Gender-Based Violence in Canadian Law and Public Opinion: Sexual Assaults

By Wendi Winter

The value of a woman’s word can be measured through their experiences in a rape trial. Looking at court cases and rulings in the early 1900’s shows that women’s words and experiences were of little value. When women’s testimonies of their rapes were weighted too heavily in the decision to convict, appeal courts were quick to overturn these judgements. Public views that women were of less value than men influenced how judges conducted trials. To this day, public opinion and activism inform Canadian law on rape and sexual assault. While the law has undergone drastic changes since the implementation of the Criminal Code, has public opinion changed with it? 

In 1892, section 266 of The Criminal Code defined rape as “the act of a man having carnal knowledge of a woman who is not his wife without her consent, or with consent which has been extorted by threats or fear of bodily harm, or obtained by personating the woman’s husband, or by false and fraudulent representations as to the nature and quality of the act.” This definition highlights that married women could not be raped by their husbands, nor could a male claim to have been raped. Throughout this time, there was an understanding that women were property, their value owed to the head of their family. This concept of women as commodities was enshrined in “rape law.” Perpetrators had to pay fees for the “damage” done to women through rape to their male family members. Women were not considered “persons” by the Criminal Code of 1892 and therefore could not petition for charges. When women claimed someone had raped them, public opinion deemed them “fallen women” because they were unable to manage a man’s lust. Victims were unmarriageable making them a burden on their family. 

While the definition for rape did not change until the 1950’s, in the early 1900’s this began to shift, with women increasingly pursuing jobs in the public sphere and their new legal status as “persons”. In 1929, the “Famous Five,” petitioned for women to have the status of “persons” in Canadian law. This newly granted status allowed women to hold positions of authority within the Federal government. As women began to make a name for themselves in the world of work, they began pursuing charges of rape against the perpetrators themselves. Their new status as “persons” meant they no longer required a male relative to petition the courts. However, the perception that women were weak and devious, as well as doubt surrounding the validity of their claims of rape, quickly became enshrined in law. Juries were frequently reminded that accusations of rape were very serious, and, while they are easy to lay, they are difficult to disprove. It is this mentality that led to the requirement for corroboration of womens’ accounts of their rapes. Without a witness to corroborate their story, many victims found no justice. When men were convicted of rape, they became labelled as sexual deviants and their actions were seen as symptoms of mental illness. 

In the mid 1900’s, the definition of rape began to further solidify as an action done by a “male person” to a “female person” (Criminal Code, S.C. 1953-54, c. 51, s135). The idea of “implied consent” became an unwritten law stating that a married woman could not be raped by her husband because he had received implied consent. Public opinion towards rape victims and their struggles changed in the mid 1900’s with feminist activists petitioning for changes to the Criminal Code. It was a direct result of feminist actions and work, that in 1983, when Bill C-127 An Act to Amend the Criminal Code in Relation to Sexual Offences and Other Offences Against the Person and to Amend Certain Other Acts in Relation Thereto or in Consequence Thereof was codified into law, it moved away from the term “rape” and embraced the more wide-ranging concept of “sexual assault.” This new crime recognized that the victims of rape were often viewed with suspicion. Sexual assault was added to the section addressing assault which allowed for various degrees of violence/victimization and broadened who could petition for charges. The 1983 Criminal Code updates allowed for males to bring charges of sexual assault, as well as married women. While this was an important moment in feminist fights for sexual assault awareness, it was not until 1992 that a definition of informed consent was added to law. Canadian law finally recognized that no words or actions needed to be taken by the victim to imply they were not consenting. If the perpetrator did not receive consent (verbal or otherwise) then they could be charged with sexual assault. 

Even with all of the work that feminists and lawmakers put into changing sexual assault legislation in Canada, victims of sexual assault are still waiting for true changes in public opinion. In 2017, the #MeToo movement gained momentum with women sharing their experiences of sexual assault and harassment. 

Even with a large number of victims sharing their stories, including public figures, women still faced backlash. While the definition of consent was updated in 2018, perhaps as a direct result of the #MeToo movement, the sobering fact is that many will not report having experienced a sexual assault to the authorities for fear of negative reactions such as disbelief and retributions from others. 

While legislation has made steps in the right direction, enshrining victims’ rights to press charges, outlining what constitutes consent and what does not, and accepting that victims are credible witnesses, stigmas associated with reporting remain. In 2008, Jennifer Tomkin and Barbara Krahé outlined these myths or misconceptions in their book Sexual Assault and the Justice Gap: A Question of Attitude. They explained that there is a stereotype of the “real rape” where a stranger rapes an unsuspecting woman who fights back and does everything she can to prevent it. In fact, statistics show that the perpetrator is more likely to be someone the victims knows such as a friend or family member. This misconception of how sexual assaults occur and who perpetrates them abounds in public opinion and affects whether a sexual assault is reported or not. 

It is time that Canadians acknowledge and understand that sexual assaults can happen to anyone, anywhere, any time. While the law has made strides in the past century to change the experience of victims who report, public opinion and knowledge still requires more work. 

Resources:

An Act to Amend the Criminal Code in Relation to Sexual Offences and Other Offences Against 

the Person and to Amend Certain Other Acts in Relation Thereto or in Consequence Thereof, S.C. 1980-81-82-83, c. 125, s. 246.1, 246.2, 246.3.

Backhouse, Constance. "Sexual Assault Legislation." Constance Backhouse. 

Accessed November 19. https://www.constancebackhouse.ca/.

Backhouse, Constance. 2008. Carnal Crimes: Sexual Assault Law In Canada, 1900-1975. 

Toronto: Irwin Law.

The Criminal Code, 1892, S.C. 1892, c. 29.

Criminal Code, S.C. 1953-54, c. 51.

Criminal Code, R.S.C. 1985, c. C-46.

Prochuk, Alana, and Kasari Govender. “The Problem with #MeToo? The Backlash; The Movement Isn't About Abandoning Justice. It is About Saying: Pay Attention.” The Globe and Mail, Nov. 5, 2018.

Tempkin, Jennifer, and Barbara Krahé. 2008. Sexual Assault and the Justice Gap: A Question of 

Attitude. Oregon: Hart Publishing.