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Sexual Assault in Canada

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Elizabeth A. Sheehy

Index

Texte intégral

A

Abella, Rosalie (Justice)
EB v Oblates of Mary Immaculate in the Province of BC, 155, 168–69
R v Osvath, dissent, 526
sexual abuse and sexual touching of children, 565

ableism, 337, 412

Aboriginal(s). See also Indigenous women and girls
Aboriginal Justice Inquiry of Manitoba, 685
accused, cases involving, 551–53
Bourassa (Justice) racist comment on sexual assault of Aboriginal women in the north vs. white women in the south, 487, 685
capital offenders, 684
Edmondson, Kindrat, and Brown prosecutions for sexual assault of twelve-year-old Aboriginal girl, 115, 128
Edmonton police and, 296–97
George, Pamela, 673–74
male judges minimize harm suffered by Aboriginal women, 685
men convicted of sexual assault, 714–16
murders and disappearances of Edmonton Aboriginal women and sex trade workers, 257
myth that racialized people are inherently dangerous and violent, 674
people have little reason to trust a justice system that sustains colonial relations, 690
racialized communities, including Aboriginal ones, have the least to gain from victim impact statements, 667
rape of unconscious Aboriginal women is seen as low in criminality by police and prosecutors, 487
Razack (Justice): Aboriginal women are viewed as “inherently rapeable,” 685
Report of the Royal Commissionon Aboriginal People (RCAP Report), 155–56, 163
R v BK, 715–16
R v Edmondson, Kindrat and Brown, 12 (See also Indigenous women and girls)
R v Kakepetum, 714–15
R v Williams, 551–52
schools were established to destroy Aboriginal identity in order to reduce governments’ fiscal obligations to First Nations communities and to facilitate settler expansion, 170
“Statement of Reconciliation” by federal government that acknowledged its role in the “culture of abuse” within Aboriginal residential schools, 163
stereotypes allow both Aboriginal and white men to be absolved of responsibility for the rape of Aboriginal women, 686
Supreme Court of Canada: the vicarious liability of enterprises that managed Aboriginal residential schools, 162
Supreme Court presumed fairness to taxpayers trumps fairness to the lost generations of Aboriginal children, 170
Supreme Court’s response to compensation claims by Aboriginal men and women who were sexually abused as children, 12
white men’s participation in violent domination of an Aboriginal woman was viewed as natural, 673
women are considered “prey” and systemic racism of perpetrators leads to targeting of racialized women, 539
women are five times more likely to be sexually assaulted than non-Aboriginal women, 689
women have little if anything to gain from victim impact statements, 665

Aboriginal Justice Inquiry of Manitoba, 685

Aboriginal women and girls. See Indigenous women and girls

Acorn, Annalise, 492

actus reus cases, 275, 543, 545, 549–50, 568

Adams, Susan (Special Agent), 203

adolescent(s). See also age of sexual consent
adolescent sexuality, risks inherent in criminalizing, 580
consensual sexual relations between adolescents age fourteen to sixteen and persons more than five years older than they are is prohibited, 573
male adolescents/adult women couples, 578
s 153 of the Criminal Code prohibitsany form of sexual contact between an adolescent age fourteen to eighteen and an adult in a position of trust or authority regardless of consent, 572–73
s 159 of the Criminal Code: consent to anal intercourse requires that the adolescent has attained eighteen years of age, 572
sexual crimes perpetrated against adolescents are committed on a non-consensual basis by those in their immediate circle of family and friends, 584
sexual education programs for adolescents vs. criminalization, 579
sexuality, risks inherent in criminalizing, 580
standard behavioural profile of sexual activity and preferences, 577

ADR. See alternate dispute resolution (ADR)

Adult Criminal Court Survey (2006/2007), 631

advance consent to sexual contact. See also consent
McLachlin (Justice): consent must be voluntarily given by a person capable of consent and consent must be ongoing, subject to revocation by the complainant (consistent with the Criminal Code), 516, 535
reasonable steps requirement, 516
R v Ashlee, 515–16
R v JA, 516, 535
R v Tookanachiak, 515
Supreme Court of Canada rejected the proposed doctrine of, 516, 535

Against Our Will: Men, Women and Rape (Brownmiller), 734

age of sexual consent

adolescents do not conform to one standard behavioural profile of sexual activity and preferences, 577
adolescent sexuality, risks inherent in criminalizing, 580
age of consent as fourteen years for heterosexual adolescents with partners of about the same age, sixteen years for heterosexual adolescents with adult partners, eighteen years for gay adolescents, regardless of the age of their partners, 584
age of consent varies between twelve and eighteen years of age in Western democracies, 570
age of consent was raised to age sixteen for purposes of better protecting adolescents from sexual abuse and exploitation, 571, 573

anal intercourse, matrimony makes legal consensual, 573

Badgley Committee, 585–86

Badgley Report (1984), 572
The Canadian Youth, Sexual Health and HIV/AIDS Study (2008), 575–78
Charter and sexual freedom, 580–82
children aged fourteen to sixteen years may consent to sexual contacts with any adult provided the adult is his or her legally wedded spouse, 573
conceptual basis for raising the, 578
consensual sexual relations between adolescents age fourteen to sixteen and persons more than five years older than they are is prohibited under new provisions (2008), 573
“conservative crusade” against sexual predators is clearly a renewal of legalistic moralism, 569, 571, 588
conservative perspectives on, 582–854
feminist perspectives on, 585–88
gay sexual relationships, 584
gay youth and adult men, 578
“harm principle,” Supreme Court refused to recognize the, 580
homosexuality, 542n5, 582
Law Reform Commission, 578
as legal moralism aimed at curtailing adolescent sexuality, 18
liberal perspectives on, 579–82
male adolescents/adult women couples, 578
as a means of controlling young people, 582
raising of the age of consent does not afford better protection from adult sexual predators as nonconsensual sexual relations have always been criminalized and consensual sexual contacts with adults are already prohibited, 587
raising the age of consent (2008) is based on deeply conservative moralism, 569, 571, 588
raising the age of consent (2008) to age sixteen “protects” adolescents from sexual abuse and exploitation, 571
R v Labaye (harm principle and criminal indecency), 580
s 150.1(2.1)(b) of the Criminal Code: consent of a person age fourteen to sixteen is valid if it is given to his or her spouse, 583
s 150 of the Criminal Code permits a lower age of consent, between twelve and fourteen years, if the age difference between the two persons is not more than two years, 572–73
s 151 and 152 of Criminal Code prohibits any form of sexual contact with a person under age fourteen, 572
s 153 of the Criminal Code prohibitsany form of sexual contact between an adolescent age fourteen to eighteen and an adult in a position of trust or authority regardless of consent, 572–73
s 159 of the Criminal Code: consent to anal intercourse requires that the adolescent has attained eighteen years of age, 572
s 159 of the Criminal Code discriminates on the basis of sexual orientation, contrary to s 15 of the Charter, 583
sexual assault is now only a function of age difference, 573
sexual assaults perpetrated on infants and children, 585
sexual autonomy as the right to say “yes” (privacy) and the right to say “no” (protection of physical integrity), 581
sexual contact with children whether consensual or not is prohibited by criminal law, 570
sexual contact without consent is prohibited, 570
sexual crimes perpetrated against adolescents are committed on a non-consensual basis by those in their immediate circle of family and friends, 584
sexual education programs for adolescents vs. criminalization, 579
sexual freedom and the Charter, 580–82
sexual freedom is an aspect of the right to physical integrity, 581
sexual touching in violation of the person’s will to be touched is prohibited by the Criminal Code, 570
young women freely “consent” to sexual contact with adult men, 569
young women’s claims to autonomy will be disempowered by criminal law, 569

aggravated assault
prosecutions based on non-disclosure of HIV, 635–38, 640, 644–45, 655, 657–58

aggravated sexual assault
level 3 (s 273 of the Criminal Code) aggravated sexual assaults with wounding, maiming, disfiguring, or endangering the life of the victim, 618–19, 629
prosecutions based on non-disclosure of HIV, 635–36, 640, 644–45, 648, 654–55, 657–59
sexual assaults where the offender “wounds, maims, disfigures or endangers the life of the complainant,” 274–75, 618
vs. aggravated assault or criminal negligence causing bodily harm, 644–45

Ahmad, Aalya, 258–59

“air of reality”
to the allegation, 551
defence, 499–503
to a defence, 503, 507, 512, 515, 518, 520, 528
test for mistaken belief where the accused claims reasonable steps were taken to ascertain consent, 537
test must include consideration of whether there is any evidence that the accused took reasonable steps to ascertain consent, 500

Alcoff, Linda, 245–46, 260

alternate dispute resolution (ADR), 736

American Sign Language, 177

anal intercourse, 573, 644, 648–49

Angione v R, 20, 725–26, 733, 735

Anne of Green Gables, 352

Anns analysis, 217, 225

Anns test (reasons for declining duty of care), 220–21

Anns v Merton London Borough Council, 216

anti-oppression theory and practice, 305

antiretroviral treatment for HIV and AIDS, 649

anti-violence women’s movement, 310

appeal
to provincial Court of Appeal, 137
by superior court judge, 137
to Supreme Court of Canada, 137

appeal courts
for decisions of the lower courts across the country, 494
Indigenous victim views it as part of the systemized violence of the past, 107
judicial failure to address s 273.2(b) explicitly has been held to be an error of law by appeal courts in DIA and Malcolm, 537
limits on the use of the “mistake” defence when a sleeping or unconscious woman is the target of the assault, 526
may correct error and substitute the proper verdict by applying the law to the findings of fact recorded in the reasons for decision by the trial judge, 136
may order a retrial, but cannot substitute a conviction for a verdict of acquittal rendered by the jury, 136
similar legal claims on similar facts, 158
United Kingdom and Jane Doe case, 50

appeal judge
decision was based on the accused’s account of the facts, 521
findings of fact were ignored and he focused instead on the accused’s narrative about the myth of male prerogative as immune from the criminal law, 523

Armstrong, Louise, 443

assault. See aggravated assault; aggravated sexual assault; founded sexual assaults; HIV exposure as assault; indecent assault provisions

Assault Nurse Examiner programs, 617

Atkinson, Maxwell, 393, 404

Attorney General of Canada
has exclusive jurisdiction under s 91(27) of the Constitution Act to prosecute all federal offences, 144
responsible for the prosecution of Criminal Code offences in the territories, 149

Attorney General of Saskatchewan, 117, 119–21, 127, 146n49

Auditor General for the City of Toronto review of Toronto Police practices regarding sexual assault investigations, 35, 37

The Auditor General’s Follow-up Review (2004), 201

Australian Aboriginal Dreamkeeper, 311

Avio, Kenneth, 684

B

bad character door, 549

bad character evidence. See character evidence

Badgley Committee, 585–86

Badgley Report (1984), 572

Baeza, John (detective), 204, 206–8, 222, 232

“Baeza False Report Index,” 206, 222, 232

Bain, Beverly, 8, 36, 336

Bakht, Natasha, 8, 340

“Balcony Rapist.” See also Jane Doe v Metropolitan Toronto (Municipality) Police
about, 23, 29, 32, 192, 243, 247

baton rape, 56–60

battering, psychological impact of, 599

Baumgardner, Jennifer, 264

Bavelas, Janet, 391

Bazilli, Susan, 342

Bazley, Margaret (Dame), 64

Bazley v Curry case, 151, 157, 160–62, 165, 170–71

BC Supreme Court
R v Aitken (ruling on “reasonable steps”), 520–21

“belief” in consent
accused’s honest, 506, 531
Criminal Code bars “belief in consent” under s 273.2 ; s 19; and s 265(4), 139

Benedet, Janine, 508, 533

Bill C-10: conditional imprisonment is unavailable for sexual assault, 723

Bill C-41: new sentencing provision for “conditional sentences of imprisonment,” 708–9

Bill C-46: constrained disclosure requests to ensure closer scrutiny of documents sought by the defence for the purposes of discrediting the Crown’s case against the accused, 705

Bill C-49
the “no means no” law, 521
“reasonable steps” requirement was intended to criminalize sexual assaults committed by men who claim “mistake” without any effort to ascertain the woman’s consent, or whose belief in consent relies on self-serving misogynist beliefs, 489–90, 492

Bill C-49: codified a legal definition of “consent” along with the “reasonable steps” to be taken to ascertain consent to sex, 705

Bill C-49: 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, 705

Bill C-127 (1983): created three new categories for the offence of assault; repeal of the corroboration requirement (physical evidence or thirdparty testimony); the doctrine of recent complaint; addition of limits on the ability of defence lawyers to ask questions about the sexual history of the complainant or the “rape shield provision,” 705

Binnie (Justice)
B(CR) case, 548
“‘disposition’ or ‘propensity’ evidence is, exceptionally, admissible,” 548
EB case, 165, 168
Handy case, 548–50

biological women, 361

black men myths, 681–82

Blackstone, William, 569

Blatchford, Christie, 74

Bonisteel, Mandy, 366

Bouck, John (Justice), 691, 696

Bourassa, Michel (Justice), 487, 685

Boyd, Mary-Ellen (Justice), 521

Boyle, Shary, 349

Breggin, Peter, 418, 425

British Home Office, 628

Bromley, Victoria, 258–59

Brooks, Kim, 334

Brown, Jennifer, 202

Brown, Lorne, 90, 121–24

Brown, Sam, 56–58, 61

Brownmiller, Susan, 734

Brownridge, Douglas, 185–86

Buckner, Vanessa, 99–100

Bureau of Justice Statistics [U.S.], 616

Burstow, Bonnie, 440

Busby, Karen, 205–6, 675

BWSS. See Vancouver’s Battered Women Support Services (BWSS)

C

Calder, Gillian, 331–33, 337–39, 342–45, 347–50, 353

The Cambridge Handbook of Expertise and Expert Performance (Ericsson), 415

Campbell, Maria (elder), 90, 94–95, 99, 103, 107–8, 336

Campeau, Priscilla, 336

Canada’s Hockey Summit (2010), 85

Canadian Bar Association
Locking up Natives in Canada: A Report of the Committee of the Canadian Bar Association on Imprisonment and Release (1988), 551–52

Canadian Charter of Rights and Freedoms (Charter)
claims and access to justice, 237–38
discrimination based on disability, prohibits, 183
equality claim, 228–34
equal protection and equal benefit of the law, 24
freedom of religion, 608
gender bias and equality provisions of, 3
Olympic women athletes and right to equality, 85–86
rights of a victim including protection of her safety, privacy, personal autonomy and dignity, 219
right to a fair trial, 605–6
s 1: sexual freedom is justified under, 580–82
s 7: right to security of the person, 14, 29, 31, 33
s 15: right to equality, 14, 29, 31, 33
s 24(1): allows a court to grant any such remedy as the court considers appropriate and just in the circumstances, 237
sexual freedom and, 580–82
ss 7, 15, and 28: women and children are protected from violation of their rights to security of the person and equal protection, benefit, and enjoyment of the law, 145
ss 7 and 11(d): right to a fair trial, 606
women’s rights to equality during a sexual assault trial, 606

Canadian Judicial Council’s model of jury instruction on demeanour, 601

Canadian Panel on Violence Against Women, 704

Canadian Sentencing Commission, 708

Canadian Urban Victimization Survey (1982), 615

The Canadian Youth, Sexual Health and HIV/AIDS Study (2008), 575–78

Castel, Robert, 252

“cat o’ nine tails,” 730

character evidence
absence of corroboration and presence of good character evidence has the most dramatic effect on whether a guilt finding is likely, 472
bad character evidence, conduct of the defence can impact on the admissibility of, 555
bad character evidence, the general exclusionary rule states that the Crown cannot lead, 542
bad character evidence can infect and corrupt the trial process, 543
bad character evidence in response to defence tactics is commonly referred to as the “tit for tat” principle, 555
bad character evidence is exclusion, 542
bad character evidence on the deliberative process, common law’s concern about prejudicial effect of, 556
prior sexual history evidence in sexual assault cases, general mistrust based of, 568
similar fact evidence vs., 541

Charter. See Canadian Charter of Rights and Freedoms (Charter)

Chesler, Phyllis, 418

child abuse specialist in Saskatoon, 133

Child and Family Services Act, 437–38

childhood sexual abuse, 435, 443

child protection
agencies, 435
authorities, 435
risk scales, 435
systems, 409, 434

Children’s Aid Society, 429

children sexually objectified as “women,” 82

Christie, Nils, 672

civil action for “wrongful unfounding” of reported rapes by police. See police and court processing of sexual assault

civil standard of proof, 471

classism, 158, 412

Clayton, Trevor (New Zealand police officer), 56

Coates, Linda, 391

College of Physicians and Surgeons of Ontario (CPSO), 451–82. See also medical doctors and sexual abuse in Ontario

College of Social Work, 381

collusion. See also similar fact evidence
psy-discipline and legal system collusion in violence against women, 444
as the “whiff of profit,” 560

colonialism, 412, 539, 591, 669, 689–90

Comack, Elizabeth, 298, 390–91

Commission on Systemic Racism in the Ontario Criminal Justice System, 689

community-based anti-violence feminists, 382

complainant(‘s)
can apply for an order directing that her identity and any information that could disclose her identity not be published, 596
closed circuit television testimony and testimonial screens for complainants who are minors, 596
counselling records, 281
prior sexual conduct and therapeutic records, 596
rights to privacy, security of the person, and equality, 607
rules, 390
who was drugged “was responsible for her own actions,” 524

conditional sentencing (house arrest)
Aboriginal men convicted of sexual assault, 714–16
actuarial techniques used to assess risk that offenders pose to the community, 718
Bill C-10 conditional imprisonment is unavailable for sexual assault, 723
Bill C-41 and new sentencing provision permitting “conditional sentences of imprisonment,” 708–9
Bill C-46 to 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, 705
Bill C-49 codified a legal definition of “consent” along with the “reasonable steps” to be taken to ascertain consent to sex, 705
Bill C-49 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, 705
Bill C-127 (1983) created three new categories for the offence of assault; repeal of the corroboration requirement (physical evidence or third-party testimony); the doctrine of recent complaint; addition of limits on the ability of defence lawyers to ask questions about the sexual history of the complainant or the “rape shield provision,” 705
bourgeois capitalist or white collar professionals are unsuited for imprisonment, 722
Canadian Panel on Violence Against Women, 704
Canadian Sentencing Commission and call for restraint in the use of imprisonment, 708

conditional sentences are more likely to be handed down in sexual assault cases vs. all violent crime categories, 710

conditional sentencing for sex offenders, 613

conditional sentencing for sexual assault cases, 703

conditional sentencing study by feminists, 710–11
conventional notion of rape (stranger perpetrated, weapons, vaginal, or anal penetration), longer sentences are imposed on sexual assaults conforming to, 703
criminal trials can become “pornographic vignettes” and a “celebration of phallocentrism,” 704
damaged but responsible, 716–17
Daubney Committee and sentencing principles to acknowledge harm done to victims and the community, 708
defence lawyers challenge the revised rape shield statute doing “end runs” around restrictions on sexual history evidence by using third-party and confidential records of therapists or counsellors, 705
feminist challenge the use of rape myths in practice of law and judicial decision-making, 706–7
feminists need to challenge conditional sentences, 707
feminists need to challenge criminal justice response to the harms of sexual violence and conditional sentencing, 723
legal and rape narratives, emergent, 712
legal narratives portray men convicted of rape as easily governed by therapeutic management of their diagnosed sexual deviance disorders or poor cognitive capacity, 712
male affluent white professionals are less likely to go to prison than racialized or poor people, 721
“Measuring Violence Against Women,” 702–3
men who are breadwinner husbands and fathers are deemed undeserving of incarceration through the evocation of class and gender subjectivities, 717
men who are poorly educated and unsophisticated need to be protected from the dangers of imprisonment, 722
men who are professional are treated with leniency because of the “devastating financial and psychological impacts of conviction,” 721
minimizes “embarrassment” on the offender, 20
minimizes harm caused by the perpetrator, 20
rape law reform (1983-1992), 704–7
rape myths, 704
rape myths and sentencing of men convicted of sexual assault, 707
rape myths remain ubiquitous in strategies of lawyers, 702
rape myths shifted in accordance with the expansion of neoliberalism, 711
rapes are usually processed as level one sex assaults due to the complexities of police charging practices, 723
restorative justice sentencing option for sexual assault offenders, 20
risk, minimizing and managing the, 717–22
R v BK (Aboriginal man), 715–16
R v CG, 720
R v Corcoran, 716
R v Ewanchuk (implied consent), 706
R v Guthrie, 719–20
R v Kakepetum (Aboriginal man), 714–15
R v Khalid, 720–21
R v KRG, 721
R v Markham (medical doctor), 718–20
R v Mills (defense challenge to access third-party records), 706
R v O’Connor, 705
R v Pecoskie, 716–17, 719
R v Ridings, 722
R v SR (sexual assault with weapon and forced confinement), 713
R v TS (intimate partner violence), 713–14
R v Tulk, 701–3, 722
R v Wells, 709–10
s 742.1 of the Criminal Code, 709
sentencing judge’s concern for the well-being of the perpetrator and is perceived vulnerability to possible revenge by his wife, 714
sentencing policy in Canada is not sensible or defensible, 708
sentencing reforms, 708–10
sexual assault law reforms (Bills C-127, C-49, C-46) and restorative justice sentencing principles designed to limit the use of imprisonment, 703
Supreme Court of Canada ruled (1992) rape shield provision violated constitutional legal rights of the accused, and was thus unconstitutional, 705
Supreme Court of Canada threw out the defence of “implied consent,” 706
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, 706
victim impact statements have a limited and sometimes troubling place in sexual assault sentencing decisions, 712–13
women, locating the, 713–16

“condom defence,” 647–48

condom use and HIV, 647–48

Conrad (Madam Justice), 487

consensual anal intercourse, 573

consensual but “unwanted sex,” 70. See also non-consensual sex

consensual sex. See also HIV exposure as assault; non-consensual sex
between adolescents age fourteen to sixteen and persons more than five years older than they are, 573
for adolescents age twelve to fourteen years, 573
between adolescents and adults in a position of trust, authority, or exploitation, 573, 587
between adolescents and adults in circumstances of relative equality, 578, 589
change of heart after a, 206
complainant did not resist her perpe trator sufficiently and, 403, 407
conventional rape myths and, 720
cross-examining lawyer’s controlling questions on, 402–3
HIV non-disclosure and, 635, 639, 655
judges use language of erotic, affectionate sex to describe nonstranger rape, 391
language judges used was often that of, 391
men claim that women fall asleep in the middle of, 488
“mistaken belief” regarding consent in light of the previous night’s, 507
between PHAs and those not aware of the person’s HIV positive status, 635
raising of the age of consent does not afford better protection from adult sexual predators, 587
R v Handy, 18, 542–43, 545–47, 557, 559
women are questioned about recent, 372
between young adults and adolescents, 573

consensual sexual relations
between adolescents age fourteen to sixteen and persons more than five years older than they are is prohibited under new provisions (2008), 573
between adolescents and adults, 589
men claim that women fall asleep in the middle of consensual sexual contact, or that they were unaware that the women had passed out, and that women “come on” to them while unconscious, 488
R v CG, 720

consent. See also advance consent to sexual contact; age of sexual consent; “air of reality”; “belief” in consent; Criminal Code; HIV exposure as assault
Bill C-49: codified a legal definition of “consent” along with the “reasonable steps” to be taken to ascertain consent to sex, 705
Bill C-49: “reasonable steps” requirement was intended to criminalize sexual assaults committed by men who claim mistake without any effort to ascertain the woman’s consent or whose belief in consent relies on self-serving misogynist beliefs, 489–90, 492
criminal fraud should be applied to consent in sexual assault cases as based on dishonesty, which can include non-disclosure of important facts, and deprivation or risk of deprivation, 639
Crown, can it prove the complainant was incapable of consent?, 483, 508–18
Ducharme (Justice) and ruling that the woman was incapable of consent, 510–11
“incapable of consent,” complainant must be virtually unconscious to be deemed, 508
as lack of physical resistance, corroborated by bodily injuries, 677
law must require men to ensure that their partners are conscious before having sex, 523
McLachlin (Madame Justice): Criminal Code consent must be voluntarily given by a person capable of consent and must be ongoing, subject to revocation by the complainant, 516
men claim that women fall asleep in the middle of consensual sexual contact, or that they were unaware that the women had passed out, and that women “come on” to them while unconscious, 488
men’s stories tap into phallocentric beliefs, 488
myth that young women freely “consent” to sexual contact with adult men, 569
no consent, circumstances of, 276
non-consensual sexual touching, why de-criminalize?, 538
steps to ascertain, 276
Supreme Court of Canada threw out the defence of “implied consent,” 706

“conservative crusade” against sexual predators is clearly a renewal of legalistic moralism, 569, 571, 588

Constitution Act (1982)
s 91(27): federal government’s responsibilities with respect to criminal law, 141, 143, 147

Cornish, Mary (lawyer), 31, 48

corroboration rules, abolition of, 595

corroborative evidence
of complainant’s claim against a doctor, 464–66
corroboration for CPSO, forms of, 464–66
corroboration requirements of CPDO, 462–63
gender bias in rulings that exclude sexual misconduct from rape trials, pervasive influence of, 18
myth that “women lie about rape,” 304
Sexual Assault Evidence Kit as, 369–72
should never be used in sexual assault cases for fear that it will rein-force the stereotype that sexual assault complainants require corroboration, 567

Cory (Justice), 637–42, 650, 651n58–59
criminal fraud should be applied to consent in sexual assault cases based on dishonesty, which can include non-disclosure of important facts, and deprivation or risk of deprivation, 639
dishonest action or behaviour must be related to obtaining consent to engage in the alleged sexual intercourse and can take the form of either deliberate deceit respecting HIV status or nondisclosure (silence) as to that status, 639–40
dishonesty results from some form of depravation or bodily harm, 640
“significant risk of serious bodily harm” test, 641

courts
are focused on the issue of sex vs. the domination and violent aspect of the encounter, 561
dissimilarities in the sexual nature of incidents can be seen in the high number of exclusions in cases involving female complainants under the age of nineteen, 563
evidence admitted in cases involving male complainants under the age of nineteen and female complainants over the age of eighteen, 563–64n89, 563n 88
harm caused to white victims is valued differently for victims who are racialized, 678
heightened scrutiny dissimilarities in the sexual nature of incidents can be seen in the high number of exclusions post-Handy particularly in cases involving female complainants under the age of nineteen, 563

CPSO. See College of Physicians and Surgeons of Ontario (CPSO)

CPSO v Abelsohn, 470–71

CPSO v Wyatt, 468–69

Cree laws, 11

Crenshaw, Kimberlé, 609, 678

Crew, Blair (professor, University of Ottawa Faculty of Law), 47, 196, 211–40

crime prevention
gendered realities of sexual violence and, 254
gender-neutral language of, 256
justice system’s ability to locate criminals, try them, and punish them, 284
“self-discipline” as central to neoliberal, 252

Criminal Code. See also police and court processing of sexual assault
consent and mistaken belief in consent have been clarified and narrowed in, 3
defence counsel in sexual assault decisions will often use non-legal or social definitions of sexual assault that are entangled with an array of myths and stereotypes that undermine the preamble to 1992 amendments to the sexual assault provisions of the Criminal Code, 142
of 1892, first, 729–30
of 1954: death penalty for rape, 731
reform (1992): consent defined as “voluntary agreement” and complainant must be capable of decision-making and have agreed to the sexual contact without threat or coercion, 484
reform (1992) defines consent as “voluntary agreement” and complainant must be capable of decision-making and have agreed to the sexual contact without threat or coercion, 484
s 2 has been amended for concurrent federal–provincial jurisdiction in the prosecution of terrorist offences, 145
s 150.1(2.1)(b): consent of a person age fourteen to sixteen is valid if it is given to his or her spouse, 583
s 150.1(4) of, 119
s 150.1 or s 273.2: precludes the accused from relying on a belief in consent, 123
s 150: permits a lower age of consent, between twelve and fourteen years, if the age difference between the two persons is not more than two years, 572
s 151 and 152: prohibits any form of sexual contact with a person under age fourteen, 572
s 153: prohibits any form of sexual contact between an adolescent age fourteen to eighteen and an adult in a position of trust or authority regardless of consent, 572
s 159: consent to anal intercourse requires that the adolescent has attained eighteen years of age, 572
s 159: discriminates on the basis of sexual orientation, contrary to s 15
of the Charter, 583
s 265(3)(c): states that no consent is obtained where the complainant submits or does not resist by reason of “fraud,” 638
s 271: level I sexual assaults that do not include elements of levels II and III, 618–21, 629
s 272: level II for sexual assaults with a weapon, that caused bodily harm to a person other than the victim, or that are committed with another person, 618–21, 629
s 273.2(b): a man must take reasonable steps to ascertain the woman’s consent in order to be exculpated for his “mistaken” belief that she consented, 484
s 273.2(b): applies to an “air of reality” to the defence of mistaken belief in consent, 117–18, 501–2, 504
s 273.2(b): holds potential for social change and disruption of men’s relative immunity from criminal liability for sexually assaulting unconscious women, 539
s 273.2; s 19; s 265(4): “belief” in consent is barred under, 139
s 273: level III for aggravated sexual assaults with wounding, maiming, disfiguring, or endangering the life of the victim, 618–19, 629
s 276 and s 278, 116–17
s 540(7): evidence submitted at preliminary inquiry by means of a written statement, or videotaped statement, 134
s 722: entitles a person to prepare a victim impact statement only if the person is the victim of an offence, 669
s 722: offers victims of crime the opportunity to submit a written victim impact statement and to present it orally at the sentencing hearing to convey harm inflicted upon the victim by providing an assessment of the physical, financial, and psychological effects of the crime, 666
s 742.1, 709
sexual touching in violation of the person’s will to be touched is prohibited, 570

Criminal Injuries Compensation Board R v Handy, 546, 559–60

criminal injuries compensation boards, 736

criminal justice personnel, 19

criminal justice system. See also “air of reality”; consent; “mistake of fact” defence; rape shield provisions; “reasonable steps” requirement acts as mediator between perpetrators and victims, 282–83
attrition of sexual assault cases through, 626–34
“beyond a reasonable doubt” standard, 286

criminal trials can become “pornographic vignettes” and a “celebration of phallocentrism,” 704
filtering effect of the, 613
ideal rape victim, 591
“indemnification of the victim” as an alternative to imprisonment for pain and suffering, 727
justice must not only be done; it must be seen to be done by those who have been subjected to, 26
objective to identify and punish individual perpetrators of sexual assault, 284
objectivity is key principle of, 281–82, 290
police emphasize that women are responsible for protecting themselves from rape, 285
principle of “retribution” or “vengeance,” 735
rape, does not provide an award of damages for, 278
raped women, discrimination facing, 302, 305
rape myths, use of, 286
rapes are crimes vs. violence and racism of police, 298
rapes are usually processed as level one sex assaults due to the complexities of police charging practices, 723
rape trial is an abstracted exercise of logic unrelated to context of sexual interactions and the complainant’s own account of her violation, 282
“restorative justice” alternatives, 737
restricts the authority to decide whether or not a rape has occurred to particular individuals, 280
risk of pitting parents and adolescents against one another, 589
rules of evidence have changed to recognize the law’s discriminating impact on complainants of sexual assault, 611
sentencing judge concern for the wellbeing of the perpetrator and his perceived vulnerability to possible revenge by his wife, 714
sentencing policy in Canada is not sensible or defensible, 708
sentencing reforms, 708–10
sexist stereotypes pervade the law’s understanding of victims of sexual violence, 591
sexual assault, system is woefully inadequate to task of addressing, 267, 269
solitary confinement, grim consequences of, 734
system claims the power to recognize some violations but not others, 297–98
victim impact statements potentially reinforces sexist and racist stereotypes for both the victim and the accused that are entrench in the criminal justice system, 667
victim’s satisfaction with, 697–98

criminal law. See also Garneau Sisterhood; HIV exposure as assaultadjudicated reality vs., 17
disempowers young women’s claims to autonomy, the repressive force of, 569
federal government’s responsibility under s 91(27) of the Constitution Act, 141, 143, 147
feminist anti-violence and antirape activists achieved policy advances in, 249
inability to deal with rape as a social phenomenon, 269
Jane Doe case and section 15 claims involving systemic discrimination in the enforcement of the criminal law, 228
Jane Doe was denied equal protection of the criminal law in violation of her s 15 right to equality under the Charter, 29
law reforms cannot stem the effect of rape myths held by criminal justice personnel who discount women’s experiences of sexual violence, 19
law reform substantially down-grades the offence of rape and unwanted sexual touching since technically they can now occupy the same offence category under section 271, 621
male-centred assumptions about women’s sexuality and morality, 462
male obtuseness is “normal” when the victim was vulnerable due to intoxication, 70
male sexual entitlement has informed the criminal law on sexual assault, 462
male sexual prerogative is elevated over women’s bodily integrity and equality to the discredit of our legal system, 522
men must take “reasonable steps to ascertain consent,” 17
myth that women and children are not credible, 3
negligence standard and defendant’s intoxication, 62
prohibiting sexual violence against a twelve-year-old Aboriginal girl, 128
prohibits all forms of criminal violence, exploitation, and coercion against women and children, 145
prohibits sexual contact with children, be they consensual or not, 570
prohibits sexual touching in violation of the person’s will to be touched, 570
rape myths shape, 541
“reasonable probability” or the “balance of probabilities” standard, 277
sex discriminatory beliefs, its principles are designed to eschew, 12
sex discriminatory beliefs and, 12
on sexual assault reform in 1992, 7
Sisterhood’s legal order is not subsumed by, 291
systemic sex discrimination of police in the enforcement of, 33
treatment of sexual assault committed against Indigenous women and girls, 87
women are not seen as credible in cases of sexual assault, 3
women’s fear that they will suffer further at the hands of the, 4
women’s uncorroborated claims of assault, historical resistance to, 466

criminal liability, 642

criminal penalties, historical review of, 728–33

“criminal sexual psychopaths,” 730

criminologists, 302

“Criteria-Based Content Analysis,” 202

Crossing the Line: Violence and Sexual Assault in Canada’s National Sport(Robinson), 83

Crown disclosure obligations, 214

Crown prosecutors
irrelevant evidence in sexual assault prosecutions, should object to tendering of, 4
“mistake” defence, should insist on a rigorous application of the law governing the, 536–37
probative value of complainants’ testimony must be relied upon if they have not memory of the attack, 536

Cuerrier test of “significant risk of serious bodily harm,” 663. See also R v Cuerrier

Cummings, Joan Grant (National Action Committee), 191

D

Dagenais v Canadian Broadcasting Corporation, 607

Dainard, Philip, 296–97

Dale, Amanda, 36

Danton, Michael (NHL player), 76–77

“date rape drug,” 524

date rape scenario: black woman vs. white woman, 683

Daubney Committee, 708

deaf activists, 177

deaf community, 186

defence counsel
challenge of revised rape shield statute by doing “end runs” around restrictions on sexual history evidence by using third-party and confidential records of therapists or counsellors, 705
private health and counselling records, seek, 26
sexual assault decisions will often use non-legal or social definitions of sexual assault that are entangled with an array of myths and stereotypes that undermine the preamble to 1992 amendments to the sexual assault provisions of the Criminal Code, 142
sexual assault prosecutions, should object to tendering of irrelevant evidence in, 4

“demeanour evidence” in sexual assault
Canadian Judicial Council’s approved model of jury instruction on demeanour, 601
complainant’s rights to privacy, security of the person, and equality, 607
Dagenais v Canadian Broadcasting Corporation, 607

demeanour, ability to perceive or decipher the truth of a state-ment from the, 598

demeanour evidence, reliance on, 594

demeanour evidence, use and misuse of, 597–602

demeanour evidence and assessment of credibility, 600

demeanour evidence as a license to use racist and sexist notions about women to defeat their narratives and dismiss their allegations as untrue, 600
ideal rape victim, 286, 591, 600
judges and lawyers are not taught how to read facial expressions for truth or deceit, 598–99
judges may use demeanour evidence favourably as it pertains to complainants, 602
jurors may be less capable of reading the demeanour of witnesses of a different race, 600
Law v Canada (Minister of Employment and Immigration), 609
lawyers objected to Muslim woman complainant wearing her niqab because they needed to see her face to gage her reactions to their questions, 593–94
L’Heureux-Dubé (Justice): rape mythologies are at play when women are sexually assaulted, 595, 600
Muhammad, Ginnah, 602–4
Muslim women, niqab and the religious and cultural beliefs of a devout, 592
Muslim women must remove their niqabs so that their “demeanour” can be scrutinized, 591
niqab as a security threat and prevents Muslim integration, 593
niqab prohibition and its effects on Muslim women, 602–5
niqab-wearing and the intersecting rights of equality and freedom of religion, 607
niqab-wearing complainant and claim of discrimination on the bases of sex and religion using s 15, s 2(a), s 27, and s 28 of the Charter, 609–10
niqab-wearing complainants, legal arguments for accommodating, 605–10
non-verbal communication and cues, 599
Paruk (Justice) pronouncement on the niqab, 603
people observations are highly subjective impressions, 599
racial profiling cases, 599
R v Lavallee (psychological impact of battering on wives), 599
R v Mills (women’s personal records), 606
R v NS (niqab), 605
studies by Albert Mehrabian, 597–98
Supreme Court and freedom of religion, 608
white supremacy and patriarchy protect some men’s accounts, 600
women complainants face sexist and racist remarks by police, judges, and over-zealous defence lawyers who use questionable tactics to embarrass, violate, and denigrate their character, 595

Derrick, Anne, 491

Derynck, Jessica, 337, 346

Dewar, John (N. Z. Chief Detective Inspector), 56–58, 61

Dewart, Sean (lawyer), 24

Diagnostic Statistical Manual (DSM IV), 366, 420

DiMano, Rosie (Toronto Star), 74

direct indictment, 137

“disAbility,” 177

disabilityism, 539, 687

Disability Rights Movement’s (DRM), 176

disabled women. See also discrimination
Cinderella Allalouf, case of, 182–83
cognitive disabilities, women with, 187
deaf community, 186
disability, social model of, 178–79
disability from male violence, 185
“disabled women” vs. “women with disabilities,” 176
discrimination, poverty, and isolation, long-standing effects of, 188
equality rights in the context of sexual assault, underdevelopment of, 173
“impairments” vs. “disability,” 176, 179
legal system and, 180
myths and stereotypes entrenched in beliefs about all women’s deficits and lack of capacity, 188
myths contribute to the rape and sexual assault of, 175
myth that women living with disabilities are not sexual beings and not sexually active, 174
pregnancy, forced, 186
pregnancy, termination of, 186
prejudice, fear, and stigma associated with, 187
rape mythology, 187
rape myths that say disabled women are not “real targets” of sexual assault, 174
rights of disabled women remain undeveloped and inaccessible, 176
services, complexities of women’s experiences in accessing for, 184
sexual assault, disabled women vs. non-disabled counterparts, 185
sexual assault among women, highest rate of, 13
sexual assault by Dr. Malcomson, 183
when sexual assault charges are “unfounded” by police, or “unproven” in court, they end up with loss of caregivers, institutionalization, forced sterilization, unwanted pregnancy, racism, sexism, deportation, further sexual assaults, and even death, 175
sexual assault experienced at three times the rate of non-disabled women, 181, 186
sexual assault of, is usually unreported, 10, 180
sexual assault of, police disbelieve reports of, 173
sexual assault of, remains largely unaddressed and meaningfully chronicled, 173
sexual histories are fodder for the defence and Crown, 181–82
sexual violence and disability/impairment, research on women’s experience of, 184–85
sexual violence/sexual assault is a result of being devalued, desexualized, and discounted, 173–74
sexual violence survivors are not believed or are not seen as “credible” undergo significant levels of isolation, self-doubt, and reluctance to report or seek support, 187
stereotypes about disabled women’s sexual promiscuity and credibility, 180–81
stereotypes are held by police officers who decide whether a woman’s report will move beyond the investigating officer, 180
survivors with cognitive disabilities, 186
VAW agencies and, 187, 189
violence levels experienced by, 186
voluntary sterilization, 186
women who are disabled are “severed from the sisterhood” because of the characteristics of their impairments, 187–88
women who are disabled or suffer from mental health problems are more likely to see their reports of sexual assault “unfounded” by police, 208
women with cognitive impairments who have been sexually assaulted are viewed as lacking credibility and as poor witnesses, 181
Women with Disabilities Australia, 174–75

Disabled Women’s Network (DAWN), 175, 185

discrimination (discriminatory). See also disabled women; rape myths in trial discourse
beliefs of police, 229, 234
beliefs that masqueraded as “facts,” 502
beliefs that woman are lying about sexual assault, 234
in capital sentencing of rape cases, 679–80
credibility assessments of vulnerable women, women with disabilities, Aboriginal women and inti-mate partners, 516
denial of the benefit of the law, 234
expert testimony about “people” who engage in sexual activity while extremely intoxicated, 536
gay youth, treatment afforded to, 583
harms caused by wrongful unfounding, 237
judges who frankly acknowledge disagreement with rape reforms aimed at protecting women from, 496
legislatures and courts, 463
myths masquerading as legal arguments, 539–40
niqab wearing complainant and the claim of discrimination on the bases of sex and religion using s 15, s 2(a), s 27, and s 28 of the Charter, 609–10
practices of the legal system to the media and the public, 301
of raped women, 302, 305
rape trials, linguistic analysis can reveal, 390
sexism in the criminal law of rape, 585
standard of care of police, 221
stereotypes of female gender/sexuality work especially to disenfranchise women who are Aboriginal, racialized, sex workers, disabled, or who live in poverty, 358
systemic, in the enforcement of the criminal law, 228
systemic sex discrimination by the police in Jane Doe v Metropolitan Toronto (Municipality) Police, 29, 32–33
systemic unfounding of sexual assault complaints, 233
“unfounding” of sexual assault complaints indicates systemic discrimination, 233
victim impact statements have “potential to perpetuate racial, gender, class, and other forms of discrimination that are presently rampant in the criminal justice system,” 697

DNA evidence, 132

doctrine of chances, 548, 551

doctrine of recent complaint, 463, 595

Doe, Jane. See also Jane Doe v Metropolitan Toronto (Municipality) of Police
afterword by, 741–42
as bait by police and her rape was preventable, 27
“Balcony Rapist,” 23, 29, 32, 192, 243, 247
brave advocacy lasted 10 years, 7
daily trial journal and cartoons of the witnesses, 32
legal system, challenged the, 51
police threats to prosecute her for “interfering with an investigation,” 23
The Story of Jane Doe, 24–25, 37
Toronto Police, initiated chain of radical actions against, 23
vindication by a $220,000 damage award against the police and a judicial declaration stating police had violated her right to equality and had been negligent in failing to warn her, 24

Doherty (Justice)
R v C(D): prejudice facing black accused, 552–53
R v Parks: anti-black racism in, 552

domestic violence
child protection reports in, 449
End Domestic Violence, 686
experts that abused women have turned to for assistance, medical attention, counselling, or social supports are policing arms of the law, 438
during the Olympics, 84
safer sex “in the heat of the moment” and, 651
Vancouver’s Battered Women Support Services and, 84

Doob, Anthony, 708

Drew, Paul, 393, 402, 404

DRM. See Disability Rights Movement’s (DRM)

Drug Treatment Court, 429

DSM IV. See Diagnostic Statistical Manual (DSM IV)

Dubé, Claire (The Honourable). See L’Heureux-Dubé, Claire (The Honourable)

DuBois, Teresa, 221–22, 352

Ducharme, Todd (Justice), 510–11

Dufresne, Didi, 346

Duggan (Staff Sgt), 227

Du Mont, Janice, 195, 374

duty of care
about, 215–21
policy reasons to negate, 219–21
requires police to warn women of a danger, 227

Dziekanski, Robert, 51

E

Eades, Diana, 401

Eberts, Mary, 348

EB v Oblates of Mary Immaculate in the Province of BC (Oblates). See also racism
Abella (Justice), sole dissenting voice, 155, 168–69
abuse, devastating harms of institutional, 158
abuse, physical and sexual, 152
abusers had parent-like power, 159
abuse was endemic to the schools for decades as an outgrowth of the school’s basic culture, 165
Bazley principles that the residential school enterprise was racist, 167
Binnie (Justice): “it is the nature of a residential institution rather than the power conferred by the [Oblates] on Saxey that fed [EB’s] vulnerability,” 168
Binnie (Justice): the school would be liable for all tortious acts of its employees, “no matter how remote the wrongdoing from job-created power or status,” 165
church created and oversaw an environment that normalized routine abuse of students, 165
churches took public funding to indoctrinate new souls to be immunized from the harms they caused, 170
defendant institutions evade responsibility for abuses of children in their care, 160
discipline of children was “strict and harsh” and order was maintained “largely through fear and the threat of punishment” including “physical and emotional violence, deprivation, belittling, and intimidation,” 169

EB was sexually abused by Saxey on a weekly basis for five years, 163
individual humiliation and degradation, 158
inequality, systemic relations of, 160
inquiry looked for direct causal links between an individual perpetrator’s official duties and his institutional employers or principals, 159
majority emphatically asserted that it would be going too far to hold the church liable for Saxey’s abuse of EB because that would mean residential school operators would be liable for abuses of children which was deemed “unfair,” 170
majority judgment devoted little or no attention to the history, nature, and dynamics of the institutional enterprises where children were abused, 169–70
majority judgment referred to no secondary sources of any kind, 168
Oblates’ three-part defence against EB’s claims of abuse by Saxey, an employee at the Christie Indian Residential School operated by the Oblates, 163
racism, classism, sexism, ablism, 158
racism, poverty, disability, and sexism were adjudged as irrelevant, 159–60
re-socialization to isolate children from all external community supports and all familial connections to enforce, 157–58
Saxey’s functioned in a culturally genocidal project serving the fiscal interests of the federal government and the fiscal and spiritual interests of the Catholic Church, 166
Saxey’s power and the children’s comparative powerlessness, 166
schools were established to destroy Aboriginal identity in order to reduce governments’ fiscal obligations to First Nations communities and to facilitate settler expansion, 170
Supreme Court affirmed conclusions of trial judge, 165
Supreme Court and vicarious liability of enterprises that managed Aboriginal residential schools, 162
Supreme Court presumed fairness to taxpayers trumps fairness to the lost generations of Aboriginal children, 170
Supreme Court rejected century-old doctrinal formula for determining an employer’s liability for injuries caused by an employee in the course of his/her employment, 160
Supreme Court’s response to compensation claims by Aboriginal men and women who were sexually abused as children, 12
trial judge held the Oblates vicariously liable for Saxey’s assaults on EB, 163–65
white privilege, 167

Eccleston, Miriam, 183

l’École Polytechnique (Montreal), 303

Edmondson, Kindrat, and Brown prosecutions. See also racism
Aboriginal girl (twelve-year-old), the men took turns holding her down and having sex with her on the ground by the side of the road, 115
accused demonstrated callous indifference to her age, to her capacity to consent, and to the issue of consent, 126
accused failed to take “all reasonable steps” to ascertain complainant’s age as required by s 150.1 and therefore were liable to be convicted under s 271(1), 127
accused gave incriminating statement to the investigating RCMP officers, 116
accused reference to complainant as “Pocahontas” invoked wellrecognized, sexualized, and racialized stereotype, 128–29
Attorney General of Saskatchewan and enforcement of sexual assault laws without regard for the race and cultural backgrounds of the complainant or the accused, 127
Attorney General of Saskatchewan elected not to appeal a decision by Court of Appeal in which the court arguably erred in law when interpreting the sexual assault laws, 120–21
Cameron (Justice) instructed the jury on the defence in all sexual assault cases, 140
Cameron (Justice) misdirected the jury on the defence in all sexual assault cases, 140
Cameron’s (Justice) retrial instructions to jury included reference to s 273.2, 117–18
Canadian law has rules of evidence and procedure specifically designed to restrict the admission of extraneous evidence, 113
complainant’s privacy rights and an overt attack on her dignity, invasion of, 132
consent, complainant lacked legal capacity to consent because of her age, 123
consent by the twelve-year-old complainant to “group sex with three adult men in a ditch,” complete absence of evidence of words and conduct as defined by law, 122–23
courtroom, discourse and conduct, 129
Criminal Code, the case undermined the preambles to 1992 and 1997 bills amending sexual assault provisions of the, 139
criminal justice system in Saskatchewan, serious problems with sexual assault cases in, 114
criminal laws prohibit sexual violence against a twelve-year-old Aboriginal girl, 128
errors due to invalid generalizations about male and female gender roles and sexuality; myths and stereotypes, generalizations about the links between sexual activity, gender, race, consent, and personal and social factors, 113
Esau and Ewanchuk (re: consent), 123, 126
evidence, collection and preservation of, 131–33
evidence of personal and sexual history, violation of rules prohibiting the introduction of, 112, 116, 118
evidentiary rules curtailing admission of evidence of collateral facts were often disregarded, 116
facts of the case, essential, 114–16
findings of fact by the judge based on the evidence in the record, other, 127
gender and racial bias and prejudice, 113
jurists engaged in undisciplined use of discretion, and relied on personal views and opinions, 113
jury’s deliberation process, impact of prejudicial myths and stereotypes on, 129
Kovach (Justice), 116
law of consent and its significance for proof of the elements of the offence of sexual assault, confusion on the part of both judge and counsel about, 117
legal proceedings, 116–24
legal professionals’ conduct in sexual assault cases are regressive, 139
“mistaken belief” in consent, defence of, 118–19, 121, 139–40
personal records provisions, 116, 131, 148
police failed to use tools available to record and preserve testimonial evidence by children and other fragile witnesses for use at trial, 112
prosecutorial authority, “oppressive” use of, 119
racial and sexual biases, stereotypes, and irrelevant “facts” in prosecution of sexual assault, 111
racist and misogynist conflict, 138
racist and sexist stereotypes, 128–29, 138
rape kit test, blood sample, and proof of lacerations, bruises, and swollen areas on the complainant’s body, 115–16
rape shield provisions, 121, 131, 148
reasons for decision, accessible, 140–41
recommendation 1: amendment to Criminal Code on legal proceedings of sexual assault cases involving violence against women and children, 144–47
recommendation 2: creation of federal Office of the Sexual Exploitation Auditor to monitor the operation and efficacy of programs and actions taken in relation to sexual assault and exploitation under s 91(27) of the Constitution Act, 147
recommendation 3: creation of federal Office of the Sexual Assault Legal Representative [SALR] to provide legal representation to women and children in sexual assault cases anywhere in Canada, 147–50
recommendations for remedial action, 130–31
retrial of Brown, 121–24
retrial of Kindrat, 118–21
rules of evidence and procedure are designed to exclude ideologies of prejudice and social ignorance, 114
R v Ewanchuk and s 273.2(b) of the Criminal Code applies to an “air of reality” to the defence of mistaken belief in consent, 117–18
s 150.1(4) Criminal Code, 119
s 150.1 or s 273.2 Criminal Code precludes the accused from relying on a belief in consent, 123
s 272(1) (d) Criminal Code, charges laid against the three men under, 116
s 276 and s 278, ignored restrictions imposed by, 116–17
sexual assault, Saskatchewan continues to function in accord with pre-1992 norms of, 139
sexual assault and consent as defined in law, misunderstanding about which facts are material for proof of essential elements of, 112
sexual assault law and current legal standards for the conduct of sexual assault cases, key participants lacked familiarity with, 112
sexual assault laws, erroneous and regressive interpretations of, 119
standards of judicial practice and rules of professional conduct in sexual assault cases, 113
subversive impact of the case, 138–40
Supreme Court of Canada’s interpretation of legal principles and rules within a human rights framework, current legal standards are based on, 112
systemic remedies, 143–44
trial proceedings, multiple errors of law in, 117
verdicts based on fallacious reasoning using invalid premises and evidence of facts not legally material to the issues to be determined, 113, 124–27

Edmonton Police Service, 244, 296–97

Edwards, Donna, 686–87

Elias, Robert, 668

Engle Merry, Sally, 251–52

equality argument and “tit for tat” principle, 544–45, 549–50, 568

equality-based argument, 228–29

equality justification

formal, 553–56

substantive, 556–61

equality-oriented rule of admissibility, 547–50

equality rights
of disabled women, 173
equality claim, 228–34
equality justification, formal, 553–56
as a fundamental human right, 1
of Jane Doe, 24
in New Zealand, 55
of niqab-wearing women, 607
of Olympic women athletes, 85–86
privacy rights and, 26
“reasonable steps” requirement and, 522
s 15 Charter: right to equality, 29, 31, 33
sexual assault as an assault on human dignity and denial of, 670
systemic sexism of police investigations as violation of sexual equality, 250
vs. systemic inequality, 160
of women by the federal government, 143
women’s rights to equality and autonomy vs. proposition that women are presumptively consenting, 536

equal pay for work of equal value, 2

equal protection of the law, women’s demands for, 7

Ericsson, K. Anders, 415–16

Esau, Able Joshua, 500–501

Estrich, Susan, 391

ex-partner
given a first “free” rape by virtue of the Pappajohn defence, but morally culpable for the second rape, 491
men can exploit past sexual history and mistaken judicial beliefs about what reasonable steps are not required if the woman is a wife, girlfriend, or former partner, 488

expert knowledge
abused women are taught to cope better with abusive fathers and husbands, 421
“anger management,” 433
biopsychiatric truth claims, 420
The Cambridge Handbook of Expertise and Expert Performance, 415
Child and Family Services Act, 437–38
child protection agencies, 435
child protection authorities, 435
child protection legislation and legal compulsion of mothers, 430
child protection risk scales, 435
child protection system, 409, 434
control through chemical restraint, 432
credentializing of expertise around male violence against women, 16
Criminal Injuries Compensation Board, 429
Drug Treatment Court, 429
Ericsson, K. Anders, 415–16
expert, who gets to be?, 415–16
“experts” largely self-identify their own expertise with little
regard for how it may be evaluated by those outside their disciplines, 423
expert testimony is unlikely to assist the Crown, 535
Family Court Clinic Assessments, 429, 438–39
flashback on stand, 203, 410–11
Foucault, Michel, 422–25
Freud’s pronounced that women’s stories of sexual abuse were actually fantasies they wish were fulfilled, 417–18
group homes and intake psychological assessment, 432
law and psy-disciplines have an “uneasy relationship,” 425
law maintains its power by re-casting psy-discipline knowledge into legal truths, 424
legal power reinforces the authority of “experts” on the lives of women without questioning or testing those claims, 427
legal system is divorced from any common sense ability to deal with survivors of sexual violence, 411
legal system mirrors dominant dis-courses in society, 413
male biases permeate psychiatry and psychology, 16
male “professionals” describe and define women’s reality in their terms, 441
Mental Health Court, 429
mother’s compliance with psy-discipline regimes out of fear that her child may be removed, 437
patriarchal psy-disciplines to erase male culpability in abuse, 417
politicized front line women’s movement and exposure of psy-legal practices, 449
probation officer’s power to direct women into counselling and assessment, 433
psy- and legal disciplines have been reinventing their narratives to reinforce pathologizing claims about women, 448
psychiatric abuses of women exceed the norm in society, 425
psychiatric assessment, 411
psychiatric drugs prescribed to women coming to residential environments from provincial detention centres, 432–33
psychiatry covers up the victimization of women and female children and exonerates men, 418
psychotherapy theory and the demeaning of women, 416–19
psy-discipline and legal system collusion in violence against women, 444
psy-discipline authority and increased legal power over women in a system that already constructed them as disordered, 448
psy-discipline authority in matters relating to women survivors of violence, 413
psy-discipline claim to expertise involving violence against women simply cannot be convincingly supported, 448
psy-discipline cycle from biological, to psychological, and back to biological explanations of women’s disordered natures, 440
psy-discipline expertise claims are deeply embedded in every stage of legal process and are clearly influencing the thinking of most legal players, 413
psy-disciplines, inherent masculine bias of, 418
“psy-” disciplines and “psy-” “expertise” in legal space of the court-room in sexual assault trials, 409
psy-disciplines distort women’s experiences, 17
psy-disciplines’ dubious claims to expertise about women survivors of violence, 413
psy-disciplines have placed responsibility for women’s oppression, misogyny, male violence, and sexual abuse squarely on the shoulders of females, 418
psy-disciplines have yet to accept that racism, sexism, and poverty shape how people feel and cope, 421
psy-disciplines promote diagnosis and psychopharmacology as “treatment” for sexual violence, 449
psy-disciplines reinforce each other’s power over women, 17
psy-disciplines translate existing legal position on women from a legal to a “scientific” one by invoking the study of psychiatrists and the law reciprocally reinforces the psy-disciplines as “expert” and gives them legal weight, 426
psy-discipline theory is translated into legally mandated action in the lives of women, 414
psy-discipline truth claims about both survivors of violence and the necessity and benefit of psy-interventions, 436
psy-incursions into law for release conditions such as bail, probation, parole, or conditional sentences, 430–34
psy-knowledge, refusal to accord “expert” credential to, 419
psy-legal authority and a women’s sexual autonomy, 437
psy-legal gaze can pathologize women survivors who dare to disclose the violence against them, 434
psy-legal power over the survivor, 433
sexual assault, law and the “psy-” disciplines are profoundly inexpert on, 409
sexual assault victim in Family Court fighting the apprehension of her children, 429
sexually abused woman as potentially dangerous according to “expert” schemas, 435
sexual violence is an issue for “experts” have been fully integrated into popular belief, 428
suppression of relevant experience that could have resolved significant questions before the court, 411
victims of sexual assault can be expected to be pushed to psysystems repeatedly, 429
women as the experts in their own lives, 412, 441
women experience medical, mental health, and legal interventions as sources of “secondary victimization,” 449
women survivors of violence and the power of legal authority, threat of sanction, and psy-discipline intervention and supervision, 434
youth group home as a ward of the Children’s Aid Society, 429

eyewitness identifications, frailties of, 214

F

Family Court Clinic Assessments, 429, 438–39

“family violence,” 177

Fantino, Julian (Toronto chief of police), 36

FARI. See Feminist Action-Research Institute (FARI)

federal government
Constitution Act s 91(27): federal government’s responsibilities with respect to criminal law, 141, 143, 147
failure to take steps to fulfill its constitutional responsibilities for proper interpretation, application, and enforcement of laws prohibiting violence against women and children in Saskatchewan, 150
obligations under international law to promote and advance the equality rights of women in Canada and protect them against violence, 143
“Statement of Reconciliation” that acknowledged its role in the “culture of abuse” within Aboriginal residential schools and a $350 million healing fund to help alleviate the individual and collective harms done, 163

Feldberg, Georgina, 374, 383, 386, 388

Feminism and the Power of Law (Smart), 423

feminist. See also Garneau Sisterhood
challenge of criminal justice response to the harms of sexual violence and conditional sentencing, 723
challenge to conditional sentences, 707
challenge to criminal justice response to the harms of sexual violence and conditional sentencing, 723
challenge to use of rape myths in practice of law and judicial decision-making, 706–7
distrust of conservative ideology, 587
equality-seekers, 414
movement, second-wave, 418
organizations recast as “special interest groups,” 250

Feminist Action-Research Institute (FARI), 738

feminist artistry, 313–30
Accountability (2002), 319
Activism (2002), 318
Camp Coochiching (1999), 320
To Colonize the Moon (2008), 326, 329–30
Ouroborous (2005), 326
porcelain doll artist Vivian Hausle, 322
The Rejection of Pluto (2008), 321, 327–28
Soldiers Aren’t Afraid of Blood (2005), 314
Untitled (1998), 315
Untitled (Flowers, 2004), 325
Untitled (Poverty, 2004), 324
Untitled (Pregnancy, 2004), 323

Feminist Party of Canada, 738

flashback on stand, 203, 410–11

floodgates argument, 165, 170, 220

Foisy (Justice), 519

forced marriages, 586

forensic evidence
collection and preservation, 131–33
secure and preserve it by complainant, 133
specialized training for handling and collecting, 132–33

Foucault, Michel, 422–25

founded sexual assaults. See also police and court processing of sexual assault
number of convictions vs., 632
only 42 percent of cases result in charges and no more than 11 percent have led to a conviction, 633
percentage that result in charges laid against a suspect, 629

Fournier, Pascale, 8

fraudulent
rape charge, 680
sexual assault, 638, 654

Frost, David. See also hockey
charged with twelve sex crime charges and one assault charge (23 August 2006), 74
children were sexually objectified as “women,” 82
coach and agent of NHL player Michael Danton, 76
consensual sex, Witness One was bullied, controlled, manipulated and forced into saying she had, 80–81
contact forbidden with forty women who had been girls (aged twelve to sixteen) in the time period of the alleged offences, 74
courtroom atmosphere involving Judge Griffith and Crown Attorney Adam Zegouras, 81–83
Crown Attorney Adam Zegouras dropped seven charges of sexual exploitation of girls against Frost, 77–78, 81
Crown Attorney Sandy Tse made Witness Two state that the sex she had had was consensual, 79–80
Crown had intimate information about witnesses, 82–83
cult-like relationship in hockey circles, 76
Danton, Michael (NHL player charged with conspiracy to murder Frost), 76–77
gang rapes and sexual abuse committed by junior hockey players, 83
Goffman, Erving, 75
Goodenow, John (hockey player), 75
Griffin (Justice), 79, 81–82
legal system understands the social coercion of the patriarchal nature of sport, and consent, 80
Metro Toronto Hockey League (Greater Toronto Hockey League), 75
misogyny of the hockey world, 82
Ortiz, Steven, 76, 80
players acted as pimps for Frost by luring girls under the guise of promising to be their hockey player boyfriend, 74
players referred to females as sluts, puckbunnies, and gold-diggers, 82
players spoke of girls and women as objects for group sex, 82
police chose not to charge Frost with sexual assault vs. sexual exploitation of the girls, 78
position of trust, authority, and power over the players, 78
prosecutors protected each other and the system by forcing the young women to take the stand as witnesses and calling their violations “consensual,” 73
Room 22, Bay View Hotel in Deseronto, 75
Room 22, Frost moved in with his entourage of teenage players, local girls and large quantities of alcohol, 76
sexist assumptions of judge, 82
sexual exploitation, charged with thirteen charges of, 77
sexual intercourse by six players with one female was not unusual, 82
“total institution” as characteristic of male sports teams, 75–76
trial of former coach and NHL agent for sexual assault against girls (employees, fans, and girlfriends of his players), 11, 73
witnesses’ testimony about Frost and the hockey players, 80
Witness One (forced sex with Frost and various hockey players for six years), 74, 77–83
Witness Two (sexual assault by Frost and players), 77–83
Witness Two’s diary held very inti-mate sexual notations and was given to police, 79

Furlong, John (Vanoc CEO), 85

G

gang rape. See Edmondson, Kindrat, and Brown prosecutions; Frost, David

Gans, Arthur M. (Justice), 514–15, 534

Garneau Sisterhood. See also criminal law; feminist
alternative legal order to the criminal justice system, 267, 272
anti-rape activism, grassroots, 274
anti-rape movement, feminist, 269
call for (heterosexual) men to acknowledge the role they play in perpetuating rape culture, 288
campaigns conducted anonymously and without links to established organizations involving great irreverence and “do it yourself” style of direct activism, 245
crime prevention/risk management, degendered, 254
Edmonton police, racist treatment of Aboriginals by, 297
Edmonton Police Service public advisor, 244–45
Edmonton Police Service refused to release information about the rapist, 255
Edmonton police service’s relationship with Aboriginal people, 296
feminism, third-wave, 245
feminist strategy, second-wave, 245–46
Garneau (neighbourhood), 247–48
Jane Doe case and “sustained collaborative work” of feminist activists, lawyers, experts and judges, 243
loose association of neighbourhood women put up posters, media work and collected tips by email as part of anti-rape activities, 268, 292
McKernan, six “sexual offenses,” 289–90
men’s responsibility for ending sexual violence, 261–62
message put onto lampposts, mail-boxes, bus benches, and fire hydrants, 273
newspaper headlines about serial rapist in Garneau, 267
objective to “expose rape culture and reclaim safe spaces for the women in their communities,” 284–85
police, non-collaborative relationship with, 292
police and media responses to sexual assault includes individualizing and woman-blaming, 243
police call to genderless “residents” to take “safety precautions,” 254
police don’t warn women of serial rapist because women are “hysterical and erratic,” 246
police issued “basic tips” on how to properly secure doors and windows, 255
police response to the Garneau and Aspen Gardens assaults, 249
police warnings address the social body of women as a series of individualized bodies each responsible for protecting their own “stuff,” 256
police warnings are targeted for white and middle-class woman, 258
police warnings construct women as rape spaces and as objects to be taken, 263
poster and media campaign challenging disciplinary and individualizing thrust of police warnings, 245
posters focused attention on men’s behaviour, 295
posters signed by the Sisterhood appeared all over Garneau, 260
posters unmasked the shrouded rapist, 261
posters urged people to “start questioning offenders’ behaviour and not the survivors,” 293
rape, anyone can be a victim of, 278
rape, broad definition of, 280, 288, 300
rape, grassroots response to, 285
rape, it is not necessary to prove, 286
rape, myriad of community responses to, 285
rape, people create their own definition of, 282
rape, subjective vs. objective analysis of, 282, 290
rape, threshold for recognizing, 277
rape affects everyone, not just individual women, 278, 300
rape as a social phenomenon, 281, 289, 300
rape happens because of rapists, 285
rape is a feeling of violation and is not bound to the nature of the act, 286
rape is a personal problem that each woman herself must solve by limiting her own mobility, 256
rape perpetrator is situated in a “spectrum of perpetrators” vs. the arrest and punishment of the rapist, 283–84
rapes psychologically oppress an entire community of women, 278–79
rape victims are always believed, 280, 289
response to rape, 10
risk management and sexual safekeeping are primary governmental technologies for responding to sexual assault, 245, 252
self-defence classes, sexual assault centres and hotlines to campaigns on rape awareness, 269
sexual assault, definition of, 277
sexual assaults exemplify the manipulation of gender-specific fear through the degendered language of risk management, 253
sexual assaults in suburban neighbourhood of Aspen Gardens, 244–45, 253–56
Sisterhood demands police provide women with more information, 293
Sisterhood’s actions as “vigilanteeism,” 260
Sisterhood’s defiant refusal to comply with the disciplinary norms of rape prevention, 263, 265
Sisterhood sees itself as a necessary supplement to the criminal justice system, 291
Sisterhood’s legal order, subjective and informal rules of, 274
Sisterhood’s legal order offers far more potential for social change, 267, 270
Sisterhood’s posters speak back to, undermine, invert, and pervert the framing of sexual violence through risk management dis-course, 261
Sisterhood’s proposed legal order vs. legal order of the criminal justice system, 269, 272–73
Sisterhood’s recontextualization of rape subverts victim-blaming and challenges the message that victims are self-made, 262
Sisterhood used cloak of anonymity to disseminate a highly radical and edgy antirape text, 260
Sisterhood wanted police to arrest rapist in Garneau rapes, 291
space for public discussion and community empowerment creates, 291
substantive rules, 274–77
subversive messages challenged woman blaming, condemned rape culture, and allocated responsibility to men, individually and collectively, to prevent rape, 14
Take Back the Night marches, 269, 301, 754
Teresa DuBois research on police officer training on sexual assault, 247
tips on the rapist and his activities, 291
women’s community-based activism, 243
women should channel their fear into anger, 283
women’s responsibility for rape prevention means that men’s responsibility for sexual violence, 256

gay
sexual relationships, 584
youth and adult men, 578

gender
bias in current law, 541
equality, 4, 244, 250, 258
inequality, 130, 259, 313

gender-based violence and UNIFEM, 183–84

gendered “risk management,” 14

gender sensitivity training, 4

General Social Survey on Victimization (2004), 631

genital mutilation, 2

“gentleman rapist,” 23, 34

George, Pamela (Aboriginal woman killed by white men), 673–74

German bakery, 264

Gibson, James, 391

Girls Who Bite Back (Pohl-Weary), 316

Glass (Justice), 534

Global Forum for Health Research (Mexico City), 386

Globe and Mail, 49, 74, 348

God of the Underworld, 321

Goffman, Erving, 75

Goodenow, Bob (NHL Players’ Association), 75

Goodenow, John (hockey player), 75

Gotell, Lise, 279, 287, 298, 345, 706–7

Gottlieb, Gary (Ropati’s lawyer), 61

Graham, Lyndale Nigel, 533

“granny’s kitsch,” 317–18

Grassroots: A Field Guide to Feminism Activism (Baumgardner and Richards), 264

Gray, Laura, 245–46, 260

Green, Linda, 366

Griffin (Justice), 79, 81–82

Griffith, Jeffrey (Auditor General for the City of Toronto)
Review of the Investigation of Sexual Assaults — Toronto Police Services, 35–37

H

Haines (Justice), 728, 735

Hall, Rachel, 295

Hanger, Art, 675

Hannah-Moffat, Kelly, 718

Hanna Woodbury’s taxonomy of question “control,” 394

Hanson, Professor, 557–58

“harm principle,” 580

Harper government, 251, 259

Haskell, Lori, 615

Hausle, Vivian, 317, 322

health care providers, 361

Henderson, Lynne, 672

Henry (Justice), 30

Herbert, Bob, 2

heterosexism, 337, 412

L’Heureux-Dubé, Claire (The Honourable)
“appellant could not rely on the defence of honest but mistaken belief since he had not taken reasonable steps to ascertain that the victim was consenting,” 524
in context of assault scheme in the Criminal Code, the issue is whether the dishonest act induced another person to consent to the ensuing physical act, irrespective of the risk or danger associated with that act, 641
Court needs to denounce misogynist victim-blaming which not only perpetuates archaic myths and stereotypes about the nature of sexual assaults but also ignores the law, 524
Criminal Code aims at protecting people from serious physical harm, and also protection and promotion of people’s physical integrity by recognizing their power to consent or to withhold consent to any touching, 640–41
defence of “mistake of fact” is no longer to be tested on a purely subjective basis when the charge is sexual assault, 497
Ewanchuk decision: defence of “mistake” had no “air of reality” on Ewanchuk’s facts by reference to the law in s 273.2(b), 501–2, 504
“most women live in fear of victimization,” 604–5
myths and stereotypes entrenched in the Supreme Court skewed the law’s treatment of sexual assault claimants, 624–25
rape mythologies are at play when women are sexually assaulted, 595, 600
rape myths continue to influence all levels of the criminal justice system, from police screening practices, to court processes, to overall rates of conviction, 287
R v Osolin: rape myths suggest that women by their behaviour or appearance may be responsible for the occurrence of sexual assault, 287
R v Seaboyer, “sexual assault is not like any other crime: it is informed by mythologies as to who the ideal rape victim and the ideal rape assailant are,” 286–87, 495
sexual assault is an assault upon human dignity and constitutes a denial of any concept of equality for women, 670
sexual assault is perpetrated largely by men against women, is mostly unreported, and is subject to extremely low prosecution and conviction rates, 670
sexual assault jurisprudence consistent with women’s equality rights, contributions to, 9
sexual assault victims are viewed with suspicion and distrust, 675
“sexual assault victim should not be denied recourse to evidence which effectively rebuts the negative aspersions cast upon her testimony, her character or her motives,” 556

Hill v Hamilton-Wentworth Regional Police Services Board, 50, 216–20, 234

HIV, criminal law with respect to disclosure, 646–47

HIV exposure as assault. See also consensual sex
aggravated assault and aggravated sexual assault prosecutions based on non-disclosure of HIV, 635–38, 640, 644–45, 648, 654–55, 657–59
aggravated sexual assault vs. aggravated assault or criminal negligence causing bodily harm, 644–45
antiretroviral treatment for HIV and AIDS, 649
“condom defence,” 647–48
condom use, there is no legal duty to disclose HIV-positive status with, 647–48
Cory (Justice), 637–42, 650, 651n58–59
Cory (Justice): criminal fraud should be applied to consent in sexual assault cases based on dishonesty, which can include nondisclosure of important facts, and deprivation or risk of deprivation, 639
Cory (Justice): dishonest action or behaviour must be related to obtaining consent to engage in the alleged sexual intercourse and can take the form of either deliberate deceit respecting HIV status or non-disclosure (silence) as to that status, 639–40
Cory (Justice): dishonesty results from some form of deprivation or bodily harm, 640
Cory (Justice): “significant risk of serious bodily harm” test, 641
criminal fraud should be applied to consent in sexual assault cases based on dishonesty, which can include non-disclosure of important facts, and deprivation or risk of deprivation, 639
criminalization of HIV exposure, is it a progressive development in Canadian law?, 649–50
criminalization of HIV non-disclosure as an HIV prevention tool, 650–53
criminalization of HIV non-disclosure as sexual assault, 654–63
criminal liability is generally imposed only for conduct that causes injury to others or puts them at risk of injury, 642
Cuerrier case, subsequent application of, 643–49
Cuerrier test of “significant risk of serious bodily harm,” 663
L’Heureux-Dubé (Justice): Criminal Code aims at protecting people from serious physical harm, and also protection and promotion of people’s physical integrity by recognizing their power to consent or to withhold consent to any touching, 640–41
L’Heureux-Dubé (Justice): in context of assault scheme in the Criminal Code, the issue is whether the dishonest act induced another person to consent to the ensuing physical act, irrespective of the risk or danger associated with that act, 641

HIV disclosure in Canada, criminal law with respect to, 646–47

HIV-positive woman from Thailand who infected her husband, 645–46
indecent assault provisions (revised) changed the definition of “fraud” such that HIV nondisclosure in cases of otherwise consensual sex would be captured, 639
Manitoba Court of Appeal decision: acquittal of accused based on his low viral load at the time of the sexual encounters, 649
McLachlin (Madame Justice): 1983 amendments did not oust the common law governing fraud in relation to sexual assault, and it would be inappropriate for the courts to make broad extensions to the law of sexual assault, 642
McLachlin (Madame Justice): nondisclosure of HIV-positive status to sexual partners should attract criminal liability, 643
oral sex (lower risk sexual activities), uncertainty in the law about, 648
protected sex and lower risk sexual activities, legal obligation to disclose applies with respect to, 647
R v Cuerrier (non-disclosure of HIV status), 19, 569n2, 635n2, 636, 650n55, 663
R v Hutchinson, 663–64
s 265(3)(c) of Criminal Code states that no consent is obtained where the complainant submits or does not resist by reason of “fraud,” 638
Supreme Court of British Columbia: what is “significant risk,” 648
Supreme Court of Canada ruled consensual sexual encounters between PHAs and those who were not aware of the person’s HIV-positive status became criminal assaults, 635
Supreme Court of Canada ruled that disclosure of HIV-positive status is required by the criminal law before a person living with HIV/ AIDS engages in sexual activity that poses a “significant risk” of transmitting HIV, 635

HL v Canada, 151n1, 152n5, 157

hockey. See also Frost, David
Canada’s Hockey Summit (2010), 85
coaches and their players enact their masculinity through sexual assault and abuse of young female girlfriends and fans, 11
Furlong, John (Vanoc CEO), 85
Goodenow, Bob (executive director of NHL Players’ Association), 75
hyper-masculine courtroom atmosphere mirrors sexist world of junior hockey, 11, 73
James, Graham (coach who pled guilty to 350 charges of sexual assault of Sheldon Kennedy), 76
male privilege and a culture of sexual violence against women, 84
male violence in hockey and violence against women, 84
Middlesex-London Health Unit (London, Ontario), 83–84
players lured girls to their hotel room and then insisting they have sex with multiple partners, 74, 741
Purcell, Laura (doctor), 83
rape culture of Canadian hockey, 74
“Violence in Hockey” symposium (Middlesex-London area), 83–84

homosexuality, 542n5, 582. See also gay; lesbians

hospital-based social workers, 361

house arrest. See conditional sentencing

The House of Lords, 50

I

“ideal” offender, 672

“ideal” rape victim, 286, 591, 600

“ideal” victim, 671–72

identification cases, 543, 550

immigrant women, 288, 308, 310, 363

Improvements to Sexual Violence Legislation in New Zealand (New Zealand Ministry of Justice), 67–68

indecent assault provisions (revised), 639

indemnification of the victim, 727

Indigenous women and girls. See also Aboriginal(s)
Aboriginal women are considered “prey” and systemic racism of perpetrators leads to targeting of racialized women, 539
abuse of power and discretion, 106–7
addiction to drugs, 102
alcohol abuse, pattern of, 102
authority, control, and acts of violence, 97
Brown, Lorne (sexual assault of twelve-year-old girl), 90
Buckner, Vanessa, 99–100
Campbell, Maria (elder), 90, 94–95, 99, 103, 107–8
Campeau, Priscilla, 89–90, 95, 99, 103
Canadian justice is often viewed as a part of that colonial violence, 109
Canadian law does not effectively address the silencing, sexual assault, and murder hundreds of Indigenous women, 89
case 1: Cree girl (twelve-year-old) reported sexual assault by three men to RCMP, 90
case 1: critical Indigenous analysis, 93–94
case 1: relevant facts, 90–91
case 1: what is not relevant, 92–93
case 2: critical Indigenous analysis, 98–99
case 2: David William Ramsay charged with ten offences involving aggressive sexual assault, breach of trust, and intimidation of young girls under eighteen, 95–96
case 2: relevant facts, 97
case 2: what is not relevant, 97–98
case 3: critical Indigenous analysis, 102–3
case 3: Gilbert Paul Jordan used alcohol to have sex with Vanessa Buckner who died of acute alcohol poisoning, 100
case 3: relevant facts, 100–102
case 3: what is not relevant, 102
case 4: critical Indigenous analysis, 106–7
case 4: Indigenous woman sexually assaulted when age fourteen by Jack Ramsay (former police officer), 103–4
case 4: relevant facts, 104–5
case 4: what is not relevant, 105–6
crimes against, 10
crimes understood and judged by Indigenous laws, 87
criminal law’s treatment of sexual assault committed against, 87
drinking orgies and “consent,” 102
Edmondson, Dean Trevor (sexual assault of twelve-year-old girl), 90
Edmonton Aboriginal women and sex trade workers, murders and disappearances are attributed to living a high-risk lifestyle, 257
Edmonton police, racist treatment of Aboriginals by, 297
Edmonton police service’s relationship with Aboriginal people and the disappearance of thirty-two Aboriginal women since the 1980s, 296
equal benefit and protection of the law is farcical, 89, 99
floodgates argument, 165, 170
forced sex, 91
gender-based violence of, 184
Indigenous female children and youth are vulnerable to systemic and personal violence, 99
Indigenous peoples, dehumanization of, 88
juvenile sex trade workers living on the streets, 97–98
Kindrat, Jeffrey Chad (sexual assault of twelve-year-old girl), 90
Kovatch (Justice), 91
Lindberg, Tracey, 89–90, 96, 100, 104
Neil Stonechild froze to death after police dropped him off on the outskirts of Saskatoon on a bitterly cold prairie night, 297
pedophilia vs. sexual assault, 93
police officer states that the twelveyear-old girl “might have been the aggressor,” 94
position of trust with full knowledge of children’s and youth’s circumstances, 97
post-traumatic stress disorder, 91, 105
power, crime of, 107
power imbalance and racism, 94, 98, 105
predatory behaviour (hunting) towards Indigenous women, 103
preying on women with addictions and in dire financial circumstances, 100
racialization of the children, 98
racialized and sexualized violence, 99
racism, crime of, 107
racism and child sexual assault, 94
sex for money from minors, 97
sexual and physical assault with explicit and implicit threats, 97
sexual assault, individual and collective experiences of, 88
sexual assault of, as an extension of colonization, 11
sexual assault with a weapon, 103
sexualization of a child and the dehu manization of a person, 93
sexual violence against, 87
shame and shaming in the Indigenous community, impact of, 107
shaming girls with details of previous sexual activities, 93, 98
spirits, spirituality, language, and cultures are unrecognized or unrecognizable, 108
stereotypes of Indigenous women remain unaddressed, 103
stories of Cree-Metis (Neheyiwak) laws, 90
trauma of sexual assault, 88
victims characterized as drug addicted sex trade workers from disadvantaged backgrounds, 98
victim’s impact statement, 105
victims paid to drink themselves to death, 103

international human rights law, 145

International Olympic Committee, 86

International Women’s Day
funding sources for conference, 9
Jane Doe conference, 4
organizations represented at conference, 9
“Sexual Assault Law, Practice and Activism in a Post Jane Doe Era,” 8
University of Ottawa, Faculty of Law conference, 1, 5, 8

Israel, Pat, 175

J

Jacobi v Griffiths, 151, 162

jail-house informant’s evidence, 214

James, Graham (coach guilty of sexual assault of Sheldon Kennedy), 76

Jane Doe’s Coffee-Table Book About Rape, 334

Jane Doe v Metropolitan Toronto (Municipality) Police. See also Doe, Jane
activism behind the litigation effort and the court’s judgment in, 5
Auditor General for the City of Toronto and a review of Toronto Police practices regarding sexual assault investigations, 35, 37
The Auditor General’s Follow-up Review (2004), 201
Audit Reference Group (Jane Doe Social Audit), 35
“Balcony Rapist,” 23, 29, 32, 192, 243, 247
Charter s 7: right to security of the person was violated, 29, 31, 33
Charter s15: right to equality, 29, 31, 33
Cornish, Mary (lawyer), 31
Court File No 21670/87, 39–45
“duty to warn” theory, 30–31
Fantino, Julian (chief of police), 36
Henry (Justice), 30
Jane Doe had been used as bait by police and her rape was preventable, 27
Jane Doe’s brave advocacy lasted 10 years, 7
Jane Doe’s daily trial journal and cartoons of the witnesses, 32
Jane Doe vindication by a $220,000 damage award against the police and a judicial declaration stating police had violated her right to equality and had been negligent in failing to warn her, 24
Kerr (Justice), 27
legal landmark, first, 25–27
legal landmark, second, 27–31
legal landmark, third, 31–35
MacFarland, Jean (Justice), 25, 30, 32–35
MacFarland’s one-hundred page judgment, 33–35
“male sexual violence operates as a method of social control over women,” 33
misogyny and police failure to believe the first three raped women, 27
Moldaver (Justice), 31
police appeal was dismissed, 30
police are responsible for unprofessional, incomplete rape investigations, 33
police disbelieved women and occurrence reports described women as liars and as fantasizers, 34
police discretion, abdication or abuse of, 30
police failed to see rape as violent crime, 34
police had a legal duty to issue warning, 294
police held accountable for systemic sex discrimination in their enforcement of the criminal law, 32–33
police internal reports showed long-standing patterns of sex discrimination by police processing of rape reports, 33
police myth that “women will become hysterical and the rapist will flee the area,” 23
police occurrence reports ascribed “sexual gratification” as motive to the offence, 34
police operated on basis of sexist stereotypes, 34–35
police responsibility, legal theories of, 31
police threatened women with charges of mischief for falsely reporting rape, 34
police threaten women with criminal charges if they follow up on their assault report, 33
police were found liable for failing to warn a potential victim of a crime, 33
rape “is an act of power and control rather than a sexual act; perpetrators terrorize, dominate, control, and humiliate their victim; it is an act of hostility and aggression,” 33
rape was conceptualized in a feminist manner, first time that in a Canadian court, 33
rapists are ordinary men who operate within their comfort zones, 23
Review of the Investigation of Sexual Assaults (1999), 200
The Review of the Investigation of Sexual Assaults: A Decade Later (2010), 201
Review of the Investigation of Sexual Assaults — Toronto Police Services, 35–36
right to stay in courtroom throughout her rapist’s preliminary inquiry, won, 25, 27
sex discrimination and negligence in failure to warn, 14
sexist language and concepts, questioned, 23
Sexual Assault Audit Steering Committee, 36–37
sexual assault evidence kit, 28, 37
Shamai (Justice), 27
statement of claim details numerous systemic failures of police, 29
statement of claim: duty of care requirement by police to warn women who were identifiable potential victims of the rapist, 28–29
statement of claim: police relied on sex discrimination regarding women and rape in sexual assault investigations, 29
systemic sex discrimination by the police, 32–33, 228
systemic sexism in investigations of sexual assault complaints by police, 247
systemic sexism of police investigations are a violation of Charter sexual equality, 250
three legal landmarks achieved, 10
Toronto Police Services Board dissolved the Sexual Assault Audit Steering Committee, 37
Toronto Police threatened to prosecute her for “interfering with an investigation,” 23
unequal protection under the Charter of Rights and Freedoms, 228
Ursel, Susan (lawyer), 31
women’s rights, constitutional violations of, 35
women were used as ‘bait’ to catch a predator, 34–35

Jiwani, Yasmin, 341

Johnson, Holly, 723

Johnson, Rebecca, 331–33, 338–40, 342–50, 352–53

Johnston, Meagan, 345

Joint Committee of the Senate and the House of Commons on Capital and Corporal Punishment and Lotteries, 730

joint trial of co-accused, 134–35

Jordan, Jan, 54, 198, 246

judges
interpretive task demanded by s273.2(b), courts and judges persist in ignoring or misinterpreting the reasonable steps requirement, 494
and lawyers are not taught how to read facial expressions for truth or deceit, 598–99
male judges minimize harm suffered by Aboriginal women, 685
misogynist victim-blaming by the presiding judge, 524
rape mythologies are more determinative than the evidence, decisions on complainants’ incapacity suggest, 513
in sexual assault decisions will often be based on a non-legal or social definitions of sexual assault that are entangled with an array of myths and stereotypes that undermine the preamble to 1992 amendments to the sexual assault provisions of the Criminal Code, 142
systemic perpetration by men against unconscious women, remain willfully blind to, 535
in UK frankly acknowledge that they disagree with reforms aimed at protecting women from discriminatory practices, 496
use of demeanour evidence as it pertains to complainants, 602
violent coercion by men who propose that they were “mistaken” as to women’s consent, have high levels of tolerance for, 492
who try cases without a jury must provide reasons that record their findings of fact, the basis for those findings of fact, and the rationale for their decision in the case, 136

jury
demeanour readings of witnesses who are of a different race, 600
instructions to educate jurors about the prevalence of sexual assault in society and how rape is not an aberration or committed only by a “sick” individual, 568
trials produce verdicts but not reasons for their verdicts, 138, 142
warnings, mandatory, 214

K

Kamloops v BC, 216

Kanin, Eugene, 204–6

Kapur, Ratna, 363

Karaian, Lara, 260

Kelso, Megan, 316

Kennedy-Smith trial, 544

Kerr (Justice), 27

Kindrat, Jeffrey Chad, 90, 118–21

Kiss Daddy Goodnight (Armstrong), 443

Kleinhans, Martha-Marie, 271, 273

Kobe Bryant trial (2003), 3

Koss, Mary, 615

Kovatch (Justice), 91

Krahé, Barbara, 487, 496

L

Laskin (Chief Justice, Supreme Court of Canada)
Attorney General of Canada has exclusive jurisdiction under s 91(27) of the Constitution Act to prosecute all federal offences, 144
R v B(R) and question of whether sexual assaults occurred, 549
s 2 of the Criminal Code has been amended for concurrent federal–provincial jurisdiction in the prosecution of terrorist offences, 144

Law Commission of Canada (LCC)
Restoring Dignity: Responding to Child Abuse in Canadian Institutions (Restoring Dignity), 155–57, 163

Law Reform Commission, 578

Law v Canada (Minister of Employment and Immigration), 609

LCC. See Law Commission of Canada (LCC)

LEAF. See Women’s Legal Education and Action Fund (LEAF)

legal aid funding, 238

legal pluralism, 271

lesbians, 302, 363, 585. See also homosexuality

Levan, Elizabeth, 597

Light, Linda, 195

Lindberg, Tracey, 8, 89–90, 96, 100, 104, 336

Locking up Natives in Canada: A Report of the Committee of the Canadian Bar Association on Imprisonment and Release (1988) (Canadian Bar Association), 551–52

loneliness, 105, 153, 306

loss of self-esteem, 105, 594

lower risk sexual activities (oral sex), 648

Lucas, William J. (Ontario coroner), 182

M

Macdonald, Roderick A., 271, 273

Macdonald, Sir John A. (Canada’s first Prime Minister), 729

MacFarland (Justice, High Court of Justice, Divisional Court of Ontario), 25, 30, 32–35
Charter s 7: right to security of the person, 29, 31, 33
Charter s 15: right to equality, 29, 31, 33
equality-based argument, 228–29
Jane Doe case, 30
judgment in Jane Doe case, 25, 33–35
“male sexual violence operates as a method of social control over women,” 33
police occurrence reports ascribed sexual gratification as the motive to the offence, 34
rape defined “as an act of power and control rather than a sexual act; perpetrators terrorize, dominate, control, and humiliate their victim; it is an act of hostility and aggression,” 33
“simplistic, superficial, irrelevant and generally uninformed” reasons of Cst Moyer and Staff Sgt Duggan, 227
“women living in the area would become hysterical and panic and their investigation would thereby be jeopardized,” 294

MacKinnon (Justice), 530–31

Malcomson (doctor), 183

male. See also men
adolescents/adult women couples, 578
biases permeate psychiatry and psychology, 16
centred assumptions about women’s sexuality and morality and about male sexual entitlement have informed the criminal law on sexual abuse, 462
control of female sexuality throughout history, 586
culpability in abuse, patriarchal psy-disciplines exonerate, 417–18
judges minimize the harm suffered by Aboriginal women, 685
justices of the Supreme Court continued to describe the “mistake” defence as if nothing had happened in terms of legislative change, 497
obtuseness is “normal” when the victim was vulnerable due of intoxication, 70
privilege and a culture of sexual violence against women, 84
“professionals” describe and define women’s reality in their terms, 441
sex drive renders men blameless for their actions, 626
sexual violence as an abuse of power enabled and rationalized by systemic sexual, racial, class, and other inequalities, 154
sexual violence operates as a method of social control over women, 33
violence, psychological trauma suffered by victims of, 4
violence against women, 15–16, 264, 364, 535
violence in hockey and violence against women, 84

Manitoba Court of Appeal, 504, 638n10, 649

Marcus, Sharon, 263

marital exemption rules, 390

marital rape, 594–95

Marshall, W. L., 477

masculine entitlement, culture of, 535

Mazurok, Katherine, 333, 345

McCusker, Claire, 603

McGregor, Margaret, 374

McLachlin (Madame Justice), 162, 497, 500, 548
amendments of 1983 did not oust the common law governing fraud in relation to sexual assault, and it would be inappropriate for the courts to make broad extensions to the law of sexual assault, 642
Criminal Code consent must be voluntarily given by a person capable of consent and must be ongoing, subject to revocation by the complainant, 516
men’s “mistake” defence where women are unconscious “depends … on dangerous speculation, based on stereotypical notions of how drunken, forgetful women are likely to behave,” 536
non-disclosure of HIV-positive status to sexual partners should attract criminal liability, 643
“reasonable steps” requirement barred a potential “mistake” claim by the accused, 497, 503, 509–10

MCVI. See Mouvement contre le viol et l’inceste (MCVI)

“Measuring Violence Against Women,” 702–3

medical doctors and sexual abuse in Ontario
barriers to complaint of sexual misconduct, 454–58
biochemical, phallometric, psychological, and physiological testing, 476
burden of proof, civil standard of proof requires proof “on the balance of probabilities,” 471
burden of proof, CPSO’s criminal standard of, 471–72, 481
College of Physicians and Surgeons of Ontario (CPSO) and Zero Tolerance of sexual abuse, 451
complainant’s medical records are collected regardless of possible prejudice to the complainant contrary to the Act, 460
complaints committee and discipline committee, 454–55
complaints committee uses quasicriminal evidentiary standards, 461–62
complaints of physician sexual misconduct, ninety-nine percent were dismissed, 456
complaints regularly were “resolved” without ever having been referred to the complaints committee for investigation, 459
complaints that make it to adjudication by the discipline committee have independent corroboration of the complainant’s accusation although there is no such requirement under the Act, 481
corroboration, forms of, 464–66
corroboration requirements, 462–63
CPSO fails systematically to respond to mandatory reports, 455–56, 481
CPSO must ensure that the letter and spirit of the legislative provisions are implemented by staff, by all committee members, and by all disciplinary panels, 481
CPSO v Abelsohn, 470–71
CPSO v Wyatt, 468–69
criminalizing the disciplinary process, 471–72
Deitel case, 474
determinations of admissibility, credibility, and probity at the informal stage of a complaint constitutes a form of preliminary hearing not authorized by the Act, 461
disciplinary decisions are over-represented by psychiatrists who have abused their patients, 473
disciplinary proceedings pay undue attention to impact of disciplinary proceedings on the doctor’s reputation and economic situation, 472–73, 481
disciplinary response of the College of Physicians and Surgeons to women’s reports of sexual assault by doctors, 451
discipline committee decisions (19932005), 462–72
discipline committee decisions that explicitly refer to complainant’s third-party records and question the stability and credibility of the complainant without any evidence, 473
discipline committee panels often demonstrates unwillingness to apply the Act vigorously and appropriately, and ignore CPSO policies, criminalizing the disciplinary process to protect the accused doctor, 481
discipline committee penalties impose a requirement of psychiatric therapy on the abusing physician as a condition of returning to practice, 478
Dobrowolski case, 475
expert witnesses (acting on behalf of accused doctor) is allowed to pathologize the complainant, 481
Gabrielle case, 465n39, 473n62, 474
Heath case, 473n62, 474, 478n83
Im case, 476
investigatory standards were abandoned in 1997, 459
investigatory team of women with experience and commitment to issues of sexual abuse was dismissed, 460
Jagoo case, 474
Legislation, avoidance of provisions of the, 466–71
Levy, David (doctor), 468
Markman case, 476–77
Nagahara case, 475
obligations to the public ignored, 481
orders prohibiting the physician from seeing women patients ignore the possibility that physician may engage in abusive behaviour with male patients, 479
psychiatric tests used to identify male sexual deviance are not scientific or respectable, 477
psychiatrization of complainants to discredit them and exonerate the abusing physicians, 454, 475
“Psychological Evaluation in Sexual Offence Cases” (Marshall), 477
Psychotherapists’ Sexual Involvement with Clients: Intervention and Prevention (Schoener et al.), 478, 480
Regulated Health Professions Act(1993) implemented zero tolerance of sexual abuse, and imposed mandatory license revocation as the penalty for the most serious cases of abuse, 452–54
sexual abuse is abuse of power and constitutes violence against women and children, 480
sexual abuse of patients is not inhibited by either education nor psychotherapy, 480
supervisory models to prevent continued sexual abuse and the incompetent health care fail, 479
task force on the sexual exploitation of patients and sexual abuse by doctors, 451–52
third-party supervisory monitoring, and re-education as a means of lifting license suspension, 479–80
Williams case, 474

medicalization
of rape as “illness,” 16
of sexual assault, 357, 409

medicalized regimes for “treating victims,” 252

medical records. See also Sexual Assault Evidence Kit
CPSO use contrary to the Act, 460
forced production of complainants’, 3
Sexual Assault Evidence Kit and, 375

Medusa myth, 326

Mehrabian, Albert, 597–98

men. See also male
convicted of sexual assault of Aboriginals, 714–16
legal narratives portray men convicted of rape as easily governed by therapeutic management of their diagnosed sexual deviance disorders or poor cognitive capacity, 712
prey upon women who are drunk, drugged, or asleep, 483
who are breadwinner husbands and fathers are deemed undeserving of incarceration through the evocation of class and gender subjectivities, 717
who are poorly educated and unsophisticated men also needed to be protected from the dangers of imprisonment, 722
who are professionals are often treated with leniency because of “devastating financial and psychological impacts of conviction,” 721

“mental disabilities,” 177

mental health issues, 306, 420

Metro Toronto Hockey League (Greater Toronto Hockey League), 75

Middlesex-London Health Unit (London, Ontario), 83–84

Mill, John Stuart, 579

Miller, Karen Lee, 374

Minow, Martha, 671, 698–99

misogynist
beliefs used by men to claim their moral innocence, 490
bias related to sexual assault, 130
Bill C-49’s “reasonable steps” requirement vs. belief in consent based on self-serving misogynist beliefs, 492
community beliefs and assumptions about sexual assault, 143
conflict invoked by counsel and judges using racist and sexist stereotypes, 138
“honest mistake” defence, men claim their moral innocence using self-serving and misogynist beliefs in, 490
police officers, 34, 200, 234
police sexual assault investigators trained using materials with misogynistic assumptions and stereotypes, 222
psy-disciplines erase male culpability in abuse and ensure that men’s dominant position in society, 417
victim-blaming by the presiding judge, 524

“mistake of fact” defence, 483
appeal courts are setting limits on the use of, 526
L’Heureux-Dubé (Justice): defence of mistake of fact is no longer to be tested on a purely subjective basis when the charge is sexual assault, 497
Lucinda Vandervort and interpretive conflict vs. “honest mistake” defence, 490–91
man’s recklessness or intoxication cannot be used to explain his “mistake” regarding consent as per s 273.2(a) of the Code, 517
for men who proceeded to have sexual intercourse with sleeping or passed-out women, 17
men with predatory intent who drug women should be absolutely barred from their disingenuous claim to “mistake,” 538
rape myths and sex stereotypes about men’s “mistakes,” 502
should be barred where the defence is solely based on conjecture as to “mistake” as opposed to evidence of actual reasonable steps, 537
Supreme Court of Canada: common law recognizes a defence of mistake of fact which removes culpability for those who honestly but mistakenly believed that they had consent to touch the complainant, 276

Mitchell, Allyson, 260

Moldaver (Justice), 31

Molloy (Justice), 532

Montello, Frank (lawyer), 726–27

Montreal Massacre, 248, 303

Monture-Angus, Patricia, 689–90

Morissette, Alanis, 348

Mouvement contre le viol et l’inceste (MCVI), 307, 311

Moyer (Cst), 227

Muhammad, Ginnah, 602–4

Murray, Suellen, 174

Myhr, Terri, 195

The Myth of Women’s Masochism, 419

myths
about women, various, 625
black rapist, 680–81
help men individually and as a class to rationalize their sexual abuse, their own “natural” sexual aggression or sexual opportunism, 625
judges’ willingness to accept “mistake” defences when the complainant is unconscious, 483
lynching by black men, 681
prostitutes are seen as blameworthy, 676
racialized people, especially black and Aboriginal men, are inherently dangerous and violent, 674
rape is committed by men who are strangers, not those men who women know and trust, 533
sexual abuse is committed only by deviant or disordered men, 475
in sexual assault cases impact similar fact adjudication, 558
women and children are not credible in the sexual assault area of criminal law, 3
women are not reliable reporters of events, 558
women are presumed to be guilty of manufacturing their rape unless they can prove themselves “innocent,” 675
women are prone to exaggerate, 558
women “cry rape” in the morning, when they come to regret their poor judgment of the night, 536
women falsely report having been raped to get attention, 558
women lie about being raped, 558, 675
young women freely “consent” to sexual contact with adult men, 569

N

Nahanee, Teressa, 486–87

Nannini, Angela, 181, 186

National Council of Women of Canada, 732

National Crime Victimization Survey (NCVS), 614–15

National Network to End Domestic Violence, 686–87

Native Women’s Association of Canada, 8, 686

NCVS. See National Crime Victimization Survey (NCVS)

“negligent investigation” R v Hill, 13

neo-liberal
crime-prevention strategies, 252
governance, 244–45, 251, 256, 258
sexual citizenship, 287

New Zealand. See also Nicholas, Louise
abuse of power by police and public demand for accountability, 53
affirmative action measures for women, 55
Bazley, Margaret (Dame), 64
Commission found 313 complaints of sexual assault made against 222
police officers (1979 to 2005), 64
Commission of Inquiry into Police Conduct, 63–64
consent to sexual activity, 68
due process rights of the defendant in sexual violence cases area obstacles to the jury fully and fairly appraising the facts, 70
equality for women is not contained in the constitution, 55
gender equity issues, lacks jurisprudence around, 55
Gottlieb, Gary (Ropati’s lawyer), 61
Law Commission and informing jury of prior convictions of an accused person and allegations of similar offending on their part, 66
Ministry for Women’s Affairs, 68
Ministry of Justice and Improvements to Sexual Violence Legislation in New Zealand, 67–68
“non-consensual sex” vs. “consensual but unwanted sex,” 70
“non-consensual sex” vs. “real rape,” 54
police believe that high proportions of sexual violence complaints are false, 54
police officers in uniform have sex with vulnerable women, 54
predatory male sexuality, the burden and cost of managing it has been placed on women exposed to it, 70
rape, stereotypical definitions of, 54
rape shield laws, 68
resistance of NZ lawyers, judges, and media to women’s accounts of rape, 11
right to be free from discrimination on the grounds of sex, 55
section 128 of the Crimes Act 1961 on male sexual behaviour and male obtuseness, 70
sexist myths and assumptions by New Zealand Police, 54
sexual abuse, support services for survivors of, 68
sexual assault cases, adversarial system of justice vs. prosecutorsand judges for, 68
sexual offences, difficulty in prosecuting, 63
sexual offences, low reporting and conviction rates for, 54, 67
sexual violations vs. rape or sexual assault, 70
States Services Commissioner and audit of police culture, 65
Taskforce for Action on Sexual Violence, 67
Tea Ropati (former rugby league star) acquitted of six offences including rape and unlawful sexual connections, 61–63, 70
Te Ohaakii a Hine-National Network Ending Sexual Violence Together, 67
young Maori female complainant attacked by Malcolm Rewa’s, 54

New Zealand’s Jane Doe. See Nicholas, Louise

Nicholas, Louise. See also New Zealand; sexual assault
audit of police computer systems uncovered five thousand pornographic images, 59, 64
baton rape, 56–57
Brown, Sam (police officer), 56–58, 61
case went to trial three times, 57
Clayton, Trevor (police officer), 56
complainant evidence was not admitted, 61
criminal trials (three) involving Shipton and Schollum, 59–61
depositions hearing, 57
Dewar, John (Chief Detective Inspector), 56–58, 61
Dewar got Nicholas to sign a state-ment he had drafted, 58
first trial involved a woman from Australia and group rape by police officers including a police baton, 59–60
formal complaint laid (1992), 56
Operation Austin seized Shipton’s journals, 56
police officers testified that they had consensual group sex with her, 58
public outrage over three trial verdicts, 61
rape, account of various rapes by police officers and police baton, 56–57
Rickards, Clint (police officer), 56–60, 63
Schollum, Bob (police officer), 56–60, 66
school guidance counsellor, Nicholas confided in her, 57–58
second trial involved Nicholas and police officers Rickards, Schollum, and Shipton, 60
sexual assaults committed against her, efforts to criminally prosecute three police officers for, 53
Shipton, Brad (police officer), 56–61, 66
third trial involved another woman and police officers Rickards, Schollum, and Shipton who handcuffed her and violated her with a bottle, 60
three women independently alleged pre-planned group rape, including violation with objects by police officers, 61
women came forward with accounts of rape by officers Schollum, Shipton, and Rickards, 58

niqab. See also “demeanour evidence” in sexual assault
demand for Muslim women to undress in order to testify obscures the truth, 19
“demeanour” evidence, questions about the utility of, 18
lawyers objected to Muslim woman complainant wearing her niqab because they needed to see her face to gage her reactions to their questions, 593–94
Muslim women must remove their niqabs so that their “demeanour” can be scrutinized, 591
prohibition and its effects on Muslim women, 602–5
racism and misogyny occur when rights to religion and culture are claimed by women, 19
religious and cultural beliefs of a devout Muslim women, 592
as security threat and prevents Muslim integration, 593
wearing and the intersecting rights of equality and freedom of religion, 607
wearing complainant and the claim of discrimination on the bases of sex and religion using s 15, s 2(a), s 27, and s 28 of the Charter, 609–10
wearing complainants, legal arguments for accommodating, 605–10
wearing women as complainants, 15

“NO means NO” concept, 3

non-consensual
sexual relations, 587
sexual touching, 538
non-consensual sex, 54, 70. See also consensual sex
contact, 18
relations “have always been criminalized,” 587
“similar fact” evidence should be presumptively admissible in sexual assault prosecutions, 18
stereotypical definitions of rape and, 54
vulnerability of women with disabilities, Aboriginal women, and of course intimate partners to harm from, 516

“non-consent” as demonstrated by violent resistance, 463

non-verbal communication and cues, 599

normative sexual subjectivity, 252

Northwest Territories Court of Appeal, 500

Nunavut Court of Appeal, 507, 517, 519

O

Oblates. See EB v Oblates of Mary Immaculate in the Province of BC (Oblates)

Odette, Fran, 338

Ultimate Guide to Sex and Disability, 175

Oliver, Michael, 178

Oliver Zink Rape Cookbook, 34

Ontario Child Welfare Eligibility Spectrum, 434

Ontario Court of Appeal, 502, 696

Orenstein (Professor), 567

Ortiz, Steven, 76, 80

Otherworld Uprising (Boyle), 317

Ottawa Sun, 49

P

Parker, Andrew, 202

Parnis, Deborah, 374

partner abuse, intimate, 177

Paruk (Justice), 603

past sexual conduct of women, 3

past sexual history, 374, 463, 488

Pate, Kim, 347

Pate, Madison, 347

paternalism, 180, 358, 684

patriarchal power, 425, 441

pedophilia, 542n 5

PEI Supreme Court, 522

Perseus Slaying Medusa (story), 321

“Persons Case,” 1

Peter, Tracey, 298

Petersen, Cynthia, 24

phallocentric

beliefs of men, 488

script, 483

phallometric testing, 476–77

plea bargain, 280

Plint case, 157, 159

Pohl-Weary, Emily, 316

police and court processing of sexual assault. See also Criminal Code; founded sexual assaults; rape myths in trial discourse; sexual assault; Statistics Canada
analysis of foreseeability of harm, causation, and compensable damages, 225
Anns analysis, 217, 225
Anns test (duty of care), 220–21
Anns v Merton London Borough Council, 216
“any potential action is best brought not by one woman alone, but by a group of women, acting together, each of whom can demonstrate that she was subjected to similar treatment,” 230
attitudinal harm, 236
The Auditor General’s Follow-up Review (2004), 201
Baeza, John (detective), 204, 206
“Baeza False Report Index,” 206, 222, 232
Baeza’s specific interview techniques to identify women who are supposedly lying, 206–8
barriers erected by police and defence counsel, 613
barriers to justice, 622–26
benefit, imposition of, 234–36
benefit, withholding a, 233–34
biased assumptions in assessing credibility of women’s reports of sexual assault, 191
causal connection between the breach and the damages so caused, 216
causation, proof of the element of, 224–25
causation analysis of a negligence claim vs. proceeding only on equality grounds, 235
Charter, equality claim under the, 228–34, 239
Charter, s 24(1): court can grant any such remedy as the court considers appropriate and just in the circumstances, 237
Charter claims and access to justice, 237–38
Charter rights of a victim for protection of her safety, privacy, personal autonomy and dignity, 219
claim for wrongful “unfounding” under s 15 Charter, 14
compensable damages, 216, 225
compensable harm, convincing the court of, 222–24
conditional sentences (house arrest) for sex offenders, 613
criminal justice process, filtering effect of, 613
criminal justice system, attrition of sexual assault cases through the, 626–34
“Criteria-Based Content Analysis,” 202
defence lawyers and scholars alike to support the idea that “women lie about being raped,” 206
depression or post-traumatic stress disorder, 224
DuBois, Teresa, 221–22
duty of care, 215–21
duty of care, policy reasons to negate, 219–21
duty of care requires police to warn women of a danger, 227
equality-based argument, 228–29
equal protection of the law, denial of, 233
“extremely low reporting, charging, and conviction rates for sexual assault can only be regarded as extreme failures of the justice system,” 219
“failure to warn” women, 14, 23, 226–28, 246, 249
“false complaint” decision by police materially increases the risk of sexual assault for all women, 226
“false rape accusations” by women are not unlike kleptomania according to police, 204–5
first-response officers should not make a determination as to whether a sexual assault incident is classified as unfounded, 200–201
flashbacks, women may have, 203
floodgates argument, 220
foreseeability, 217–18
“founded” cases: only 42 percent of cases result in charges while no more than 11 percent have led to a conviction, 633
“founded” sexual assaults, the percentage of cases that result in charges being laid, 629
“founded” sexual assaults vs. number of convictions, 632
Freedom of Information and Protection of Privacy Act request for “unfounded” sexual assaults, 212–13
L’Heureux-Dubé (Justice): myths and stereotypes entrenched in the Supreme Court skewed the law’s treatment of sexual assault claimants, 624–25
Hill (test for duty of care), 216–20, 234
impacts on women, disproportionate, 233
institutional sexism on the part of the police, 219
“investigative” techniques such as “statement analysis” and “behavioural analysis” are unverifiable (unscientific), 13
investigative techniques used by police that assess women’s credibility premised on “women are hard to be believed” results in “unfounded” sexual assaults, 191
issues of dignity, equality, and emotional and psychological well-being, 218
Jane Doe, 224–25, 227–28
Jane Doe decision, impact of, 200–201
Jane Doe decision was “a lower court decision and debate continues over the content and scope of that case,” 217
Justice MacFarland: police “act as a filtering system for sexual assault cases” by determining that certain complaints are “unfounded,” 192
Justice MacFarland’s condemnation of the reliance on rape myths and stereotypes by Toronto Police Service, 191
Justice MacFarland was critical of the incredulity with which the officers handled women’s reports, 192
Kamloops v BC, 216
Kanin, Eugene, 204–6
law reform, lack of public outcry or incentive for, 215
law reform downgraded the offence of rape and unwanted sexual touching so technically they now occupy the same offence category under section 271, 621
law’s reluctance to recognize any private interest held by the victim in the outcome of a criminal investigation, 223
level 1 (s 271 of Criminal Code), police under-classify large numbers of sexual assaults as, 618–20
level 1 (s 271 of Criminal Code) for sexual assault do not include elements of levels II or III, 618–21, 629, 630n55, 631n59, 633–34
level 2 (s 272 of Criminal Code) for sexual assaults with a weapon, that caused bodily harm to a person other than the victim, or that are committed with another person, 618–21, 629
level 3 (s 273 of Criminal Code) for aggravated sexual assaults with wounding, maiming, disfiguring, or endangering the life of the victim, 618–19, 629
mental illness from police wrongfully refusing to investigate rape, 223
Mooney v BC (Attorney General), 224
negative experiences by women with the legal process since 1993 have reduced women’s confidence that they will be treated with dignity, fairness, and compassion, 617
nervous shock claims, 223
New Zealand, half of all allegations of sexual assault were retracted in, 628
in Ontario, 195
police are trained to approach a sexual assault investigation with the suspicion that the complainant is lying, 221–22
police believe that large numbers of women lie about sexual assault and rape, 199–200, 208–9
police blame; do nothing to help; and doubt women’s stories while maintaining a cold and detached demeanor, 193
police decide a woman is “lying” and then tell her that she will be charged with mischief for filing a false sexual assault complaint if she does not recant her story, 212, 235
police deem that 41 percent of reported rapes are “false accusations” (unfounded), 205
police determine if there is insufficient evidence to establish “reasonable grounds” to lay a charge, 628–29
police fail to meet their legal obligations because of discriminatory beliefs that “woman are lying about sexual assault,” 194, 234
police have stereotypical ideas about women who report rape, 622
police hold sexist, stereotypical beliefs that inform their investigations, 231–32
police investigations of sexual assault are incompetent, or not conducted at all, 232–33
police portray sexual assault complaints as vexatious and frivolous, 634
police professional negligence, 215
police “quasi-judicial role” in evaluating sexual assault reports from women was rejected by the Supreme Court which held that only prosecutors are concerned with whether evidence supports a conviction, 221
police recording practices, 618–22
Police Service Act, section 42(1) of, 233–34
Police Services Acts, police have a specific duty to investigate crime under various, 218
police statistics show an “unfounding” of sexual assaults to a far greater extent than any other crime, 627
police unfound large numbers of complaints and classify almost all remaining cases as level I, 634
police use “recantation” by women (obtained by threat of a charge for mischief) to “confirm” their suspicions of fabrication of sexual assault, and to affirm that their approach is justified, 235
portray sexual assault complaints as vexatious and frivolous, 634
proximity, 218–19
psychological injuries, 223–25
public outcry when a woman is wrongfully accused of falsely reporting a rape, 213
rape investigation handbook, 204–8
rape myths, 191–92, 623–26
rape myths, adherence to, 13
rape myths influence police, prosecutors, and jurors and judges, 625
rape victims expect to be believed and that police will investigate their reported crime, 218
rate of recorded sexual assaults dropped since 1993, 617
rate of reported sexual assaults resulting in charges being laid actually decreased from 44 to 42 percent (1998 to 2006), 193
rate of reporting of sexual assault, downturn in, 613
rate of sexual assaults peaked at 121 per 100,000 in 1993; but dropped to 65 per 100,000 in 2007 according to police records, 617
rates of level II and III sexual assaults as recorded by police, 619
“reasonable grounds” for laying a sex assault charge, 628–29
recording practices of police, 618–22
remedies, appropriate, 236–37
reputation interests (labels of “liar,” “criminal”), 219
Review of the Investigation of Sexual Assaults (1999), 200–201
The Review of the Investigation of Sexual Assaults: A Decade Later (2010), 201
Rumney, Philip, 203, 205
Sapir, Avinoam, 204
sentencing patterns for sexual assault convictions show a decline in severity which corresponds to a decline in sexual charges being laid at levels II and III by police under sections 273 and 272 of the Code, 633–34
sexist and stereotypical views “that women who have been raped will be emotional,” 227
sexist behaviour is the norm amongst all police forces, 229
sexist mythologies of police, 227
sexist stereotyping of raped women, 192
sexual abuse, children’s allegations of, 202
sexual assault, trends in incidents of, 614–17
sexual assault convictions, types of sentences for, 633
sexual assaulted (2004), only 8 percent of 460,000 Canadian women reported the crime to police according to Statistics Canada, 613
sexual assault investigators are trained using materials with sexist and misogynistic assumptions and stereotypes, 222, 232
sexual assault investigators use sexist and stereotypical reasoning to close or “unfound” sexual assault cases, 231
sexual assault offences continue to be “unfounded” at higher rates than for other crimes, 194, 196, 209
sexual assault reports, investigation of, 201–2
sexual assaults, 98 percent of cases are recorded by police as level I (section 271) suggesting that some level II and II’s are treated as level I offences, 618–19, 634
sexual assaults, less than 10 percent of cases are reported to police (2004), 617
sexual assaults, under-classification of them has implications for treatment of these cases in court and for the sentences imposed, 621
sexual assault survivors are frequently the most vulnerable members of society because of race, economic circumstances, or a history of abuse or mental illness, 214
sexual assault units, specialized, 617
sexually assaulted women are less willing to report to police after the recent law reforms, 617
standard of care, police breach, 215–16, 221–22
Statement Validity Analysis (SVA), 202, 232
Statistics Canada determined that 16 percent of all sexual offences reported to police are “unfounded” vs. 7 percent for other crimes, 194, 196, 209
stereotypical beliefs about “real” rape victim, 208
study by Janice Du Mont and Terri Myhr, 195
study by Linda Light and Gisela Ruebsaat, 195
study by Liz Kelly, Jo Lovett, and Linda Regan, 197–98
study by Teresa Dubois and Blair Crew, 196–97
Supreme Court of Canada and denial of equal protection, 233
Supreme Court of Canada : Police Services Act implicitly includes a duty to investigate crime, 234
Supreme Court: rejected the “quasijudicial role” of police in evaluating sexual assault reports from women. Only prosecutors are concerned with whether evidence supports a conviction., 221
systemic attitudes, and belief in myths and negative stereotypes about rape victims, 622
systemic belief of police that “women are liars,” 234
systemic discrimination in the enforcement of the criminal law, 228
tort of negligence investigation, 215–16
unequal protection under the Charter, 228
“unfounded,” police dismiss 28 percent of women’s rape reports as, 10
“unfounded” on the basis of implied consent, 231
“unfounded” rates for sexual assault, reasons for, 197–200
“unfounded” rates for sexual assault according to British Home Office (UK), 198, 628
“unfounded” reports in Canada, U.S., United Kingdom, 194–97
“unfounding” of large numbers of sexual assault complaints and classification of remaining cases as level I assaults, 634
“unfounding” of sexual assault cases is a systemic problem in Canadian police forces, 208
“unfounding” of sexual assault complaints indicates systemic discrimination, 233
“unfounding” of sexual assault reports, police provide women with sexist and myth-based reasons for, 214
“unfounding” of sexual assaults by city in Ontario, 197
“unfounding” of sexual assaults is far greater than for any other crime, 627
“unfounding” rates in British Columbia, 195–96
“unfounding” rates in New Zealand, 198
“unfounding” rates reported by Ontario Police Forces (20032007), reported sexual assaults vs. criminal offences, 240–42
“Validity Checklist,” 202
victimization surveys give far more reliable estimates of sexual assault than any other source, 630
women are not believed because of “mental health problems or disability,” 199
women “fabricate” sexual assault at ten times the rate of any other crime, 213
women “lie about being raped” for three reasons: to create an alibi, to get revenge, and to elicit sympathy or attention, 205
women “lie about being raped” to get revenge; to satisfy a need for attention; to obtain medical treatment; for profit (to file a lawsuit, to obtain better housing, to get custody of a child, etc.); to deal with a change of heart after a consensual sexual encounter, 206
women may experience post traumatic stress disorder and depression after sexual assault, 193
women who are disabled or suffer from mental health problems are more likely to see their reports of sexual assault as “unfounded” by police, 208
women who report rape which the police determine “to be false” or “unfounded” are effectively rendered “rapeable,” 235
“wrongfully unfounded,” evidence that cases have been, 229–30
“wrongfully unfounded” is widespread and systemic, evidence that, 230–31
“wrongful unfounding,” summary on an action for negligence of, 225
“wrongful unfounding” both denies women the equal benefit of the law and imposes a burden on women, 236
“wrongful unfounding” causes harm, 218
“wrongful unfounding” is a negligent failure to warn women, 226–28

political will to fix things, lack of, 49

Pope, Kenneth, 480

“The Pope Sends His Best,” 348

post-traumatic stress disorder, 362, 366, 380, 383

Powell, Anastasia, 174

predators
men cowardly commit rape against unconscious women, engage in an attack without risk, without looking their victims in the eye, 486
men prey upon women who are drunk, drugged, or asleep, 483
predatory conduct should be forbidden by criminal law, 523
violence against women and, 535

pregnancy, forced, 186

pregnancy, termination, 186

presumptive approach to admissibility, 543

presumptive rule, 566–68

prisons, 734

privacy and equality rights, legal aid for, 26

Privy Council, 2

proof on the balance of probabilities, 471

prosecutors
fail to invoke reformed rules of evidence and express fundamental disagreement with the laws, 496
in sexual assault cases, should prefer trial by judge alone, not trial by a judge sitting with a jury, 138
in sexual assault cases, should routinely request that judges sitting alone without a jury issue reasons for decision in written form, 141
summary conviction proceedings, advised to use, 136, 138

prostitutes, 206, 672–74, 676

prostitution, juvenile, 2

provincial Attorneys General, 146

psychiatric
assessment, 411, 468 (See also expert knowledge)
medications, 420
problems, 420

“Psychological Evaluation in Sexual Offence Cases” (Marshall), 477

psychological injuries, 223–25, 736

psychologists, 302, 305, 421, 623

Psychotherapists’ Sexual Involvement with Clients: Intervention and Prevention (Schoener et al.), 478, 480

psy-disciplines. See expert knowledge

public attitudes
to police, 50–51
towards police accountability, 51
towards sexual assault, 19, 50
towards women who have been raped, 704

Purcell, Laura (doctor), 83

putative collusion cases, 543, 551

Q

Queen Street Mental Health Centre, 182

R

racialized
accused, cases involving, 551–53
women, 20, 36, 302, 305, 307–8, 665, 678

racial profiling cases, 599

racism. See also EB v Oblates of Mary Immaculate in the Province of BC (Oblates); Edmondson, Kindrat, and Brown prosecutions
perception of criminal perpetration by white men against black women vs. white male against white women or black male, 487
racial bias impacting the trier of fact in its assessment of the cogency of the similar fact evidence, danger of, 553
racial categorization of raped women and victim blaming in cases of acquaintance rape, 676
racialized communities, including Aboriginal ones, have the least to gain from victim impact statements, 667
racialized women are viewed as “inherently less innocent and less worthy than white women,” 678
racialized women as victims of rape, devaluation of, 683
racist paternalism in clemency decisions, 684
rape of black women is perceived as less serious than rape committed against white women, 487
rape of unconscious Aboriginal women is seen as low in criminality by police and prosecutors, 487

Randall, Melanie, 488, 615

rape. See also sexual assault; Sexual Assault Evidence Kit
“an act of forceful penetration,” 370
as an act of violence and a form of domination perpetrated against the bodies of women, 585
of black women is perceived as less serious than rape committed against white women, 487
“classic rape” in legal discourse is the rape of a white woman, 678
criminal justice system and, 278, 281
criminal justice system restricts the authority to decide whether or not a rape has occurred to particular individuals, 280
crisis centres, 10, 301, 306, 361, 363
crisis services, 357
crisis workers, 377
Crown represents complainant’s interest by ensuring her rapist is punished, 278
defined by Canadian jurisprudence, 274
discrimination in capital sentencing of, 679–80
Ewanchuk: recognized existence of rape myths and worked to counteract them, 287
and intimate partner violence sur veys, 615
investigation handbook, 204–8
kit, 133 (See also Sexual Assault Evidence Kit)
law reform (1983-1992), 704–7
legal system’s processing of, 279–80
legal threshold for recognizing that it has occurred, 277–78
as level one sex assault due to the complexities of police charging practices, 723
medical report (“rape kit”) and police evaluate the complainant’s credibility, 279
mythologies to shape criminal law doctrine, 541
an offence under the Criminal Code of Canada, 274–75
prevention programs, 252, 258
rape charge, fraudulent, 680
as social phenomena, 276
stranger, 220, 299, 391
as systemic problem, 276
third-party records of women and, 288
of unconscious Aboriginal women is seen as low in criminality by police and prosecutors, 487
as war crime, 307
as widespread social phenomenon, 267

rape myths. See also rape myths in trial discourse; rape trials
about, 286–87, 623–26, 704
“a woman who resists cannot be raped,” 704
influence all levels of the criminal justice system, from police screening practices, to court processes, to overall rates of conviction, 287
influence police, prosecutors, and jurors and judges, 625
linguistic analysis of trial discourse demonstrates, 16
“linked to minimization of harm and attribution of blame to victims, and reduction of responsibility attributed to perpetrators,” 625
“male perpetrator was gentlemanly and courteous,” 717
“no means maybe,” 704
play a significant role in how courts decide who can be raped, 288
“rape doesn’t hurt anyone,” 704
raped women are held responsible for the traumatic impact of their assault, 712
“raped women are liars, mentally unstable, or hysterical,” 30, 35, 246, 554, 706
rape of black women is perceived as less serious than rape committed against white women, 487
rape of unconscious Aboriginal women is seen as low in criminality by police and prosecutors, 487
“rape results from a woman arousing a man,” 704
sentencing of men convicted of sexual assault and, 707
and sex stereotypes about men’s “mistakes,” 502
shift in accordance with the expansion of neoliberalism, 711
in strategies of lawyers, ubiquitous, 702
“women are liars or temptresses seeking vengeance,” 712
“women are ready for intercourse with any man, at any time and in any place,” 514
“women enjoy rough sex,” 704
“yes to one then yes to all,” 704

rape myths in trial discourse. See also discrimination; police and court processing of sexual assault
adjudication of rape cases, 390–92
answers may contest the version of events put forward by the questions of cross-examining lawyers, 403
answers to control information, 401–3
complainant represents herself as attempting to prevent more extreme acts of violence from the accused, 406–7
complainant response provides competing descriptions that transformed the lawyer’s damaging characterizations into more benign ones, 402–3
complainant’s attempts to counter the lawyer’s descriptive strategies should not be overlooked, 403
complainants can assert their agency by resisting victim-blaming presuppositions, 16
consensual sex, 391, 402–3, 407
“controlling” questions, 396–98, 400, 402, 408
cross-examining lawyers can incorporate “elements” into their “controlling” questions that are strategically designed to undermine the credibility of complainants, 408
cross-examining lawyers construct a version of events that supports their own clients’ interests, 407
cultural assumptions, questionable, 392, 396
cultural mythologies used by judges, juries, and defence lawyers can be contested, 392, 408
defence lawyers can cast doubt on complainants’ allegations of sexual assault and rape, 408
defence lawyers exploit damaging cultural narratives about rape as a way of undermining the credibility of complainants, 408
defence lawyers in criminal rape trials draw strategically upon cultural mythologies of rape as a way of impeaching the credibility of complainants, 392, 396
“detailed consideration of answers” in rape victim’s cross-examination, 402
direct examination, 403–7
direct vs. cross-examination, 404–6
expressions of resistance are problematized by the judge and the defence lawyer, 400
Hanna Woodbury’s taxonomy of question “control,” 394
inferences generated by questions serve to call into question the complainants’ allegations of sexual assault as they express resistance directly and forcefully, 400
judges adopted a language of erotic, affectionate, and consensual sex when describing non-stranger rape, 391
“law-as-legislation” vs. “law-as-practice,” 390
law’s juridogenic potential, 389
lawyers attempt to include elements of their own client’s version of events in their questions or declaratives of yes-no questions in controlling evidence, 395
lawyers shade the narrative rendering of the event using linguistic and rhetorical devices in direct and cross-examination, 389
leading questions allows crossexamining lawyers to impose their version of events on the evidence, 393–94
linguistic analysis reveals some of the discriminatory qualities of rape trials, 390
physical resistance on the part of victims can escalate and intensify violence, 407
questioning devices allow lawyers to control complainant’s information while exploiting prevailing cultural myths about women and rape, 16
questions about reasonable options that were not pursued by the complainant, 398–400
questions control information, 396–401
questions designed to accuse witnesses or to challenge or undermine the truth of what they are saying, 393
questions in trial discourse, 392–96
questions leading to a “blame allocation” by producing “justification/excuse components in answers,” 404
questions to elicit premature or preemptive defences and justifications for actions, 404
questions with presuppositions, 394–95
question types are ordered from less to more “controlling,” 395
rape mythologies are more determinative than the evidence, the judges’ decisions on complainants’ incapacity suggest adherence to, 513
rape mythologies often invoked by defence lawyers can be challenged in courtrooms by alternative kinds of narratives, 407
rape myths, linguistic analysis demonstrates the distorting effects of, 16
rape trial as “rape of the second kind,” 389
rape trial exemplifies much of what is problematic about the legal system for women, 389
resistance standard, 401, 408
sexist and androcentric cultural stereotypes, 390
sexual stereotypes, ancient, 390–91, 396
structural inequalities can characterize male–female sexual relations and the effects of such inequalities in shaping women’s strategies of resistance, 407
submitting to coerced sex or physical abuse can be “a strategic mode of action undertaken in preservation of self,” 407
subversion of sexual assault criminal law reforms through practices of trial discourse, 451
traditional cultural mythologies about rape, 391
“utmost resistance” standard, 396
witnesses are obligated to answer questions or run the risk of being sanctioned by the court, 393
witnesses do not typically ask questions of lawyers and, if they do, they risk being sanctioned by the court, 401
witnesses in their answers and prosecuting lawyers in their questions have the potential to produce competing cultural narratives about rape, 408

Rape of Proserpine (story), 321

rape shield laws, 3

rape shield provisions
Bill C-49 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, 705
Bill C-127 (1983): limits on the ability of defence lawyers to ask questions about the sexual history of the complainant or the “rape shield provision,” 390, 705
defence lawyers challenge the revised rape shield statute doing “end runs” around restrictions on sexual history evidence by using third-party and confidential records of therapists or counsellors, 705

Edmondson, Kindrat, and Brown prosecutions, 121, 131, 148

R v Brown, 121

R v O’Connor, 705

Supreme Court of Canada ruled (1992) rape shield provision violated constitutional legal rights of the accused, and was thus unconstitutional, 705

rape squad officers, 304

rape trials. See also rape myths; rape myths in trial discourse; Sexual Assault Evidence Kit
“an abstracted exercise of logic unrelated to the context of sexual interactions and the complainant’s own account of her violation,” 282
complainant becomes the central focus of the defence attack vs. identity of the perpetrator, 18
DNA and other technology-based crime-solving tools, 373
gender bias in rulings that have excluded sexual misconduct from, 18

Razack, Sherene (Justice), 248, 363, 673–74, 678, 685

RCAP Report. See Report of the Royal Commission on Aboriginal People (RCAP Report)

RCMP. See Royal Canadian Mounted Police (RCMP)

Real Rape (Estrich), 391

“reasonable steps” requirement
Aboriginal women are “prey” for perpetrators who target racialized women, 539
accused’s honest belief in consent, 506, 531
“advance consent” to sexual contact while unconscious, 516, 535
“air of reality” defence, 499–503
“air of reality” test for mistaken belief where the accused claims reasonable steps were taken to ascertain consent, 537
“air of reality” test must include consideration of whether there is any evidence that the accused took reasonable steps to ascertain consent, 500
“air of reality” to a defence, 503, 507, 512, 515, 518, 520, 528
appeal judge ignored the findings of fact and focused instead on the accused’s narrative about the myth of male prerogative as immune from the criminal law, 523
Bill C-49’s “reasonable steps” requirement was intended to criminalize sexual assaults committed by men who claim mistake without any effort to ascertain the woman’s consent or whose belief in consent relies on self-serving misogynist beliefs, 489–90, 492
Bill C-49: the “no means no” law, 521
Bourassa, Michel (Justice), 487
can physical or sexual contact constitute reasonable steps?, 518–23
complainant has no memory of sexual assault because she was unconscious at the time of the attack and unable to give consent, 483
complainant was incapable of consent, can the Crown prove, 508–18
complainant who was drugged “was responsible for her own actions,” 524
Conrad (Madam Justice), 487
Criminal Code reform (1992) defines consent as “voluntary agreement” and complainant must be capable of decision-making and have agreed to the sexual contact without threat or coercion, 484
Criminal Code s 273.2(b) holds potential for social change and disruption of men’s relative immunity from criminal liability for sexually assaulting unconscious women, 539
criminal law elevates male sexual prerogative over women’s bodily integrity and equality to the discredit of our legal system, 522
criminal law requires that men follow, 17
Crown attorneys are thus forced to rely on the probative value of complainants’ testimony if they have not memory of the attack, 536
Crowns should insist on a rigorous application of the law governing the “mistake” defence, 536–37
“date rape drug,” 524
discriminatory beliefs have masqueraded as “facts” for far too long, 502
Foisy (Justice), 519
L’Heureux-Dubé (Justice): “archaic myths and stereotypes about the nature of sexual assaults ... ignores the law,” 524
L’Heureux-Dubé (Justice): defence of “mistake” had no “air of reality” on Ewanchuk’s facts by reference to the law in s 273.2(b), 501–2, 504
L’Heureux-Dubé (Justice): dissent in R v Seaboyer, 495
“incapable of consent,” complainant must be virtually unconscious to be deemed, 508
judges in UK frankly acknowledge that they disagree with reforms aimed at protecting women from discriminatory practices, 496
judicial avoidance of interpretive task demanded by s 273.2(b) as courts and judges persist in ignoring the reasonable steps requirement or in misinterpreting it, 494
judicial tolerance for high levels of violent coercion by men who propose that they were “mistaken” as to women’s consent, 492
judiciary remains willfully blind to systemic perpetration by men against unconscious women, 535
Justice Arthur M Gans on alcohol and consent, 514–15
Justice Mary-Ellen Boyd and honest mistake as to consent, 521
Justice McLachlin and “reasonable steps” requirement barred a potential “mistake” claim by the accused, 497, 503, 509–10
Justice McLachlin: Criminal Code consent must be voluntarily given by a person capable of consent and must be ongoing, subject to revocation by the complainant, 516
Justice McLachlin: men’s “mistake” defence where women are unconscious “depends … on dangerous speculation, based on stereotypical notions of how drunken, forgetful women are likely to behave,” 536
Justice Rosalie Abella on need for consent, 526
Justice Todd Ducharme and ruling that the woman was incapable of consent, 510–11
law must require men to ensure that their partners are conscious before having sex, 523
law reform is applied unevenly by Canadian courts and is misinterpreted in terms of women’s rights to equality and security of the person as protected by Charter ss 7 and 15, 489
limit should be argued in every case where the accused claims consent or “honest mistake” as a defence, 537
Lucinda Vandervort and interpretive conflict vs. “honest mistake” defence, 490–91
Madame Justice Seppi: nothing less than waking up a sleeping woman will suffice as “reasonable steps,” 533
Madam Justice Silja S Seppi and nothing less than waking up a sleeping woman will suffice as “reasonable steps,” 533
Major J of the Supreme Court overtly refused to apply the reasonable steps requirement, 497, 502–3
male justices of the Supreme Court continued to describe the “mistake” defence as if nothing had happened in terms of legislative change, 497
man’s recklessness or intoxication cannot be used to explain his “mistake” regarding consent as per s 273.2(a) of the Code, 517
men claim that women fall asleep in the middle of consensual sexual contact, or that they were unaware that the women had passed out, and that women “come on” to them while unconscious, 488
men cowardly commit rape against unconscious women, engage in an attack without risk, without looking their victims in the eye, 486
men prey upon women who are drunk, drugged, or asleep, 483
men’s stories tap into phallocentric beliefs, 488
men with predatory intent who drug women should be absolutely barred from their disingenuous claim to “mistake,” 538
misogynist beliefs used by men to claim their moral innocence, 490
misogynist victim-blaming by the presiding judge, 524
“mistake” defence, appeal courts are setting limits on the use of, 526
“mistake” defence be barred where the defence is solely based on conjecture as to “mistake” as opposed to evidence of actual reasonable steps, 537
for the “mistaken belief in consent” defence, 483
non-consensual sexual touching, why de-criminalize, 538
Ontario Court of Appeal, 502
perception of criminal perpetration by white men against black women vs. white male against white women or black male, 487
perpetrators count on the shame and silence of women who have been raped, 539
predatory conduct should be forbidden by criminal law, 523
predatory male violence against women, 535
principles that judges ought to respect as they assess men’s culpability, 18
prosecutors fail to invoke reformed rules of evidence and express fundamental disagreement with the laws, 496
rape mythologies are more determinative than the evidence, judges’ decisions on complainants’ incapacity suggest adherence to, 513
rape myths and sex stereotypes about men’s “mistakes,” 502
rape myth that women are ready for intercourse with any man, at any time and in any place, 514
rape of black women is perceived as less serious than rape committed against white women, 487
rape of unconscious Aboriginal women is seen as low in criminality by police and prosecutors, 487
“reasonable step,” can physical or sexual contact constitute?, 518–23
“reasonable steps” and requirement to wake women up, 523–35
“reasonable steps” limit should be argued in every case where the accused claims consent or “honest mistake” as a defence, 537
“reasonable steps” remains oblivious to what “everybody knows,” legal response in terms of, 539
“reasonable steps” should require that men wake women without touching them in any way, 538
remains oblivious to what “everybody knows,” legal response in terms of, 539
requirement to wake women up, 523–35
requires that men wake women without touching them in any way, 538
R v Aitken, 502–3, 520
R v Ashlee, 515–17
R v Baynes, 534–35
R v BSB, 512–13
R v Conn, 498
R v Cornejo, 502, 526–27, 531, 537–38
R v Correa, 514–15, 532
R v Daigle, 496, 523–24
R v Darrach, 498–99
R v Despins, 502, 527–28, 537–38
R v DIA, 506–7
R v Dumais, 509
R v Esau, 126, 496–97, 500–501, 503
R v Ewanchuk, 493–94, 497, 501, 504, 524, 538, 563, 706
R v GAL, 528–30
R v Girouard, 507
R v Graham, 533, 538
R v JA, 516–17
R v Jesse, 513–14
R v M (ML), 493
R v Malcolm, 504–6
R v Millar, 530–31
R v Miyok, 507–8, 539
R v Murphy, 522
R v Osolin, 492
R v Osvath, 524–26
R v Pappajohn, 490–91
R v PD, 534
R v R(J), 510–12
R v Sansregret, 491–92
R v Seaboyer, 489
R v Tessier, 519–23
R v Tookanachiak, 515, 518
R v Williams, 531–34
s 273.2(b) of the Criminal Code: a man must take reasonable steps to ascertain the woman’s consent in order to be exculpated for his “mistaken” belief that she consented, 484
Saskatchewan Court of Appeal, 502
sex discriminatory assumptions that women “cry rape” in the morning, when they come to regret their poor judgment of the night before, 536
“sexual assault is only sexual assault in the eyes of the law if the man who is doing it thinks it is,” 491
Supreme Court ruled in R v M (ML) that it is an error for a judge to rule that “a victim is required to offer some minimal word or gesture of objection and that lack of resistance must be equated with consent,” 493
systemic racism involving Inuit, 518
trial judge and reasonable steps requirement, 503–8, 520
victimization of female partners and ex-partners is rarely recognized by the criminal justice system, 488
violent ex-partner was given a first “free” rape by virtue of the Pappajohn defence, but morally culpable for the second rape, 491
women justices of the Supreme Court preferred to decide cases on the basis of the law as it had been enacted by Parliament, 497
women raped while drunk, drugged, or asleep doubt themselves and doubt the criminal justice response and rarely report their rapes, 485
women’s bodily security, disregard for, 537
women’s entitlement to dignity, equality, and security of the person should easily outweigh men’s interest in sexual contact with women who neither know nor desire them, 18
women’s equality demands that “mistake” defence be barred where the defence is solely based on conjecture as to “mistake” as opposed to evidence of actual reasonable steps, 537
women’s equal rights to security of the person and to sexual autonomy when they are unconscious, 535
women’s rights to equality and autonomy vs. proposition that women are presumptively consenting, 536
women’s security of the person interests should be protected while they sleep or recover from drug or alcohol ingestion vs. men pursuing their own sexual desires, 538
women with disabilities are vulnerable to having their rapes decriminalized if unable to offer an account of the assault to challenge the accused’s version, 488

refugee women, 301–2, 305, 307, 310, 754

Regroupement Quebecois des centres d’aide et de lutte contre les aggressions à caratère sexuelle (RQCALACS), 307–9

Regulated Health Professions Act (1993), 17, 452–53

Report of the Royal Commission on Aboriginal People (RCAP Report), 155–56, 163

residential school survivors. See also EB v Oblates of Mary Immaculate in the Province of BC; Supreme Court of Canada
Bazley v Curry, 151, 157, 160–62, 165, 170–71
HL v Canada, 151n1, 152n5, 157
Jacobi v Griffiths, 151, 162
Plint case, 157, 159
Report of the Royal Commissionon Aboriginal People (RCAP Report), 155–56, 163
Restoring Dignity: Responding to Child Abuse in Canadian Institutions, 155–57

“restorative justice” alternatives, 737

Restoring Dignity: Responding to Child Abuse in Canadian Institutions (Restoring Dignity), 155–57

Review of the Investigation of Sexual Assaults (1999), 200–201

Review of the Investigation of Sexual Assaults: A Decade Later (2010), 201

Richards, Amy, 264

Rickards, Clint (N. Z. police officer), 56–60, 63

right of accused, 281

rights of women during rape trials, 25, 27, 306

right to a fair trial within a reasonable delay, 281

right to counsel, 281

right to remain silent, 281

risk management technologies applied to rape, 258

Roberts, Julian, 699

Robinson, Laura
Crossing the Line: Violence and Sexual Assault in Canada’s National Sport, 83

Ropati, Tea (rugby league star), 61–63, 70

Royal Canadian Mounted Police (RCMP), 50

Royal Commission on the Status of Women, 732

RQCALACS. See Regroupement Quebecois des centres d’aide et de lutte contre les aggressions à caratère sexuelle (RQCALACS)

Ruebsaat, Gisela, 195

rule of admissibility, equality-oriented, 547–50

rule of evidence, 541, 603n58

rule of presumptive admissibility, 18

Rumney, Philip, 203, 205

Ruparelia, Rakhi, 8, 712–13

R v Aitken, 502–3, 520

R v Angione, 21

R v Arp, 550

R v Ashlee, 515–17

R v Baynes, 534–35

R v B(CR), 542, 548, 556–57, 559

R v BK (Aboriginal man), 715–16

R v Blake (sexual touching of children), 564–65

R v Brown, 112

R v BSB, 512–13

R v C(D), 552–53

R v CG, 720

R v Conn, 498

R v Corcoran, 716

R v Cornejo, 502, 526–27, 531, 537–38

R v Correa, 514–15, 532

R v Cuerrier (non-disclosure of HIV status), 19–20, 569n2, 635n2, 636, 650n55, 663

R v Daigle, 496, 523–24

R v Darrach (objective vs. subjective standard), 498–99

R v Despins, 502, 527–28, 537–38

R v DIA, 506–7

R v D(LE), 556

R v Dumais, 509

R v Edmondson, 112

R v Edmondson, Kindrat and Brown, 12. See also Indigenous women and girls

R v Esau, 126, 496–97, 500–501, 503

R v Ewanchuk (“reasonable steps”), 493–94, 497, 501, 504, 524, 563, 706

R v Ewanchuk (“air of reality”), 117–18, 501–2, 504

R v Ewanchuk (implied consent), 3–4, 123, 126, 538, 706

R v GAL (predation and penetration), 528–30

R v Girouard, 507

R v Graham, 533, 538

R v Guthrie, 719–20

R v Handy (“similar fact” evidence), 18, 542–43, 545–47, 557, 559

R v Hill “negligent investigation,” 13

R v Hutchinson, 663–64

R v JA, 516, 535

R v JA (“advance consent”), 516–17

R v Jesse, 513–14

R v K(A) (similar fact evidence excluded), 566

R v Kakepetum (Aboriginal man), 714–15

R v Khalid, 720–21

R v Kindrat, 112. See also Edmondson, Kindrat, and Brown prosecutions

R v KRG, 721

R v Labaye (harm principle), 580

R v Labbe, 691

R v Lavallee (psychological impact of battering on wives), 599

R v M (ML), 493

R v Malcolm, 504–6

R v Markham (medical doctor), 718–20

R v Millar, 530–31

R v Mills, 3, 553, 596, 606, 706

R v Mills (access third-party records), 706

R v Mills (women’s personal records), 606

R v Miyok, 507–8, 539

R v Murphy (contact with sleeping woman), 522

R v NS (niqab), 605

R v O’Connor, 705

R v Osolin (“honest mistake” defence), 492

R v Osvath (“honest mistake” defence), 524–26

R v Pappajohn, 490–91

R v Parks (anti-black racism), 552

R v Parsons, 555

R v PD (predatory conduct), 534

R v Pecoskie, 716–17, 719

R v Ridings, 722

R v R(J), 510–12

R v Sansregret, 491–92

R v Seaboyer, 489

R v Shearing, 560

R v SR (sexual assault with weapon and forced confinement), 713

R v Tessier, 519–23

R v T(L) (similar fact evidence overturned), 565

R v Tookanachiak (advance consent for unconscious sex), 515, 518

R v TS (intimate partner violence), 713–14

R v Tulk, 701–3, 722

R v Wells, 709–10

R v Williams (belief in consent), 531–34

R v Williams (racism against Aboriginals), 551–52

R v W(J) (similar fact evidence excluded), 566

S

SACs. See sexual assault centres (SACs)

SACTC. See Sexual Assault Care and Treatment Centre (SACTC)

SAEK. See Sexual Assault Evidence Kit (SAEK)

safety pedagogies, 252

Sampert, Shannon, 345

Sanday, Peggy, 390

SANE. See Sexual Assault Nurse Examiner (SANE)

Santos, De Sousa, 272, 298

Sapir, Avinoam, 204

SARTS. See Sexual Assault Response Team (SARTS)

SASC. See Sexual Assault Support Centre (SASC)

Saskatchewan Court of Appeal, 502

Scheherazade (Kelso), 316

Schollum, Bob (New Zealand police officer), 56–60, 66

second-wave feminist movement, 418

sentencing. See conditional sentencing (house arrest)

Seppi, Silja S. (Madam Justice), 533

sex crime detective, 380

sexist prejudice, 569–70

sexologists, 302

sexual abuse. See EB v Oblates of Mary Immaculate in the Province of BC (Oblates); medical doctors and sexual abuse in Ontario; rape

sexual assault. See also Criminal Code; HIV exposure as assault; Jane Doe v Metropolitan Toronto (Municipality) Police; Nicholas, Louise; police and court processing of sexual assault; rape; sexual assault and the feminist remedy
as abuse of power and constitutes violence against women and children, 480
actus reus of, 275
attrition in the number of cases in the criminal justice system, 626–34
behaviours, 572
bodily harm is an indictable offence, 275
caress or a beating can sustain charges of, 569
convictions, types of sentences for, 633
as crime of violence vs. sex, 561–66
Criminal Code definition, 276–77
diversity of women’s experience of, 360
exemplifies the manipulation of gender-specific fear through the degendered language of risk management, 253
“fast-track” the trial process in cases of, 133–34
gendered and sexual violence of, 358
harm suffered by victims, racialized women vs. white, 685
heterosexual men account for 98% of, 278
by hockey coaches and players, 10–11
ideal rape victim, 286, 591, 600
of infants and children, 585
“is not a crime of sex and passion but one of violence and domination,” 545
“is only sexual assault in the eyes of the law if the man who is doing it thinks it is,” 491
law reforms (Bills C-127, C-49, C-46) and restorative justice sentencing principles designed to limit the use of imprisonment, 703
law reforms restrict use of sexual history evidence and complainants’ confidential records in trials, 248
laws are fraught with misogyny and racism, 592
legal and social definitions in Canada are not identical, 142
male-centred assumptions about women’s sexuality and morality and about male sexual entitlement have informed the criminal law on, 462
medicalization of, 357, 409
mens rea of, 275–76
misogyny, originates within a deeply rooted culture of, 737
is the most gendered of crimes, 613
national legal standards for the prosecution of, compelling argument for, 12
New Zealand, half of all allegations of sexual assault were retracted in, 628
only 8 percent of 460,000 Canadian women sexual assault victims reported the crime to police in 2004 according to Statistics Canada, 613
as only a function of age difference, 573
paternalistic and protectionist response by State and policymakers, 358
of patients is not inhibited by either education nor psychotherapy, 480
perpetrators should pay for their crimes, 736
police under-classify large numbers of cases of, 619–20
as a policy problem, 251
prior sexual misconduct, evidentiary rule bars evidence of an accused’s, 18
as a problem for responsible individuals to foresee and prevent, 253
public attitudes towards, 19
rate of “recoded” sexual assaults dropped since 1993, 617
rate of sexual assault peaked at 121 per 100,000 in 1993 and dropped to 65 per 100,000 in 2007 according to police records, 617
rates of level II and III sexual assaults recorded by police, 619
rates of rape, indecent assault, total sexual assault, and level 1 sexual assault according to police records, 618–20
reconfigured through risk management technologies, 252
reports, less than 10 percent of sexual assaults were reported (2004), 617
reports, 98 percent of all sexual assaults were recorded by police as level I (section 271) suggesting that some level II and II’s are treated as level I offences, 618–19, 634
reports, only six percent of assaults are actually reported, 298
R v Handy, 18
R v Osolin: rape myths suggest that women by their behaviour or appearance may be responsible for the occurrence of sexual assault, 287
R v Seaboyer: “sexual assault is not like any other crime: it is informed by mythologies as to who the ideal rape victim and the ideal rape assailant are,” 286–87
s 265 Criminal Code, 275
sentences imposed on sexual assault conform to the conventional notion of rape (stranger perpetrated, weapons, vaginal, or anal penetration), 703
sentencing patterns for sexual assault convictions show a decline in severity consistent with the decline in sexual charges under sections 273 and 272 (levels II and III), 633–34
“sexual assault is only sexual assault in the eyes of the law if the man who is doing it thinks it is,” 491
“similar fact” evidence should be presumptively admissible in sexual assault prosecutions, 18
strangers account for two percent vs. majority of assaults are committed by partners, family members or co-workers, 299
survivors continue to suffer untold pain from the stigma, self-blame and societal condemnation, 736–37
trends in incidents of, 614–17
under-classification of them has implications for treatment of these cases in court and for the sentences imposed, 621
units, specialized, 617
Vancouver Olympics (2010), 84–86
victimization surveys, 614–17
victim profiling, 304–5
victims of, 674–78
victims of sexual crime complain that money is not an appropriate tool for compensation, 736
violence employed vs. absence of consent, 569
women are less willing to report assaults to police as a result of recent law reforms, 4, 617
women’s experiences of, 12
women who have been sexually assaulted must weigh the benefits and costs of sharing assault information with others in their social network, with police, and whether to ask for medical assistance or emotional support, 626
of young girls (See Frost, David)

“Sexual Assault and Forensic Biology” training module for police, 384–85

sexual assault and the feminist remedy
alternate dispute resolution (ADR), 736
Angione v R, 20, 725–26, 733, 735
criminal injuries compensation boards are deeply flawed in design and execution, 736
criminal penalties, historical review of, 728–33
female victims of sexual crime complain that money is not an appropriate tool, 736
Feminist Action-Research Institute (FARI), 738
Feminist Party of Canada, 738
indemnification of the victim as an alternative to imprisonment for pain and suffering, 727
principle of “retribution” or “vengeance,” 735
prison inmates target rapists, youth, and individuals perceived as “feminine” or “homosexual” for brutal sexual abuse, 734
prisons are breeding grounds for cruelty, hatred, disease, self-mutilation, and suicide, and offenders become more dysfunctional, more prone to criminal activity, 734
“restorative justice” alternatives, 737
sexual assault perpetrators should pay for their crimes, 736
solitary confinement, grim consequences of, 734
survivors of sexual assault continue to suffer untold pain from the stigma, self-blame and societal condemnation, 736–37
what would it look like?, 733–39
whipping with “cat o’ nine tails,” 729–32

Sexual Assault and the Justice Gap: A Question of Attitude (Temkin and Krahé), 487

Sexual Assault Care and Treatment Centre (SACTC)
about, 364–65, 367, 374, 378, 380–86
social workers, 380, 382

sexual assault centres (SACs)
about, 5, 361, 441–42
assessments, intake checklists, case noting, type-of-abuse statistics, contact-frequency tracking, demographic information, and record-keeping at, 445
call to once again rely on and defend the expert knowledge of feminist political practice, and eschew the individualizing practices of biopsychiatry and mental health disordering, 450
centres engage in practices that feminist expert knowledge long ago identified as damaging to survivors out of fear of getting in trouble with the funders, 446
charitable status change; regulatory requirements and reporting mechanisms changes, 446
“difficult to serve” and are streamed out to psy-disciplines and psychopharmacology, 447
feminist, 412, 441–44, 447, 450
references removed to feminism or gender-based violence from their mission statements, 445
skills that drew most on expert knowledge of women are among the first things sexual assault centres are preparing to abandon, 447
state-initiated pressures on women’s grassroots, 10

Sexual Assault Evidence Kit (SAEK). See also rape
Aimee (experiential), 375
Andy (key informant), 376–77, 381, 383–84
Barbara (experiential), 384, 388
Catholic hospitals and morning-after pill, 368
Charlene (key informant), 377
colposcopy procedure, 368
consent form to hand test results over to police, 366–67, 372–74
consent women give to undergo the kit is seldom informed legally or otherwise, 386
as corroborative evidence, 369–72
“date rape” drugs in new hair growth follicle, 371
DNA evidence, 369–71, 373, 377, 387
Esther (key informant), 368, 371, 376, 387
Feldberg, Georgina, 374, 383, 386, 388
Frankie (key informant), 376
gathering, efficacy, and purpose of, 358
Gracia (key informant), 378
Hermione (experiential), 375, 381–82, 387
informed consent and, 374–78
Lillian (key informant), 371
Marie (key informant), 371, 387
as medical forensic evidence, 364, 366–69
medicalization of rape as “illness” and increased medical authority over rape, 16
medico-legal functions, 358
methodology of study, 361–62
Michelle (key informant), 369–71, 387
Neveah (experiential), 369, 387
origin of, 363–65
ownership of the evidence, 372–73
Pamela (experiential), 370, 375
past sexual history can create a power imbalance between the voice of the claimant vs. experts, 374
pelvic examination, 370
physical evidence obtained via the kit has marginal influence on the outcome of a trial but can be used to discredit the woman who consented to undergo it, 373, 386
police training and, 384–85
post-traumatic stress disorder, 366, 380, 383
pubic hair, 347, 371
Q&A component, 372
questions about assault, current and past medical history, 367
race and rape, 362–63
Ramat (key informant), 376, 384, 388
rape crisis workers, 365, 377
RCMP kits, 371–72, 379
Ronnie (experiential), 373, 387
Scarlett (experiential), 369, 373–75, 388
shame, 362
standard practice, lack of, 359, 387
Statistics Canada and DNA evidence, 373
terrorizing effects on women vs. concrete gains for women, 16
utility and harms caused by, 357
vaginal examination or internal to detect injury and sperm or semen, 368
who benefits from the kit?, 385–88
women experience the kit as a second assault, 386
women know their assailant in seventy-five percent of cases, 377–78
women’s “consent” to the SAEK is more illusory than real, 16

“Sexual Assault Law, Practice and Activism in a Post-Jane Doe Era” conference (Ottawa, 2009), 1, 84

Sexual Assault Nurse Examiner (SANE), 133, 366–68, 371–72, 379, 382–85

Sexual Assault Response Team (SARTS), 379–80

Sexual Assault Support Centre (SASC), 412

sexual autonomy, 581

sexual coercion of slave owners, 681

sexual consent. See age of sexual consent

sexual contact
s 151 and 152 of the Criminal Code prohibits any form of sexual contact with a person under age fourteen, 570, 572
in violation of the person’s will to be touched is prohibited by the criminal code, 570
young women freely “consent” to sexual contact with adult men, 569

sexual education programs for adolescents vs. criminalization, 579

Sexual Experiences Survey, 615

sexual freedom, 580–82

sexual harassment, on-the-job, 2, 586

sexual history, past, 374, 463, 488

sexual misconduct evidence, 541

“sexual offender, dangerous,” 731

sexual orientation bias, 542

sexual subjugation of women, 318

sexual touching, 519–23, 528–30, 570, 620–21, 634, 658

sexual violence
as abuse of power enabled and rationalized by systemic sexual, racial, class, and other inequalities, 154
an issue for “experts” have been fully integrated into popular belief, 428
collective experience of, 311
framed through risk management, 263–64
Harper government’s defiant erasure of, 251
intimate partner violence survey on, 616
at least 90 percent of survivors of, never report the crime to police, 428
majority of the ten percent who report the crime never see charges laid against the perpetrator, or see him come to trial, 428
“mental health issues,” linked directly to, 429
rates of sexual violence is two to three times that of women not living with impairment or bodily difference, 173
stigma, shame, and blame associated with, 614
as systemic problem rooted in gendered and racialized inequalities, 250
violates the human rights of persons it targets and has significant negative impact on their health status and well-being, 143
against women, 2

sex-working women, 361

Shamai, Rebecca (Justice), 26–27

shame, 362, 456, 483, 539, 614, 627, 717

Sheehy, Elizabeth, 1, 250, 351, 687

Shilton, Elizabeth, 491

Shipton, Brad (N. Z. police officer), 56–61, 66

Shulhofer, Steven, 408

similar fact evidence
Abella (Justice): evidence of the prior acts of sexual abuse and sexual touching of children children’s genitalia, 565
Aboriginal or racialized accused, cases involving, 551–53
actus reus cases, 275, 543, 545, 549–50, 568
admissibility cases involving sexual assault, 557n63
“air of reality” to the allegation, 551
bad character door, 549
bad character evidence, 541–43, 555–56
in B(CR) and Handy cases, dramatic impact on the admissibility of, 561
Binnie (Justice): B(CR) case “specific propensity to abuse sexually children while in a parental relationship,” 548
Binnie (Justice): “evidence classified as ‘disposition’ or ‘propensity’ evidence is, exceptionally, admissible,” 548
Binnie (Justice): Handy case, 548–50
character evidence based on the law’s historical reliance on prior sexual history evidence in sexual assault cases, general mistrust of, 568
collusion as the “whiff of profit,” 560
corroborative evidence should never be called in sexual assault cases for fear of reinforcing the stereotype, 567
Courts appear to be focused on the issue of sex rather than on the domination and violence aspect of the encounter, 561
Courts have little difficulty admitting evidence in cases involving male complainants under the age of nineteen and female complainants over the age of eighteen, 563–64n89, 563n 88
Court’s heightened scrutiny dissimilarities in the sexual nature of incidents can be seen in the high number of exclusions post-Handy particularly in cases involving female complainants under the age of nineteen, 563
Criminal Injuries Compensation Board, 546, 559–60
doctrine of chance reasoning process in putative collusion cases, 551
doctrine of chances, 548, 551
Doherty (Justice) and anti-black racism in R v Parks, 552
Doherty (Justice) and prejudice facing black accused in R v C(D), 552–53
domination and aggression vs. sexual aspects of the conduct, 562
equality argument grounded in the “tit for tat” principle, 544–45, 549–50, 568
equality-oriented rule of admissibility, 547–50
exclusion in 44 percent of the cases involving female complainants under the age of nineteen, 563
formal equality justification, 553–56
Handy, 546, 548–49, 559–63, 568
L’Heureux-Dube (Justice) “the victim should not be denied recourse to evidence which effectively rebuts the negative aspersions cast upon her testimony, her character or her motives,” 556
identification cases, 550
identification cases are excluded from the presumption, 543
jury instructions to educate jurors about the prevalence of sexual assault in society and how rape is not an aberration or committed only by a “sick” individual, 568
Kennedy-Smith trial, 544
Lamer (Chief Justice), 548
Larskin (Justice): R v B(R) and question of whether sexual assaults occurred, 549
McLachlin (Chief Justice), 548
myths and stereotypes manifest themselves in sexual assault cases and impact, 558
as a narrow exception to the general exclusionary rule that the Crown cannot lead bad character evidence in criminal trials, 542
as possibly tainted by collusion in B(CR), 559
presumptive approach to admissibility, 543
presumptive rule, feminist critique of, 566–68
presumptive rule reinforces the stereotype that sexual assault complainants require corroboration, 567
presumptive rule reinforce the stereotype that men who commit sexual assaults are “deviants,” 567
putative collusion cases, 543, 551
racial bias impacting the trier of fact in its assessment of the cogency of the similar fact evidence, danger of, 553
related to incidents of rape, incest and child sexual assault, 557–58
R v Arp similarity standard, 550
R v B(CR), 542, 548, 556–57, 559
R v Blake (sexual touching of children), 564–65
R v B(R), 549
R v C(D), 552–53
R v D(LE), 556
R v Handy (“similar fact” evidence should be presumptively admissible), 18, 542–43, 545–47, 557, 559
R v K(A) (similar fact evidence excluded), 566
R v Mills, 3, 553, 596, 606, 706
R v Parks (anti-black racism), 552
R v Parsons, 555
R v Shearing, 560
R v T(L) (admission of similar fact evidence overturned), 565
R v Williams (racism against Aboriginals including stereotyping), 551–52
R v W(J) (similar fact evidence excluded), 566
sexual assault as a crime of violence vs. sex and passion, 545, 561–66
should be presumptively admissible in cases where the issue is one of commission of the actus reus, 568
similar fact adjudication and myths and stereotypes manifest themselves in sexual assault cases, 558
similar fact evidence (SFE) admissibility cases involving sexual assault, 557n63
similar fact evidence as possibly tainted by collusion in B(CR), 559
similar fact evidence in B(CR) and Handy cases, dramatic impact on the admissibility of, 561
similar fact evidence is a narrow exception to the general exclusionary rule that the Crown cannot lead bad character evidence in criminal trials, 542
similar fact evidence should be presumptively admissible in cases where the issue is one of commission of the actus reus, 568
similar fact evidence was excluded in 44 percent of the cases involving female complainants under the age of nineteen, 563
Sopinka (Justice) and rule has special application in sexual offences, 548
substantive equality justification, 556–61
Supreme Court of Canada and Ontario Court of Appeal expressed concerns about the reliability of, 558
Supreme Court: similar fact evidence can be admissible where it shows a specific (as opposed to a general) propensity to engage a particular kind of behaviour, including sexual assault, 548
systemic racism will lead to additional prejudice in the assessment of the evidence, danger that, 568
U.S. Federal Rules of Evidence, Rules 413 and 414, 543–44, 550
“whack the complainant” defence tactics, 545, 553–54, 556, 595

Simmons, Steve (Toronto Sun), 74, 81

Smart, Carol, 389, 423–24, 427, 488

Smith, Michael, 615

Snyder, R Claire, 259

Sobsey, Dick, 185

“social handicapping,” 179–80

social services agencies, 302

solitary confinement, 734

Sopinka (Justice), 548

Springtide Resources, 188

standard of care, breach, 215–16, 221–22

Stanko, Elizabeth, 257

Statement Validity Analysis (SVA), 202, 232

Statistics Canada
crime victimization survey, ongoing, 616, 620
“Measuring Violence Against Women,” 702–3
only 8 percent of 460,000 Canadian women sexual assault victims reported the crime to police in 2004, 613, 630, 632
Revised Uniform Crime Reporting (UCR II) Survey (2007), 620, 631
Statistics Canada’s Uniform Crime Reporting Survey, 627
unfounding rates for any crime are no longer published due to concerns that police are inconsistent in their use of categories, 627
Violence Against Women Survey (1993), 616

Steele, Lisa, 316

stereotypes
about disabled women’s sexual promiscuity and credibility, 180–81
allow both Aboriginal and white men to be absolved of responsibility for the rape of Aboriginal women, 686
held by police officers who decide whether a woman’s report will move beyond the investigating officer, 180, 622
that women are prone to lie and sometimes are motivated by money to do so, 561

Stermac, Lana, 374

“Still Punished for Being Female” (phrase from New York Times), 2

Stimpson, Liz, 175

Stinchcombe case (proceed to trial without a preliminary hearing), 134

Stonechild, Neil, 297

The Story of Jane Doe (Doe), 24–25, 37, 244, 246, 316

Strange, Carolyn, 684

stranger rapes, 220, 299, 391. See also rape

Stubbs, Julie, 698

studio of Shary Boyle, 317

substantive equality justification, 556–61

summary conviction proceedings, 136–37

Supreme Court of British Columbia, 648

Supreme Court of Canada. See also EB v Oblates of Mary Immaculate in the Province of BC (Oblates)
Bazley v Curry case (sexual abuse of boys in group home by a resident staffer), 151, 157, 160–62
Bill C-46 and probative value of thirdparty records, upheld the constitutionality of, 706
civil lawsuits: handled nine (9) lawsuits brought by adult survivors of child sexual abuse against those who created and operated institutions in which such abuse was enabled, licensed, ignored, and covered up, 151
consensual sexual encounters between PHAs and those who were not aware of the person’s HIV-positive status became criminal assaults, 635
court invoked utilitarian calculations about the unfairness to taxpayers or the undue burden on charitable enterprises and religious institutions, 153
court refused to address inequality that generated and rationalized children’s institutionalization which empowered abusers and facilitated serial abuse, inhibited or discredited reporting, excused institutional inaction and compromised resort to law as a vehicle of redress, 153
court resorted to rape myths and stereotypes long debunked by thirty years of data from rape crisis centres, 154
court sided with the institutions and against the children in most cases, 153
Dagenais v Canadian Broadcasting Corporation, 607
defence of “implied consent,” threw out the, 706
denial of equal protection, 233
disclosure of HIV-positive status is required by the criminal law before a person living with HIV/AIDS engages in sexual activity that poses a “significant risk” of transmitting HIV, 635
employer’s liability for injuries caused by an employee in the course of employment, rejected centuryold doctrinal formula for determining an, 160
Eve case: persons with mental disabilities cannot be forced to undergo sterilization for nontherapeutic reasons, 183
freedom of religion, 607
“harm principle,” the Court refused to recognize, 580
Hill v Hamilton-Wentworth Regional Police Services Board, 50
interpreted the Police Services Act to implicitly include a duty to investigate crime, 234
Jacobi v Griffiths, 151, 162
job descriptions of isolated abusers and inherent risks and liability of defendant enterprises, 162
male justices of the Supreme Court continued to describe the “mistake” defence as if nothing had happened in terms of legislative change, 497
Report of the Royal Commission on Aboriginal People (1996), court ignored, 155–56
Restoring Dignity: Responding to Child Abuse in Canadian Institutions (Restoring Dignity), court ignored, 155–57
risk of employee misconduct, five contextual factors determining, 161
ruled (1992) that rape shield provision violated constitutional legal rights of the accused, and was thus unconstitutional, 705
R v Hill, 13
R v M (ML): it is an error for a judge to rule that “a victim is required to offer some minimal word or gesture of objection and that lack of resistance must be equated with consent,” 493
sexual abuse, contextual analysis of, 161–62
similar fact evidence can be admissible where it shows a specific (as opposed to a general) propensity to engage in a particular kind of behaviour, including sexual assault, 548
vicarious liability of enterprises that managed Aboriginal residential schools, 162
who should bear the cost of institutional abuse?, 153
women justices of the Supreme Court preferred to decide cases on the basis of the law as it had been enacted by Parliament, 497

SVA. See Statement Validity Analysis (SVA)

systematic childhood assaults, 306

systemic
belief that women are liars, 234
discrimination in the enforcement of the criminal law, 228
prejudicial attitudes and belief in myths and negative stereotypes about rape victims by the public, 622
racism involving Inuit, 518
racism will lead to additional prejudice in the assessment of the evidence, danger that, 568
racist beliefs and stereotypes, 362
sexism in police investigations as a violation of Charter sexual equality, 250
subjugation of women, 2

T

Taskforce for Action on Sexual Violence [New Zealand], 67

Temkin, Jennifer, 487, 496

Tennov, Dorothy, 417

Te Ohaakii a Hine-National Network Ending Sexual Violence Together [New Zeland], 67

third party evidence, 281

third-wave
displacement of law, 259
feminism, 243, 245
feminists, 259, 263–64

Tiersma, Peter, 392

Tolmie, Julia, 351, 698

Toronto newspaper coverage, 48–49

Toronto Star, 47, 49

tort law, 10, 35, 51, 151

tort of negligence investigation, 215–16

trafficking of persons, 2, 146

transgendered women, 361

trial by a judge without a jury, 137

trial without preliminary hearing (Stinchcombe case), 134

Tse, Sandy (Crown Attorney), 79–80, 83

Turvey, Brent, 204, 232

Twain, Shania, 350

U

Ultimate Guide to Sex and Disability (Odette), 175

unfounded sexual assaults. See founded sexual assaults; police and court processing of sexual assault

UNIFEM, 183–84

United Kingdom, 50, 628

Ursel, Susan (lawyer), 31

US Bureau of Justice Statistics National Crime Victimization Survey, 614–15

U.S. Federal Rules of Evidence Rules 413 and 414, 543–44, 550

US Supreme Court
Booth v. Maryland, 693–94
Furman v Georgia, 693
McCleskey v Kemp, 679–80
Payne v Tennessee, 694–95

V

The Vagina Monologues, 299

“Validity Checklist,” 202

Vancouver Olympics (2010), 84

Vancouver Police Department (VPD), 84

Vancouver’s Battered Women Support Services (BWSS), 84

Vancouver’s Women Against Violence Against Women (WAVAW), 85

Vandervort, Lucinda, 490–91

VAW agencies, 187, 189

victim(s)(‘s)
“ideal,” 672, 677
of incest, 302
indemnification, 727
as label, 670–71
non-ideal, 672–74
profiling, 304–5
rights are often pitted against those of the accused, 666
rights movement, 283, 666–68, 670–71, 692
satisfaction with criminal justice system, 697–98
of sexual assault, 674–78
as status, 668–70
status, legal understanding of, 678–87
status and their racial identity, 674
unsympathetic, 673
witness assistance program, 428

victim-blaming attitudes
complainants resist, 16
focusing on the victim takes attention from the abuser, 670
judge’s reference to the complainant’s “complicity” to sexual assault, 515
by presiding judge, 524
of psy-disciplines, 434
Sisterhood’s recontextualization of rape and, 262
victim blamed for being the target of crime, 673

victim impact statements (VIS)
Aboriginal and racialized women have little if anything to gain from the VIS, 665
Aboriginal capital offenders, 684
Aboriginal Justice Inquiry of Manitoba, 685
Aboriginal women are five times more likely to be sexually assaulted than non-Aboriginal women, 689
“asking someone to indicate how she has been harmed by an offender is to ask her not only to identify herself as a “victim” but to expose her vulnerability publicly,” 689
Booth v. Maryland (US Supreme Court), 693–94
Bouck, John (justice), 691, 696
“classic rape” in legal discourse is the rape of a white woman, 678
Commission on Systemic Racism in the Ontario Criminal Justice System, 689
courts value harm caused to white victims differently from victims who are racialized, 678
criminal justice system “appears” to address the harms caused by sexual assault and by the sexual assault trial, 20
date rape scenario: black woman vs. white woman, 683
discrimination in capital sentencing of rape cases, 679–80
fraudulent rape charge, 680
George, Pamela (Aboriginal woman killed by white men), 673–74
harm suffered by victims of sexual assault, racialized women vs. white mainstream, 685
L’Heureux-Dubé (Justice): sexual assault is an assault upon human dignity and constitutes a denial of any concept of equality for women, 670
L’Heureux-Dubé (Justice): sexual assault is perpetrated largely by men against women, is mostly unreported, and is subject to extremely low prosecution and conviction rates, 670
L’Heureux-Dubé (Justice): victims of sexual assault are viewed with suspicion and distrust, 675
“hierarchy of victimization”: the homeless, the drug addict, the street prostitute, 672
impact on the victim, 687–91
input into sentencing, 691–97
male judges minimize harm suffered by Aboriginal women, 685
McCleskey v Kemp (US Supreme Court), 679–80
as misguided and problematic, 667
myth that women are presumed to be guilty of manufacturing their rape unless they can prove themselves “innocent,” 675
National Network to End Domestic Violence, 686–87
Native Women’s Association of Canada, 686
as not immune from racial, class, and gender biases, 668
as not useful for women who have been raped, 667
Ontario Court of Appeal on VISs, 696
as panacea for ills that plague victims in the criminal justice system, but they have potential to legitimize the experiences of some victims while further harming others, 692
as particularly dangerous for sexual assault, 668
Payne v Tennessee (US Supreme Court), 694–95
“placebo value” of VIS, 698
“potential to perpetuate racial, gender, class, and other forms of discrimination rampant in the criminal justice system,” 697
prostitutes are seen as blameworthy, 676
prostitutes are viewed as inviting violence, 673
racial categorization of raped women and victim blaming in cases of acquaintance rape, 676
racialized and Aboriginal women have much to lose if they participate as they are “non-ideal victims,” 20
racialized communities, including Aboriginal ones, have the least to gain from victim impact statements, 667
racialized women are viewed as “inherently less innocent and less worthy than white women,” 678
racialized women as victims of rape, devaluation of, 683
racist paternalism in clemency decisions, 684
Razack (Justice): Aboriginal women are viewed as “inherently rapeable,” 685
risk of further subordinating already vulnerable groups, 699
R v Labbe, 691
s 722 of the Criminal Code victims of crime can submit a written victim impact statement and present it orally at the sentencing hearing to convey the harm inflicted upon the victim by providing an assessment of physical, financial, and psychological effects of the crime, 666, 669
“second victimization” given the insensitive treatment often suffered by victims, 666
sexist and racist stereotypes entrenched in the criminal justice system, potentially rein-forces, 667
sexual assault sentencing decisions, have limited and sometimes troubling place in, 712–13
stereotypes allow both Aboriginal and white men to be absolved of responsibility for the rape of Aboriginal women, 686
victim, “ideal,” 672, 677
victim, the non-ideal, 672–74
victim, unsympathetic, 673
victim as label, 670–71
victim as status, 668–70
victim-blaming attitudes, 14, 16, 107, 243, 256, 262, 670, 676
victim of sexual assault, 674–78
victims are blamed for being the target of crime if their behaviour deviates from the culturally dominant norm, 673
victims are frustrated when their statements are edited by prosecutors for inappropriate content, including sentencing recommendations, 697
victim satisfaction with the system, no evidence that VIS improves, 698
victims must not only be articulate but must also be perceived as articulate in order to succeed, 690
victims’ rights are often pitted directly against those of the accused, 666
victims’ rights movement, 283, 666–68, 670–71, 692
victim’s satisfaction with criminal justice system, 697–98
victim’s status, legal understanding of, 678–87
victim’s status and their racial identity, 674
white men’s participation in violent domination of an Aboriginal woman was viewed as natural, 673
white women’s experiences of victimization are privileged, 678
women are blamed for their own sexual assaults, there is no shortage of examples of, 677
women are hyperscrutinized for any “risk-taking” behaviour that may have contributed to their rape (drugs or alcohol), 676
women offenders are punished for not conforming to accepted female roles, 695
women who know their rapists are viewed as less credible, despite the fact that women are far more likely to be sexually assaulted by someone they know than by a stranger, 676
women who physically resist are seen less sympathetically for deviating from gender norms, 677–78

victimization
of female partners and ex-partners, 488
hierarchy of, 672
surveys, 19, 63, 614–17, 630

victimology analysis of women’s experiences, 360

videotaped statement
by children, 132
by the complainant, 131–32, 137–38
defence counsel changes the advice given to their clients leading to guilty pleas, 135
saving of significant public and private legal resources, 135

violence against women
crimes of, 4
lost opportunities for women’s talent to enrich society, 5
no quick solutions for elimination of, 2–3
physical injuries often heal vs. psychological scars may last forever, 4
women blame themselves and suffer a sense of defilement, depression, anxiety, split personality and problems with physical and emotional intimacy, 4
women fear that they will not be believed, 4

Violence Against Women (VAW), 13–14, 358, 360, 365, 382, 420

“Violence in Hockey” symposium (Middlesex-London area), 83–84

violence on society, 4

VIS. See victim impact statements (VIS)

voluntary sterilization, 186

VPD. See Vancouver Police Department (VPD)

W

Walklate, Sandra, 670–72, 678

Walsh, Anthony, 698

Watson, Lilla, 311

WAVAW. See Vancouver’s Women Against Violence Against Women (WAVAW)

websites

www.playthe game.org, 74

Weisstub, David, 671

“whack the complainant” defence tactics, 545, 553–54, 556, 595

whipping with “cat o’ nine tails,” 729–32

white men’s participation in violent domination of an Aboriginal woman is viewed as natural, 673

white supremacy and patriarchy protect some men’s accounts, 600

wife assault, 177

Williams, Aaron, 599

Witness My Shame (Boyle), 317

wives’ marital duties, 586

women (women’s). See also disabled women
anti-rape centre, 303, 306
anti-violence services, 358
blamed for their sexual assaults, 677
bodily security, disregard for, 537
centres, 301
complainants face sexist and racist remarks by police, judges, and over-zealous defence lawyers who use questionable tactics to embarrass, violate, and denigrate their character, 595
credibility problems with police, 12
with disabilities are vulnerable to having their rapes decriminalized if unable to offer an account of the assault to challenge the accused’s version, 488
equality demands that “mistake” defence be barred where the defence is solely based on conjecture as to “mistake” as opposed to evidence of actual reasonable steps, 537
equality rights, 541
equal rights to security of the person and to sexual autonomy when they are unconscious, 535
hyperscrutinized for “risk-taking” behaviour that may have contributed to their rape, 676
if women have responsibility for rape prevention then men have responsibility for sexual violence, 256
inclusion in the workplace, 2
negative experiences by women with the legal process since 1993 have reduced women’s confidence that they will be treated with dignity, fairness, and compassion, 617
offenders are punished for not conforming to accepted female roles, 695
in prostitution, murder of, 2
raped while drunk, drugged, or asleep doubt themselves and doubt the criminal justice response and rarely report their rapes, 485
relive their horrifying experiences of rape and sexual abuse in court, 604
rights to equality and autonomy vs. proposition that women are presumptively consenting, 536
safety and autonomy, disregard for, 535
security of person interests should be protected while they sleep or recover from drug or alcohol ingestion vs. men pursuing their own sexual desires, 538
sexist prejudice undermines the legal protection of women’s physical integrity, 569–70
sexual autonomy, 586
sexual freedom, 586
shelters, 5, 301, 306
ski jumpers, Olympic, 86
survivor-based, survivor-directed model, 412
white women’s experiences of victimization are privileged, 678
who know their rapists are viewed as less credible, despite the fact that women are far more likely to be sexually assaulted by someone they know than by a stranger, 676
who physically resist are seen less sympathetically for deviating from gender norms, 677–78

Women Against Violence Against Women (WAVAW), 24, 244

Women and Madness (Chelser), 418

Women’s College Hospital Sexual Assault Care Centre, 374

Women’s Legal Education and Action Fund (LEAF), 24, 55, 606–7, 611

Women with Disabilities Australia, 174–75

Y

Yaros, Diana, 409

Z

Zegouras, Adam (Crown Attorney), 77–78, 81

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