anxiety that for any reason they may choose to send him back to jail, should they revoke without good reason. [emphasis added]59

27While the judge in this case appeared to be respecting the wishes of the victim by not incarcerating the perpetrator and handing down a conditional sentence, he did so reticently, worrying that the woman would seek vengeance by falsely or unfairly turning him in. We suspect that if a victim of a robbery asked that the offender not be imprisoned, the judge would reject that request and call for denunciation and public safety through incapacitation.

  • 60 R v Kakepetum, [2001] OJ No 1511 (Ct Just).

28In contrast, in cases involving Aboriginal offenders, the narrative of the woman holds a decidedly different place in the sentencing process. It is true that only two of the thirteen cases we examined involved Aboriginal men convicted of sexual assault. Even so, the legal narratives were much different than those found in the sentencing of non-Aboriginal offenders. In R v Kakepetum60 (case 4), the offender was from an isolated reserve community in Northern Ontario and had sexually assaulted two young girls as they slept. While on bail awaiting trial, he completed a treatment program, secured a full time job, abstained from drugs and alcohol, and expressed profound remorse for his actions. What is remarkable about this case is that the girls and community were consulted in the sentencing process in accordance with the principles of restorative justice. The Elders of the community requested that the offender reside in a different community out of respect for the girls and to denounce his behaviour. In this context, the restorative justice model appeared to be linked to the needs of the young women.

29The decision of the sentencing judge contrasted with those other decisions we examined with respect to the way he challenged the use of imprisonment in sexual assault cases. In his judgment he stated:

  • 61 Ibid at para 9.

A substantial jail sentence would provide a powerful disincentive for men to come forward to acknowledge their sexual offending behaviour. Considering how widespread a problem that is in so many of our northern communities, it is my view that it is far more important to create an environment where men are encouraged to come forward and take responsibility for what they have done…. It would be bad public policy to be zealous about imposing a harsh sentence on this man if the net result is that we bury so many other cases.61

  • 62 R v BK, [2000] OJ No 2708 (Sup Ct Just).

30In another case involving an Aboriginal man, R v BK,62 the perpetrator pled guilty to sexually assaulting his former girlfriend. As in the previous case, the offender, the woman, and their families participated in a “community accountability conference.” This restorative circle process required that he publicly acknowledge his responsibility as well as meet certain conditions agreed upon by the community. These included a six-month conditional sentence with extensive conditions and two years on probation:

  • 63 Ibid at para 6.

The process resulted in agreement on the part of BK to complete … a series of undertakings which address his rehabilitation and which include attempts to raise awareness within the community of the spectre of sexual abuse and to enhance the respect for the safety and integrity of women in the community.63

31Thus, the legal narratives in sexual assault cases of these two Aboriginal offenders and the women or girls they assaulted countered the invisibility of victims in the sentencing of non-Aboriginal men. In contrast, the legal narratives of cases involving non-Aboriginal offenders seem to reflect a neoliberal sensibility of the responsibilized “victim” who must manage her own endangerment. It is this narrative that we examine next.

(ii) Damaged but Responsible

  • 64 R v Corcoran, [1999] OJ No 5165 (Sup Ct Just).

32In R v Corcoran64 (case 151), the judge handed down a conditional sentence in a case of sexual assault involving good friends attending a party with college students. The judge noted that the woman had been very drunk the night of the attack, and had flirted with the perpetrator and another male friend throughout the evening. The offender in this case pled not guilty and refused to express any remorse for what had happened. Moreover, the woman underwent a withering cross-examination over her conduct on the night she was raped. Despite the perpetrator’s lack of remorse, the judge stated in his decision that both the offender and the woman were blameworthy:

  • 65 Ibid at para 28.

[the offender] and KH themselves [were] to blame, that what took place that night would not have taken place if they had not been drinking and had not used marijuana in the early hours of the morning. It [was a] disastrous circumstance for [the perpetrator]. [He was] tainted for life having been found guilty of sexual assault. Ms KH [had] been emotionally damaged as a result.65

  • 66 Busby, supra note 27.

33While the devastating impact of rape was noted by the judge, the woman was clearly responsibilized for the rape as she did not exercise proper restraint or caution while attending a social gathering with friends. Women have been long cast as responsible for their victimization because of their conduct and dress, and as lustful liars who deceive the courts as to their consent to sex.66 But these conventional rape mythologies rest upon an explicitly gendered and sexist subjectivity, whereas in a neoliberal context, raped women are “victims” without gender or social location. Rather, they are responsibilized individuals who failed to practice appropriate self-restraint. In this way, we see the spectre of a neoliberal subjectivity in legal narratives.

  • 67 R v Pecoskie, [2000] OJ No 1421 (Sup Ct Just).

34Similar legal and rape narratives of the woman’s responsibility appear in R v Pecoskie67 (case 182). Here, a business owner sexually assaulted a younger staff person who was comatose from alcohol intoxication after a company dinner party. The perpetrator steadfastly asserted that the woman had consented to sex, and was simply “giddy and light headed.” In this case, the woman comes clearly into view. Her victim impact statement had outlined significant personal trauma as a result of the rape, and the Crown called for a three-year term of incarceration, primarily because the offender was in a position of trust in relation to the complainant. The sentencing judge, however, disagreed with the Crown and instead evoked mythical notions of the perpetrator as gentlemanly and courteous, thereby diminishing the seriousness of the rape:

  • 68 Ibid at para 12.

[The offender] did not abuse a position of authority in relation to the victim … [He] did not extol his conquest to others after the assault … [He] did not brag about [having sex with the victim] and he did not speak disrespectfully of the victim.68

35While the woman was profoundly traumatized by a violent rape, she was nonetheless viewed as less deserving of the court’s sympathy:

  • 69 Ibid at para 4.

Through the victim impact statement, the complainant stated the event has had a traumatic effect on her life. She has suffered a loss of confidence, low self-esteem, a sense of shame, anger and distrust towards men, impatience with others, and less interest in sex than previously. She has suffered financially, including the loss of her automobile although her evidence at trial indicated a prior existing precarious financial situation. She had missed several car payments before the offence.69

36In this way we glimpse the intersection of rape myths and neoliberalism; we are shown a rapist narrative of a perpetrator who is deemed undeserving of incarceration through the evocation of class and gender subjectivities of the breadwinner husband and father. Meanwhile, she is irresponsible and blameworthy.

(iii) Minimizing and Managing the Risk

  • 70 Kelly Hannah-Moffat, “Criminality, Need, and the Transformative Risk Subject: Hybridization of Ris (...)
  • 71 Kelly Hannah-Moffat, “Criminality, Need, and the Transformative Risk Subject,” ibid at 30.
  • 72 Kelly Hannah-Moffat, “Moral Agent or Actuarial Risk Subject,” supra note 66.

37Legal narratives in several cases invoked therapy as a condition of sentencing. Therapy functions as a key means of discipline by reframing the purpose of sentencing from denunciation and reparation to managerialism. It is a neoliberal strategy that draws upon actuarial techniques of quantifying and assessing the “risk” offenders pose to the community.70 In this way, “crime is a calculable, avoidable, and governable risk; and criminals are characterized as a risky population to be efficiently and prudently managed.”71 Thus, any threats to public safety posed by the conditional sentencing of a sex offender can be managed through the use of various rationalities, such as curfews, house arrest, and therapy. However, as Kelly Hannah-Moffat suggests, managerialism is not only steeped in objective categories of measurable risk: it is also gendered and class-based.72

  • 73 R v Markham, [1998] OJ No 5957 (Ct Just Gen Div).

38For example, in R v Markham73 (case 43), a medical doctor, with earlier convictions for sexual assault charges against nurses at other hospitals, was convicted of sexual assault and unlawful confinement against an intern under his supervision in the hospital in which he worked at the time. In this case, the sentencing judge asserted:

  • 74 Ibid at para 23.

In my view the offences of which [the perpetrator] is convicted are sufficiently serious and sufficiently aggravated by his violence and blatant abuse of his position of trust and authority …. [H]is conduct in the circumstances of this case was a betrayal of his responsibilities as a man and as a physician.74

  • 75 Ibid at para 31.

39Nonetheless, the offender in this case was handed an eighteen-month conditional sentence. This, despite his refusal to take responsibility for the charges in this case. The judge accepted the offender to be a manageable risk to society for several reasons. First, the perpetrator had sought out therapeutic help and was under psychiatric care for various mental health problems, such as “frotteurisme or touching without consent for sexual purpose”;75 second, he subsequently secured further professional employment as a physician (despite this being the context of all of his assaults); and third, he was making child support payments to his ex-wife.

40The legal narratives presented in R v Markham accomplish a reframing of sexual violence that erases the woman’s experience of rape in her workplace and the abuse of authority as an aggravating factor. Rather than taking up the sentencing objectives of reparation of harm to the woman and denunciation that realizes the impact of sexual violence, this case reveals how the gender sensibilities of hetero-masculinity and professional breadwinner are engaged to reposition rape as a psychiatric condition that can be properly managed through treatment.

41In R v Pecoskie, discussed above, the neoliberal qualities of the successful citizen (eg, business owner, breadwinner husband) were similarly used to justify the use of a conditional sentence with house arrest. The status of the perpetrator as the woman’s employer was negated, or apparently irrelevant, to the determination of the seriousness of the offence and the appropriate sentence. Yet, his status as a business owner was brought back into view as a mitigating factor when the sentencing judge deemed him to be deserving of a conditional sentence. The judge stated that:

  • 76 Pecoskie, supra note 67 at para 6.

[H]e and his wife run their business out of their home. They employ two or three administrative people and up to fifteen part-time help in a packaging and shipping warehouse. Although the business has supported the family adequately in the past, [he] said it is on the verge of doing much better in the near future.76

  • 77 R v Guthrie, [1999] OJ No 4566 (Ct Just Gen Div).
  • 78 Ibid at para 28.

42In another case, R v Guthrie77 (case 149), a man was convicted of sexually assaulting his girlfriend. Throughout the rape narrative invoked in this case, judicial notice was taken of the past sexual relationship between the perpetrator and the woman, as well as the drunkenness of the perpetrator. Despite this, Guthrie is described throughout the legal narrative as man who has “made a number of changes to [his] life, for the good … he is a new man; he has a new lady. She is here today to support him and she is pregnant.”78 The perpetrator received an eighteenmonth conditional sentence subject to mandatory conditions of abstinence and alcohol treatment. While the legal narrative in this case reveals the resiliency of conventional rape myths of the rapist being “too drunk to know better,” we also see how these myths are enmeshed with the responsibilization of the perpetrator to transform and reconstruct his practice of self-reliance.

  • 79 R v CG, [2001] OJ No 1243 (Sup Ct Just).

43In a similar fashion, in R v CG,79 the perpetrator pled guilty to five counts of videotaping and sexually assaulting his wife while she was passed out. In his reasons for sentence, the judge highlighted the woman’s voluntary consumption of alcohol and their previous consensual sexual relationship. Here conventional rape myths (eg her drinking alcohol and their past sexual relationship) were invoked. Although the perpetrator only pled guilty after his wife was forced to testify, his moral blameworthiness was decentred and, instead, the assessment of risk eclipsed the aggravating factor of the spousal relationship between the offender and his victim. His risk to reoffend was assessed through a psychiatric discourse of the typical sexual deviant:

  • 80 Ibid at para 7.

[the doctor] stated that Mr CG was clinically immature and lacking assertiveness with others, especially women. [The doctor] opined that Mr CG did not appear to be a typical sex offender against adult women in that he did not show the anti-social history, substance abuse, or sexual disorder commonly seen in chronic sexually aggressive men.80

44Clearly, the prudent management of risk and the classification of a typical sexual offender had supplanted recognition of harm done to the woman and the community as the purpose of sentencing in this case.

(iv) “Embarrassment as Denunciation Enough” (R v KRG)

  • 81 R v Khalid, [1997] OJ No 3056 (Ct Just Prov Div).
  • 82 Ibid at para 59.
  • 83 R v KRG, [1996] OJ No 3867 (Ct Just Gen Div).

45Another dimension of conditional sentencing is legal narratives of incarceration as excessively punitive, but only for those perpetrators with middle-class standing. As in R v Markham, we found in two other cases that hetero-masculine social capital (credentialism and professional occupational status) seemed to frame the legal narrative, where the embarrassment of being convicted was assumed to be denunciation enough. In R v Khalid81 (case 133), for example, “[the offender] was a contributing member of society with a history of public service.”82 Similarly, in R v KRG83 (case 81), the perpetrator was convicted of repeatedly sexually assaulting his stepdaughter over an extended period of time. He denied committing the assaults, expressed no remorse, and yet received a conditional sentence of nine months. The perpetrator’s conduct was described as an “aberration” and his character above reproach as he had demonstrated “an enduring work ethic”:

  • 84 Ibid at para 15.

[H]e has otherwise responsibly discharged parental duties, most recently as a single parent for and the sole support of his teenage son and daughter by his first marriage. With a special interest in coaching and in organizing bone marrow donors, he has actively participated in community volunteer work. There is no reason to question the multitude of references attesting to his otherwise good character as an active member of society.84

  • 85 Ibid at para 28.

46Puzzlingly, when deliberating on a term of imprisonment in this case, the judge asserted “that the fallout may be more impactive if the offender has made substantial progress on a career path for which status may be lost.”85

  • 86 Comack & Balfour, supra note 5 at 142.

47In an earlier study of the practice of law in sexual assault cases, Elizabeth Comack and Gillian Balfour found that professional men were often treated with leniency because of “devastating financial and psychological impacts of conviction.”86 Michael Mandel makes an important observation in this regard:

  • 87 Ibid at 143.

The courts recognize it as a legitimate part of the sentencing function to determine the severity of the sentence on the basis not only of the nature of the offence, but also of the nature of the offender, not as an offender but as a social being. Part of this has to do with the criminal record but a good part of it has as well to do with the extent to which the offender fulfils his or her role in the productive apparatus.87

  • 88 Jeffrey H Reiman, The Rich Get Richer and the Poor Get Prison, 5d ed (Boston: Allyn & Bacon, 1998)

48Critical criminologists have long stated that affluent white professionals are less likely to go to prison than racialized or poor people.88 Thus, it is not surprising that conditional sentences in sexual assault cases are justified through the cultural representation of the bourgeois capitalist or white collar professional as unsuited for imprisonment.

49We were surprised to find that men of little sophistication also received conditional sentences, but for very different reasons. Poorly educated and unsophisticated men also needed to be protected from the dangers of imprisonment. For example, sentencing judges in R v Tulk and R v Ridings accepted that the offenders were not predators, but instead men of limited intellect and low self-esteem. In fact, in R v Tulk, the lack of remorse demonstrated by the perpetrator was explained by the sentencing judge in this way:

  • 89 Tulk, supra note 1 at para 15.

[He] does not seem to understand that there is an obligation to obtain informed consent. His testimony and statement to the police confirm his lack of sophistication.89

50As well, in R v Ridings, which involved a fifteen-year-old victim and a forty-three-year-old perpetrator, the sexual assault was described by the judge as:

  • 90 R v Ridings, [1998] OJ No 183 at para 13 (Ct Just Prov Div).

… an isolated incident not in keeping with his general character. His inferior personality does not lend itself to manipulation. He did not use violence or the threat of violence to control the victim. He is not a threat to the community to re-offend. On the contrary there is a greater threat that the perpetrator with his limited intellect would be in danger in a custodial situation. [emphasis added]90

CONCLUSIONS

51From a feminist legal standpoint, conditional sentencing may undermine key feminist reforms that have called for sentencing courts to denounce rape as a gendered, violent crime. In this respect, even seemingly progressive legal narratives may signal a pivotal intertwining of neoliberalism and rape mythologies. Our data suggests that conditional sentencing decisions ultimately reflect both gendered rape myths and neoliberal discursive tendencies towards governance at a distance and self-disciplinary techniques, as these may be imposed on sexual assault offenders.

  • 91 Laureen Snider, “Feminism, Punishment and the Potential for Empowerment” (1994) 9 CJLS 75; Laureen (...)

52Although conditional sentences in sexual assault cases are exceptional, we observed disturbing patterns in these thirteen cases that suggest that conditional sentencing in this context may represent a new site of contestation and struggle for feminist activism. We acknowledge that these questions seem to presuppose imprisonment as the criminal justice response to sexual violence that feminists demand, and that alternatives to imprisonment cannot be denunciatory or coercive. While it is certainly not our intention to contribute to a neo-conservative ethos that “prisons work,” and while we recognize the detrimental effects of imprisonment that can and do contribute to furthering the problem of violence against women,91 at the same time, we challenge the criminal justice response to the harms of sexual violence as manifest in the practices of conditional sentencing examined in this study.

  • 92 SC 2007, c 12 s 1.
  • 93 Bill C-10, The Safe Street and Communities Act (assented to 13 March 2012).
  • 94 Holly Johnson, “Limits of a Criminal Justice Response: Trends in Police and Court Processing of Se (...)

53Since completing this study of conditional sentencing in sexual assault cases in Ontario, a series of sentencing law reforms have been enacted by successive minority Conservative federal governments that campaigned vigorously on a “law and order” platform, promising to enact regressive omnibus legislation that focussed on truth in sentencing. In 2007, conditional sentences became unavailable for sexual assault;92 however, in March 2012 new legislation was enacted in Bill C-10 that jettisons the 2007 law and instead makes conditional imprisonment unavailable only for sexual assault prosecuted by way of indictment where the maximum sentence is 10 years imprisonment.93 As Holly Johnson points out in her chapter,94 90% of sexual assault cases are tried summarily (level 1 sexual assault), and rarely as a serious personal injury offence.

54At first glance such reforms appear to be a partial feminist victory in step with demands for denunciation and protection of women from sexual violence through the incapacitation of men who rape. Yet, most rapes are processed as level one sex assaults due to the complexities of police charging practices (see Holly Johnson’s chapter), thus conditional sentencing is likely to continue, and indeed increase as prison overcrowding inevitably generates pressures on sentencing courts to utilize alteratives to incarceration. In short, sentencing reforms that call for greater use of incarceration do not address the substantive causes of sexual violence: gendered and racialized inequality and misogyny that lie outside of criminal law. It is these gendered conditions of endangerment (feminization of poverty, deep cuts to funding for rape crisis centres, and lack of access to justice), that are the preconditions of sexual violence. Feminists find themselves at the cross-roads of how to engage with law so as to denounce sexual violence without being a part of the law and order regime.

55Thus we believe that future feminist research should continue specialized sentencing studies of sexual assault cases to document and theorize the tactics of lawyers and how the form and fit of rape mythologies are woven into the legal narrative of punishment and harm. Feminist socio-legal scholars have had little voice in the discussions surrounding sentencing in sexual assault cases. Perhaps we should seize this opportunity to define a feminist understanding of harm and reparation.

Notes

1 R v Tulk, [2000] OJ No 4315 (Ct Just).

2 Ibid at para 13.

3 Ibid at para 14.

4 Ibid at para 15.

5 Karen Busby, “Third Party Record Cases since R v O’Connor” (2000) 27 Man LJ 355; Karen Busby, “‘Not a victim until a conviction is entered’: Sexual violence prosecutions and legal truth” in Elizabeth Comack, ed, Locating Law: Race/Class/Gender Connections, 2d ed (Halifax: Fernwood Books, 2006) 258; Elizabeth Comack & Gillian Balfour, The Power to Criminalize (Halifax: Fernwood Books, 2004); Lise Gotell, “Colonization Through Disclosure: Confidential Records, Sexual Assault Complainants and Canadian Law” (2001) 10:3 Soc & Leg Stud 315; Lise Gotell, “The Discursive Disappearance of Sexual Violence: Feminist Law Reform, Judicial Resistance, and Neo-Liberal Sexual Citizenship” in Dorothy E Chunn, Susan B Boyd & Hester Lessard, eds, Reaction and Resistance: Feminism, Law, and Social Change (Vancouver: University of British Columbia Press, 2007) 127; Lise Gotell, “Tracking Decisions on Access to Sexual Assault Complainant’s Confidential Records: The Continued Permeability of Subsections 278.1–278.9 of the Criminal Code” (2008) 20 CJWL 111; Carol Smart, Feminism and the Power of Law (London: Routledge, 1989).

6 Janice Du Mont, Tania Forte & Robin F Badgley, “Does the Punishment Fit the Crime?” (2008) 27 Med & L 477.

7 Adrianna McCutheon-Ciccone, “Adult Criminal Court Statistics 2002/03” (2003) 23:10 Juristat; Janice Du Mont, “Charging and Sentencing in Sexual Assault Cases: An Exploratory Examination” (2003) 15 CJWL 477.

8 Holly Johnson & Vincent F Sacco, “Researching Violence Against Women: Statistics Canada’s National Survey” (1995) 37 Can J Crim 281.

9 Canadian Panel on Violence Against Women, Changing the Landscape: Ending Violence — Achieving Equality (Ottawa: Ministry of Supply and Services Canada, 1993).

10 Martha R Burt, “Cultural Myths and Supports for Rape” (1980) 38 J Personality & Soc Psychol 217.

11 Martha R Burt & Rochelle Semmel Albin, “Rape Myths, Rape Definitions, and Probability of Conviction” (1981) 11(3) J Applied Soc Psychol 212; Janice Du Mont & Deborah Parnis, “Judging Women: The Pernicious Effects of Rape Mythology” (1999) 19:2 Can Woman Stud 102.

12 Smart, supra note 5 at 35

13 Comack & Balfour, supra note 5 at 111.

14 R v Seaboyer, [1991] 2 SCR 577.

15 Bill C-49, An Act to Amend the Criminal Code (prohibiting the admission of sexual history evidence), SC 1992, c 38, s 276, 276.1, 276.2.

16 Gotell, supra note 5.

17 R v O’Connor, [1995] 4 SCR 411. The majority of the Court ruled that sections 7 and 11(d) of the Charter required that the Crown obtain all documents, including privileged communication records on the complainant, and make them available to the defence for the purposes of discovery: Comack & Balfour, supra note 5. As Lise Gotell explains, the Court prioritized accused’s rights over complainants’ “even though … no one has been able to cite even one Canadian case of an innocent man wrongly convicted by a fraudulent or deluded complainant”: Gotell, “Colonization through Disclosure,” supra note 5 at 320.

18 Bill C-46, An Act to amend the Criminal Code (production of records in sexual offence proceedings), SC 1997, c 30, ss 278.1–278.9. Bill C-46 requires the accused to submit to the same two-stage procedure for production of applicable to records held by third parties: disclosure to the trial judge and production to the accused. The first stage obliges the accused to establish that the record in the Crown’s possession is “likely relevant to an issue at trial or to the competence of a witness to testify” (ss 278.3(3)(b) and 278.5(1)(b)). The trial judge must also decide whether disclosure to the court is “necessary in the interests of justice” and consider the salutary and deleterious effects of production on the accused’s right to make full answer and defence, and on the complainant’s or witness’s right to privacy and equality (s. 278.5(1)(c) and 278.5(2)). If the first step is satisfied, the second stage involves judicial inspection of the documents to determine whether and to what extent they should be produced to the accused (ss 278.6 to 278.91).

19 R v Mills, [1999] 3 SCR 688.

20 Laureen Snider, “Making Change in Neo-Liberal Times” in Gillian Balfour & Elizabeth Comack, eds, Criminalizing Women: Gender and (In)Justice in Neo-Liberal Times (Halifax: Fernwood Press, 2006) 323.

21 Gotell, “Tracking Decisions on Access to Sexual Assault Complainants’ Confidential Records,” supra note 5.

22 R v Ewanchuk, [1999] 1 SCR 330, reversing (1998) 57 AR 235.

23 Ibid at para 69.

24 Wendy Brown, Edgework: Critical Essays on Knowledge and Politics (Princeton: Princeton University Press, 2005) at 37.

25 Dorothy Chunn & Shelley Gavigan, “Welfare Law, Welfare Fraud, and the Moral Regulation of the Never Deserving Poor” (2004) 13 Soc & Leg Stud 219.

26 Elizabeth Comack and Tracey Peter, “How the Criminal Justice System Responds to Sexual Assault Survivors: The Slippage Between Responsibilization and Blaming the Victim” (2005) 17 CJWL 282.

27 Karen Busby, “Discriminatory Uses of Personal Records in Sexual Violence Cases” (1997) 9 CJWL 258.

28 Gotell, “The Discursive Disappearance of Sexual Violence,” supra note 5.

29 R v Tulk, supra note 1 at para 17.

30 Michael Tonry, Sentencing Matters (New York: Oxford University Press, 1996); Andrew Ashworth, Andrew Von Hirsch & Julian Roberts, eds, Principled Sentencing: Readings on Theory and Policy, 3d ed (Oxford: Hart Publishing, 1998).

31 Anthony Doob, “Transforming the Punishment Environment: Understanding Public Views of What Should be Accomplished at Sentencing” (2000) 39 Can J Crim 323.

32 Anthony Doob & Jane Sprott, “Fear, Victimization, and Attitudes to Sentencing, the Courts, and the Police” (1997) 39 Can J Crim 275.

33 Canadian Committee on Corrections, Towards Unity: Criminal Justice and Corrections (Ottawa: Queen’s Printer, 1969); Law Reform Commission of Canada, Our Criminal Law (Ottawa: Law Reform Commission of Canada, 1977); Government of Canada, The Criminal Law in Canadian Society (Ottawa: Government of Canada, 1982); Government of Canada, Sentencing (Ottawa: Government of Canada, 1984).

34 David Daubney, Taking Responsibility: Report of the Standing Committee on Justice and Solicitor General on its Review of Sentencing, Conditional Release and Related Aspects of Corrections (Ottawa: Ministry of Supply and Services Committee, 1988).

35 Bill C-41, An Act to amend the Criminal Code (sentencing) and other Acts in consequence thereof, SC 1995, c 22.

36 David Daubney & Gordon Perry, “An Overview of Bill C-41 (The Sentencing Reform Act)” in Julian V Roberts and David P Cole, eds, Making Sense of Sentencing (Toronto: University of Toronto, 1999) 31.

37 Bill C-41; An Act to Amend the Criminal Code (Sentencing), SC 1995, c 22.

38 R v Gladue, [1999] 1 SCR 443; R v Wells, [2000] SCR 780.

39 Wells, ibid.

40 Marie Gannon & Jodi-Anne Brzozowski, “Sentencing in cases of family violence” in Jodi-Anne Brzozowski, ed, Family Violence in Canada: A Statistical Profile 2004 (Ottawa: Statistics Canada 2004) 53.

41 Statistics Canada, Measuring Violence Against Women: Statistical Trends (Ottawa: Canadian Centre for Justice Statistics, 2006) at 53.

42 Gotell, “The Discursive Disappearance of Sexual Violence” and Tracking Decisions on Access to Sexual Assault Complainant’s Confidential Records,” supra note 5.

43 Linda Coates, “Causal Attributions in Sexual Assault Trial Judgments” (1997) 16 J Lang & Soc Psychol 278; Linda Coates & Allan Wade, “Telling it Like it is: Obscuring Perpetrator Responsibility for Violent Crime” (2004) 15 Discourse and Society 499; Clare MacMartin, “Unreasonable Doubt? The Invocation of Children’s Consent in Sexual Abuse Trial Judgments” (2002) 13 Discourse and Society 9.

44 Dianne Crocker, “Regulating Intimacy: Judicial Discourses in Cases of Wife Assault (1970–2000)” (2005) 11:2 Violence Against Women 197.

45 Clare Connelly, “Prosecution of Rape and Sexual Assault” (2002) 28:15 J Family Planning & Reproductive Health Care 17.

46 Susan MacDonald & Andrea Wobick, “Bill C-46: Records Applications Post-Mills, A Caselaw Review” (2004) JustResearch 14.

47 Gotell, “The Discursive Disappearance of Sexual Violence,” supra note 5; Comack & Peter, supra note 26.

48 Busby, supra note 5.

49 “All That Glitters is Not Gold: The False Promise of Victim Impact Statements,” Chapter 26 in this book.

50 Ruparelia, ibid.

51 R v SR, [1998] OJ No 1439 at para 14 (Ct Just Prov Div).

52 Ibid at para 14.

53 Ibid at para 25.

54 Ibid at para 26.

55 Ibid at para 35.

56 R v TS, [1996] OJ No 3761 (Ct Just Prov Div).

57 Ibid at para 28.

58 Ibid at para 17.

59 Ibid at para 21.

60 R v Kakepetum, [2001] OJ No 1511 (Ct Just).

61 Ibid at para 9.

62 R v BK, [2000] OJ No 2708 (Sup Ct Just).

63 Ibid at para 6.

64 R v Corcoran, [1999] OJ No 5165 (Sup Ct Just).

65 Ibid at para 28.

66 Busby, supra note 27.

67 R v Pecoskie, [2000] OJ No 1421 (Sup Ct Just).

68 Ibid at para 12.

69 Ibid at para 4.

70 Kelly Hannah-Moffat, “Criminality, Need, and the Transformative Risk Subject: Hybridization of Risk/Need in Penality” (2004) 7 Punishment and Society 29; Kelly Hannah-Moffat, “Moral Agent or Actuarial Risk Subject: Risk and Canadian Women’s Imprisonment” (1999) 3:1 Theoretical Criminology 71.

71 Kelly Hannah-Moffat, “Criminality, Need, and the Transformative Risk Subject,” ibid at 30.

72 Kelly Hannah-Moffat, “Moral Agent or Actuarial Risk Subject,” supra note 66.

73 R v Markham, [1998] OJ No 5957 (Ct Just Gen Div).

74 Ibid at para 23.

75 Ibid at para 31.

76 Pecoskie, supra note 67 at para 6.

77 R v Guthrie, [1999] OJ No 4566 (Ct Just Gen Div).

78 Ibid at para 28.

79 R v CG, [2001] OJ No 1243 (Sup Ct Just).

80 Ibid at para 7.

81 R v Khalid, [1997] OJ No 3056 (Ct Just Prov Div).

82 Ibid at para 59.

83 R v KRG, [1996] OJ No 3867 (Ct Just Gen Div).

84 Ibid at para 15.

85 Ibid at para 28.

86 Comack & Balfour, supra note 5 at 142.

87 Ibid at 143.

88 Jeffrey H Reiman, The Rich Get Richer and the Poor Get Prison, 5d ed (Boston: Allyn & Bacon, 1998).

89 Tulk, supra note 1 at para 15.

90 R v Ridings, [1998] OJ No 183 at para 13 (Ct Just Prov Div).

91 Laureen Snider, “Feminism, Punishment and the Potential for Empowerment” (1994) 9 CJLS 75; Laureen Snider, “Towards Safer Societies: Punishment, Masculinities and Violence Against Women” (1998) 38 Brit J Crim 1.

92 SC 2007, c 12 s 1.

93 Bill C-10, The Safe Street and Communities Act (assented to 13 March 2012).

94 Holly Johnson, “Limits of a Criminal Justice Response: Trends in Police and Court Processing of Sexual Assault,” Chapter 24 in this book.

Auteurs

An Associate Professor of Sociology at Trent University in Peterborough, Ontario, where she teaches in the areas of critical criminology and socio-legal theories. Her research interests include neoliberal reframing of institutional responses to sexual violence, such as sentencing in rape cases that focuses on therapeutic control of risk rather than reparation for harm and denunciation, and how the criminal justice system organizes the relationship between women’s victimization, criminalization, and incarceration. She has published, with Elizabeth Comack, two edited books: The Power to Criminalize: Violence, Inequality and the Law, and Criminalizing Women: Gender and (In)Justice in Neo-Liberal Times. She has also published in the International Review of Victimology and Feminist Criminology, where she examines how restorative justice sentencing in Canada has become a site of backlash against feminist inspired law reforms

A Scientist at Women’s College Research Institute and an Associate Professor in the Dalla Lana School of Public Health at the University of Toronto. Dr Du Mont was holder of a 2002– 2004 and 2006–2009 New Investigator Award at the Canadian Institutes of Health Research. Her research looks at gender-based violence and women’s health with a particular focus on the medical and legal responses to sexual assault. She has served as an advisor to the World Health Organization initiative to document the criminalization of sexual violence across regions and evaluate the health sector response to sexual assault in low resourced settings

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