Sexual Violence

Craig (2018) argues that failures to apply the ___________ (established in R. v. Ewanchuk, 1999) result in legal, moral, and gendered harms.

affirmative definition of consent

What were the 3 cases from Craig’s (2018) paper?

1. R v B(IE) → lack of resistance does not equal consent

2. R v. Adepoju → giving in does not equal consent

3. R v. Wagar → Victim blaming (“knees together”)

R v. B(IE) (2013)

• Complainant was intoxicated and followed the accused outside a bar; he led her behind a dumpster and forced oral sex.

• Judge (Justice Moir) acquitted, stating the accused was “entitled to think” she was consenting because she didn’t protest or run.

• Craig critiques this as a fundamental misapplication of consent law:

  • Canadian law requires affirmative consent—a clear “yes” through words or actions.

  • Passivity or lack of resistance ≠ consent.

  • The “reasonable steps” requirement (s. 273.2(b) Criminal Code) demands the accused actively ensure consent.

• The judge’s reasoning relied on archaic rape myths (that women who don’t resist are agreeing, or "the woman could have walked away).

• The Court of Appeal overturned the acquittal, finding the reasoning contrary to established law.

R v. Adepoju (2014)

• The complainant resisted repeated sexual advances but eventually “gave in” after 15–20 minutes of persistence.

• Judge (Justice Sisson) accepted her evidence but ruled that she “gave in” and thus consented.

• Craig identifies multiple legal errors:

  • Misunderstood actus reus—sexual assault includes any non-consensual touching, not just penetration.

  • Equated submission with consent, which law explicitly rejects.

  • Ignored coercion and exhaustion as negating voluntariness.

• The Alberta Court of Appeal overturned the acquittal, entered a conviction, and remitted to the original judge for sentencing.

• Craig highlights how this decision exemplifies “persistence as persuasion”, a deeply gendered stereotype normalizing coercion.

R v. Wagar (2015)

• Woman locked in a bathroom by a man at a house party and sexually assaulted.

• Justice Robin Camp’s notorious case where he asked the complainant why she didn’t “keep her knees together.”

• Demonstrated not just ignorance but open disdain for the law of consent.

• Camp repeatedly misapplied the law, blamed the victim, and mocked the requirement that accused take “reasonable steps.”

• His comments (e.g., “Isn’t there an onus on her to be more careful?”) mirrored pre-Ewanchuk attitudes that women must avoid sexual harm.

• The Canadian Judicial Council ultimately removed Camp from office, finding his remarks displayed “obvious disdain” for sexual assault law.

 

Sexual assault is the only violent crime in Canada________

not on the decline.

Prior to ____, there were not criminal legal repercussions for a husband who raped his wife.

1983

the lack of criminal repercussions for a husband raping his wife was based on …

Based on the misconception that marriage implies consent to sex, as well as a misconception of a husband having the right of sexual access to ‘his’ wife.

 

• There are gendered overtones in terms of a woman then being imagined as a person to which a man has rights to have sexual access to her (i.e. that she is to sexually service her husband)

Spousal immunity was challenged in _____, with ______

1983

Bill C-127

Bill C-127, passed in 1983, also brought about changes regarding the ________

definition of rape

After 1983 legal reforms, what language is now used?

Language of “sexual assault” is now used.

 (with 3 types) 

• Shifted to a focus on violence and power and harm.

• Broader understanding/definitions of sexual assault (for more convictions)

• Challenges heterosexual interpretations of sexual assaults, and understanding that anyone can experience sexual violence.

 

"Forced vaginal penetration" --> "unwanted touching that is sexual in nature"

Another series of significant changes to sexual assault laws in 1992 included changes to _______ and _________

evidence laws and definitions of consent.

Reform of Evidence Laws (1992)

Evidentiary protections were developed, to limit defence lawyers from bringing up, and focusing on a victim’s sexual history.

 

• This reform is often referred to as “rape shield laws” – aimed to prevent lawyers from bringing up sexual history with the intention of discrediting complainants (ex. frame them as unreliable or the incident as consentual)

 

• Attempted to focus on the incident in question, rather than the individuals history.

 

However, in practice, lawyers have found ways to bring up this information even in modern cases.

rape shield laws were enacted in ______; what did they do?

1992
aimed to prevent lawyers from bringing up sexual history with the intention of discrediting complainants (ex. frame them as unreliable or the incident as consentual)

In the Reform of definitions of Consent (1992), For the first time, a statutory definition of consent as a ________ was embedded in the criminal code

voluntary agreement

“the voluntary agreement of the complainant to engage in the sexual activity in question.”

How was the “unconscious” addition to the consent law added?

(R v JA) from the Supreme Court of Canada,

• where the victim initially consented, but then went unconscious after choking but the partner continued.

• The court then ruled that a person cannot consent if the person is unconscious (i.e. no defense for 'advanced consent')

Generally, the age of consent for sexual activity is 16 years. However, the age of consent is 18 years where the sexual activity involves…

prostitution, pornography or occurs in a relationship of authority, trust or dependency (e.g., with a teacher, coach or babysitter)

How has the law shifted to affirmative consent?

• The onus (the responsibility) is to be on the accused to demonstrate/argue that they obtained consent.

  • i.e. consent is to be actively obtained, understood, and ongoing.

Why is the shift to affirmative consent important?

Meant to shift the focus away from the survivor having to demonstrate that they did not consent.

 

• Yet in practice, victim-blaming and attacks on credibility of the complainant/survivor persist – scrutinizing their actions prior to, during, and after an assault.

Ewanchuk case (1999)

• First trial in Alberta; Ewanchuk (with multiple other offenses for sexual assault) had invited a 17 year old woman to do a job interview in his van (i.e. to see carpentry work), and pretended to lock the door.

• He started to make sexual advances, became aggressive, and she was afraid she would be hurt, so, she tried to appear relaxed and normal.

• He was charged with sexual assault, and at the original trial, the judge acquitted Ewanchuk by reasoning that there was implied consent from her relaxed appearance.

• Went to the Alberta court of appeal (from Crown Prosecutors) and they also said that Ewanchuk should be acquitted.

• Went to the supreme court of Canada in 1999, concerning misinterpretation of consent (i.e. there is no such thing as implied consent), and Ewanchuk was charged.

The Ewanchuk case went to the supreme court of Canada, and helped to …

clarify the laws regarding consent, and how to use and interpret the criminal code.

Craig has raised concerns about ________ and __________ of sexual assault laws in the courts (or applying them incorrectly)

stereotypes

misunderstandings

Regarding judges, Craig notes that “in each case [that she examined in her chapter], the trial judge’s analysis of whether there was consent, or a mistaken belief in consent, appears to have been informed by ___________” (Craig, 2018, p.205).

stereotypes about sexual violence

Craig raises concerns that judges presiding over criminal law cases, do not necessarily have …

backgrounds in criminal law.

“Judicial appointments processes in Canada have been assessed by some as among the weakest in the world. One of the main concerns is that political considerations – that is to say, political patronage – rather than merit-based factors, such as experience and expertise, play a dominant role in _________ s by governing parties in Canada” (Craig, 2018, p.209).

the selection of judge

“This is not to suggest that only judges with criminal law practice experience are qualified to handle criminal cases. Nor, as already explained, is it to suggest that judges can be expected to have mastered every area of law, or even every aspect of a particular area of law.

Nevertheless, the prospect of judges who do not appear to ______________ suggests a significant failing of the appointments process, judicial education programs, case assignment, or some combination of the three” (Craig, 2018, pp.209-210).

understand or ably apply the legal definition of consent presiding over sexual assault trials

Another challenge with sexual assault cases has been an emergence of what feminist legal scholars have been referring to as the "__________"

rough sex defence

• In regard to consent, there have been concerns that over the past decade that people have been using SM (Sadomasicism) as a way to argue against sexual assault allegations.

Feminist and critical scholars argue that courts are structured around _________ priorities, not victim wellbeing.

patriarchal and state-centered

Trials treat sexual assault as a ___________ making the victim a witness rather than a rights-bearing participant (Smart, 1989).

crime against the state

Processes like ________________ (Christie, 1986) sustain secondary victimization.

cross-examination, evidentiary rules, and expectations of “ideal victims”

Judicial rape

sexual assault trials being equally as abusive as the original offence.

Victims’ needs (validation, safety, closure) often conflict with the legal system’s focus on

procedural proof and credibility.

What were the 5 main findings of Spencer’s (2018) study?

1. court system as flawed and revictimizing

2. lack of understanding and training among judicial actors

3. systemic barriers: wait times and cross examination

4. unrealistic expectations of victims (“ideal victim” stereotypes)

5. disconnect between police and courts

Officers broadly criticized courts as

archaic, adversarial, and poorly suited to sexual assault cases, rarely resulting in justice.

rigid, slow, and prioritizing procedural correctness over truth or wellbeing.

Many officers felt that judges and crown prosecutors lack ___________. What example do they back this with?

understanding of trauma and sexual assault dynamics.

• Some referenced Justice Robin Camp’s comments (“why didn’t you keep your knees together?”) as emblematic of ignorance and misogyny.

What were some of the systemic barriers police mentioned?

• Long trial delays—sometimes years—force victims to relive trauma repeatedly and discourage participation.

• Cross-examinations viewed as “re-traumatizing” and excessively adversarial.

• Officers observed victims losing faith and withdrawing from cases due to these processes.

Officers recognized that trauma responses like freezing, delayed reporting, or inconsistent memory are normal but misinterpreted as _________ in court.

unreliability

Officers felt that even when they do their jobs well, courts _________ through acquittals and poor handling of victims.

undermine the process

Some police admitted this frustration of disconnect influences their __________ or willingness to _________

charging decisions

pursue certain cases.

Responses to sexual assault can be influenced by: 

• Heavily racialized

• Class

• Sex workers (often blamed)

• LGBTQIA+

• Gendered (ex. Men are still not understood as victims).

Why is there a low reporting rate

many individuals avoid reporting or going to the police at all

Ex. think they will not be believed, hesitency surrounding the justice system, fear around police themselves, retaliation, internalization of victim blaming.

Unfounded rates (definition)

the label police apply that “indicates the investigating officer does not believe a crime was attempted or occurred”

Globe and Mail investigation (2017) Found that ______ sexual assaults were being deemed to be "unfounded"

1 in 5

Stats Canada 2017 (Kelowna, B.C); the RCMP detachment dismissed more than ____ of sexual assault reports as "unfounded."

40%

Based on the high unfounded rates, and the low reporting rates — what was Spencer et al., (2018) question?

 is this high unfounded rate because police see the difficulty and failures of the legal system and then dismiss cases because of low confidence in the courts (not in the victims or case).

MeToo movement Started by _______  

Tarana Burke in 2006 with a focus in black women and girls.

How was the MeToo movement popularized?

• Popularized when Melissia Melano (white woman) had posted about her experiences.

• At the height of popularity, it included open and public discussion about sexual harassment, violence, and assault.

What is the criticism of the MeToo movement?

it is NOT new to be speaking out against sexual violence (i.e. to be pushing for conversations)

• Second wave feminism (1960s 70s; consciousness raising) --> lots of activism for women to be able to disclose violence and hold perpetrators accountable.

“Boyle (2019) differentiates the movement from the hashtag, and explains, ‘[W]hat makes the #MeToo movement distinctive is less the speaking out – which women have been doing for decades ... but rather the ______________’ (p.5). Philosopher/legal scholar Martha Nussbaum (2021) also notes the movement’s ability to bring attention to sexual violence, but reflects that women have been disclosing their victimization for decades. #MeToo has increased awareness, but the need for change and accountability remains” (Maier, 2023, p.337).

extent to which some of these stories have been widely heard

Maier (2023) examined what people working in support of sexual assault survivors thought about the MeToo movement. 
What were their findings?

• Advocates spoke positively about the MeToo movement creating support for others (i.e. letting them know they are not alone, validation of similar experiences).

• Advocates spoke positively about the MeToo movement reducing stigma around sexual violence, and shifting narratives away from victim blaming.

• Spoke about trying to bring about broader awareness and the prevalence of sexual violence.

Maier (2023) examined what people working in support of sexual assault survivors thought about the MeToo movement. 
What would their critiques/concerns?

• Concern that the number of reports would be so high that it would bring about the assumption that reports are false. (i.e. increased awareness = increased critiques of their case)

• Survivors may feel pressure to disclose assault and be part of the movement.

  • There are many ways to challenge sexual violence, it doesn't have to be disclosure.

• The movement was traumatizing for many survivors, particularly at the height of the movement, where their social media was flooded with talk of sexual violence.

• The emergence of defamation cases or civil suits

  • without protections for victims -- Ex. rape shield laws do not apply.

In 2023’s Bill S-12, there were changes to the ___________ and some changes regarding victim’s rights including _______

national sex offender registry

(publication bans of victims names in sexual assault cases).

First sex offender registry in Canada in_____ , through the

 

2004

"sex offender information registration act"

In 2004, how did the sex offender registry work?

• If a Crown prosecutor applied to have an offender added to the list, then a judge would decide on if a name should be added (based on if public safety versus the offenders privacy was more important in that case)

In _____ , judges no longer had discretion and those found guilty of a sexual offence were automatically added to the list.

2011

 R v Ndhlovu, Supreme Court of Canada, 2022.

• 2015 - Ndhlovu plead guilty to 2 counts of sexual assault.

• Judge felt that he was not likely to reoffend, but he had to put him on the registry (based on new mandatory changes).

  • Requires regular check ins, notification of any information and plans, can be subjected to random checks by police.

• Ndhlovu challenged this, saying it was a violation of his charter rights (s.7), and that the law was overly broad in that he should be monitored for life under the threat of imprisonment from the state.

• Judge sided with him that he shouldn't be registers, the crown appealed that decision (saying the act was constitutional)

• Appealed again and went to the Supreme Court of Canada.

• 2022 - decision made that the law is unconstitutional

Why was the R v Ndhlovu conclusion important?

made the sex offender information registration act unconstitutional.

Regarding victim’s rights, victims now have …

say regarding publication bans on their names and

also have rights to more information about their case.

Why were publication bans a problem?

Publication bans were meant to protect the identity of the victims, but then people were concerned that they couldn't talk about their own cases, and the possibility of legal reprocussions.

Melanie Randall (2010) remarks, “the criminal law of sexual assault in Canada looks pretty good, statutorily speaking ... however, serious and troubling difficulties persist within the Canadian legal landscape, especially pertaining to the ___________ of sexual assault in the criminal justice system” (p.399).

actual processing of crimes

Hockey Canada case

• Victim (E.M.) had consensual sex with one of the men, then he invited the other 9 men to the room without her knowledge, and she came out of the bathroom without clothes on.

 

• Two-month-long trial against 5 hockey players.

• Key issue in this case around consent and how it was interpreted.

• Case failed multiple times when a jury was used, so it moved to a judge-only trial.

 

• The judge reasoned that the victim was not credible and dishonest; that they consented to the sexual acts in question, and that her consent was not undermined by fear.

• Judge found that the guilt of the men could not be found beyond a reasonable doubt because of the evidence (deemed not reliable).

 

• The victim (EM) had to testify for 9 days and was cross-examined by multiple teams of lawyers.

• Only one of the men testified (4 did not)

  • Inconsistencies of the man’s testimony was not considered

 

• All sexual assault charges against them were acquitted.

"the vast majority of sexual assault and unwanted sex is never reported to the police, never making it anywhere near the criminal justice system, this is the "_____________."

sexual violence justice gap

“But in sexual assault cases that do land a court room, a failed understanding of ________ in law, it evidently leads to flawed legal decision making and judgements.”

affirmative consent

Worse, the public shaming of E.M. will likely _______ confidence in the criminal justice system and deter other women from even considering reporting their sexual assault experiences. Fundamental questions about consent need better legal answers."

decrease

In the hockey canada case, The defence focused solely on_________, constructing a distorted characterization of E.M.’s state of mind. Lawyers launched a co-ordinated, intense, virulently victim-blaming and rape-myth infused attack on E.M.

subjective consent

Regarding the hockey canada case, Randall quoted “What kind of __________ and arrogance enabled a group of young male athletes to pursue being sexually serviced by a young woman they described as acting “crazy” and “weird”?”

masculine entitlement

Regarding the gap between robust sexual assault laws in Canada and what happens in practice (e.g., underreporting, problems with interpretation and application of the laws), what are some ways that this gap could be closed (e.g., more legal reform, other social changes)?

• A comprehensive sexual assault unit

• Training individuals sent out to police calls and interviews

• More selective process of judges, lawyers, and prosecutors.

• Access to more resources without barriers.