Sexual Assault in Canada Between 1986-1990

Treena Smith & Lisa Nguyen
Department of Psychology
Simon Fraser University

In the years between 1986 and 1990, Canada was forced to recognise the prevalence and possible treatment and prevention sexual assault crimes. In 1983, Canada sought reforms for the old rape law and substituted it with the new sexual assault laws with the hope of redefining the nature of sexual assault laws as well as seeking tougher enforcement procedures. Thus, Bill C-127 was passed within that year, and since its introduction it has aroused many academics and legal critics to question its impact on law enforcement. During the late 1980s, critics have argued that the new sexual assault law had created many loopholes that would allow many defences for sex offenders to be admitted into court. The concern was that this would lead to an increase in the number of assault cases that would be dismissed. This growing concern for the welfare and safety of sexual assault victims and the society at large has led many academics to conduct extensive research into the nature of sexual assault and its effect on the victims. This was done in order to educate the public and the victims as well as to encourage more reforms to the law itself for better enforcement. We have found that the journal of Canadian Psychology has carried many publications of research studies concerning sexual assault from 1986 to the end of 1990. With this paper, our purpose is to assess the contributions of these research data on the law reforms and law enforcement of sexual assault.

In 1987, Mark Borzecki and Stephen Wormith from the University of Ottawa published their research in the journal of Canadian Psychology on the effectiveness of sex offender treatment programs offered within provincial and state correctional facilities and other related mental health agencies. Descriptions of twenty-two US and twelve Canadian programs were received and they were examined on the basis these elements: the year of implementation, participating agencies, target population, referral sources, assessment capacity, staffing, treatment duration, treatment intensity, therapeutic services, therapeutic orientation, evaluation and follow-up (Borzecki & Wormith 1987). It had been noted that sexual offenders accounted for 8-12% of the federal prison population in Canada and an average of 10% in the US. The purpose for their assessment of programmes' effectiveness was in response to society's growing concern for the safety and well being of its citizens and the realisation that treatments for sex offenders are crucial to that safety security. Thus, the more effective the treatment programs, the better off will be the offenders, the lesser the recedivate rate. Maclean's 1988, remarked in an article that although some offenders could be helped or rehabilitated by treatment programs, there are no guarantees that they will work.

Added to the growing concern has been the media coverage of sexual offences and the release of sexual offenders back into the community aroused fears and safety concerns in the public, thus, they were demanding effective management policies and treatment programs for these ex-offenders. The result of this survey of treatment programs in the US and Canada indicated a clear diversity of programs based on target populations and differing therapeutic orientations. In Canada, the mode of treatment on deviant sexual behaviour was a behavioural approach. Three quarters of all programs in Canada had a strong behavioural orientation, and treatment was either voluntary or court ordered. In comparison, American programs were psychodynamic and specialised to fit the individual sex offenders. This type of treatment scheme has not yet been implemented in Canada.

Programs in both countries were focused on rapists and pedophiles. The programs varied in intensity (2-25 hours per week) and duration (5 sessions to 2 years). The staff consisted of professionals from various disciplines serving at community non-profit agencies to private agencies like the Elizabeth Fry Society and the John Howard Society. Whereas most Canadian programs were provided in an inpatient format, American programs were divided into resident and outpatient schemes. In most cases, it was up to the client to follow-up with the treatment for therapeutic gains, but once paroled the sex offender rarely continued with treatment. Thus, one has to wonder whether these offenders receive the treatment needed to be rehabilitated. Often, sex offenders had issues of denial that needed to be focused upon and they needed to realise the importance of treatment for their well being. If a sex offender does not take responsibility for his or her crime, then any treatment of program will have little therapeutic effect. As one can see, there was a clear need for advancement in treatment programs in Canada. Treatments needed to be specialised for specific offenders, and there needed to be a strong commitment between both the offender and the therapist to implement change.

This study by Borzecki and Wormith was also necessary in order to make the public and the policy makers aware of the nature of sex offenders treatment programs in Canada. Another aim of this study was to equip the public with the knowledge they needed to avoid becoming victims of sexual assault, but before teaching the public how to protect themselves against potential attacks, the myths and misconceptions of the identity of the sexual offender must be made clear.

In 1988, Renner and his colleagues at Dalhousie University were addressing the realities of sexual assault by addressing some of the common myths and misconceptions about sexual assaults in hopes of educating the public as well as encouraging psychological research in this area. There were widespread beliefs that if there was a relationship between a man and a woman then there was no potential danger of being sexually assaulted by that person, because they knew each other. In a relationship, it was also believed that unwanted sex seldom occurred and if it did, then it was not rape. In actuality, most sexual assaults are committed by people known to the victim, such as their intimate partners and others such as authority figures whom they trust.

Because we all share the same culture and consequently the same misconceptions, victims often blame themselves for their misfortunes if they were individually sexually assaulted either by an acquaintance or by a stranger. The victims blame themselves with such things as being too attractive or for dressing too provocatively, thus, resulting in unreported sexual assaults and an unwillingness to seek social or legal support. However, if they seek help, the victim would be victimised again by the police and the legal system

In most rapes, men used aggressive force against their victims. However, the sad fact is that only one-fourth of the victims contacted authorities (Edward, Wackell & Ganderton, 1988). They found that of the cases that were reported to the authorities, only those cases that showed the greatest level of violence received medical and legal assistance. Thus, if the assault was not violent enough or committed by someone the victim knew, then she was not regarded as a legitimate victim of rape. This study also made known that the further the woman's behaviour or life style was outside acceptable social limits of normative behaviour, the more likely she was to experience guilt over the assault, thus reflecting on her own beliefs about cultural expectations. For instance, if she did not resist during the rape, the she must have deserved or encouraged her own victimisation. But the fact of the matter is, how could she resist when resistance can cause her more physical injury or even death.

In light of these social problems, Renner and his associates wanted to make clear the nature of sexual assault so that women could overcome the social stigma associated with rape and be freed from negative social judgements made by others. The reality is, one doesn't only get victimised by strangers but by people she knows as well. In addition, sexual assault is a crime of violence and it is not the woman's fault. It was hoped that data from studies such as these could contribute to the public's understanding and increased awareness of the effects of the sexual assault upon the psychological functioning of victims. It was also anticipated that victims would come forward to seek help to begin the healing process through natural support systems.

This awareness led Burgess and Holmstrom to come up with the term, "rape trauma syndrome" to describe the psychological impact of rape on the victim and the need for professional counselling. Since then, psychologists have appeared in courts as expert witnesses on behalf of the victims. Crisis interventions have been established to guide the victim to take constructive actions when he or she is in a state of emotional turmoil. More importantly, this kind of awareness has made it possible to implement changes in the sexual assault laws so that more offenders can be charged in order to ensure protection for society.

Another study pertaining to the topic of sexual assault was initiated in 1988 as an exploratory study to investigate the impact of police enforcement of the new sexual assault laws, specifically, Bill C-127 that was implemented in 1983 into the Criminal Code of Canada. The Bill abolished the charge of rape and substituted it with sexual assault in an attempt to make it easier for women to report incidents to the police, for the police to charge offenders and for the courts to make convictions (Hinch 1988). But how effective have these law reforms been in meeting those objectives? Some critics of the legislation were concerned even before implementation about the abandonment of the name " rape," as well as the inclusion of the "honest, but mistaken belief of consent" defence. It was feared that the Bill would not be able to make the charge of sexual assault stick in courts. Upon evaluation, the new Bill has shown minimal impact upon police decision making. Since there was no distinction between rape and attempted rape, there has been a decline for all of Canada in the rate at which sexual assaults have been dismissed as unfounded. Also, because Bill C-127 did not define sexual assault, the police and the courts have been making their own interpretations, thus resulting in little change in the way police perceive and respond to complaints of sexual assault.

Even though the Bill clearly states that penetration or corroboration need not be proven, police were often reluctant to proceed with complaints if the victim could not prove she was penetrated. The police often fear that such claims would not stand up in court and would make poor court referrals. Bill C-127 has kept the door open for many charges to be dismissed, thus maintaining high victimisation. Thus, Bill C-127 has had minimal impact on convicting offenders of sexual assaults. Such flaws in legislation has done little to change the pattern in which police continue to make effective decisions

Another study that was conducted by Hinch in 1988 pointed out other inconsistencies and contradictions that could be found in the new sexual assault laws. Canadian feminists initially viewed this reform as a progressive change for the anti-rape movement and championed it as the legislative reforms that they had been waiting for. There was no question that the change of the rape laws to sexual assault was also directly linked to years of criticism from feminist thinkers. However, looking back on the changes that were made by Bill C-127, how much did change within the Canadian Criminal Law?

It appeared that Bill C-127 was not the cure-all law for sexual assault that it was once thought of because many incidents of a sexual nature were being trivialised. The new rape legislation contained three levels of sexual assault. The purpose of the three tiers was to lump all the relevant types of sexual offences together (Hinch 1988). However, in some cases where vaginal penetration occurred, it was being treated as and equated with, other unwanted sexual touching (like grabbing one's breasts.) On the other hand, acts such as fondling someone's breasts while brandishing a knife would be classified as aggravated sexual assault, which was also, one of the most serious charges under the new sexual assault legislation. Furthermore, there are some acts of a sexual nature that could not even be charged as sexual assault. For example, in one case non-consenting touching of the behind was not considered sexual assault because no genital area was touched, rather, this act was merely classified as assault. Another example of where the new sexual assault laws have proven ineffective is in a case where a man was "French kissing "a ten year old girl. The court held that since not genital area was touched, that no sexual assault occurred.

These issues and many other documented accounts demonstrate that there are some acts of a sexual nature that are going either not prosecuted at all or prosecuted at a lower and irrelevant charge. One critic, Alder in 1987, claimed these and other problems are caused by a lack of a clear definition of what constitutes a sexual assault. With the sexual assault law, it seems difficult to determine at what point unwanted touching becomes a sexual assault.

Another discrepancy found with the new sexual assault legislation is the admissibility of reputational evidence. In the old rape legislation, defence lawyers could put the victim on the stand and discredit her or his character by bringing up and revealing issues about the past (Hinch 1988). Bill C-127 clearly stated that history of a sexual reputation is inadmissible if it questioned or discredited the victim. However, under Bill C-127, evidence pertaining to sexual reputation could be admissible in a court of law if it included relevant information about the accused. Secondly, reputational evidence could be submitted in a hearing before the trial where the victim was not a compelling witness. This evidence could then be established as admissible and used to discredit the victim at trial time. Furthermore, the decision to prosecute by the police and other agencies could be influenced by the potentiality of their witness being a victim of character assassination.

Conclusions

Canada has recognised the physical and psychological consequences of domestic and sexual violent acts (Baylis & Myers). Over the last few decades, particularly with the new Bill C-127, health officials, social workers and others who work in the area of domestic and sexual violence have learned that violence does not occur in isolation, rather it is a widespread problem. Many laws and criminal justice agencies try to make it an easier process to accuse, prosecute and convict someone who is guilty of a crime of a violent nature, but some criminals still seem to be falling in between the cracks of the criminal justice system. However, many communities and other small organisations are taking it upon themselves to help prevent the occurrence of sexual violence. For example, in response to the rape and murder of a University of Waterloo student, the student's federation in 1986, raised money and started the Safety Van Program, which focused on women getting home safely in the dark. (Baylis & Myers, 1990). Many Canadian communities are now taking responsibility for their own members. Community services are essential for the support and counselling of victims. An article, which appeared in Chatelaine in March 1989, wrote that victims of sexual assault need medical aid and emotional support and that these services needed to be found within the community.

References

Baylis, Michael G., and Myers, Anita, M. (1990). Combating sexual assault: an evaluation of a prevention program. Canadian Journal of Public Health, 81, 341-344.

Borzecki, Mark and Wormith, Stephen, J. (1987). a survey of treatment programs for sex offenders in North America. Canadian Psychology , 28, 30-44

Hinch, Ronald. (1988). Enforcing the new sexual assault laws: and exploratory study. Atlantis, 14, 109-115.

Hinch, Ronald. (1988). Inconsistencies and contradictions in Canada's sexual assault law. Canadian Public Policy, 14, 282-294.

Phillips, Catherine. (1989, March). The aftermath of a sexual assault. Chatelaine, 44.

Treating sex criminals. (1988, July 18). Maclean's, p. 46-47.