In the Blog

How Canadian Law Renders Rape Invisible

February 22nd, 2016     by Fiona Raye Clarke     Comments

Illustration by Erin McPhee


These are extremely triggering times for survivors. Between the constant media coverage of the now-concluded Jian Ghomeshi trial which saw complainants ‘blamed and shamed’ during cross-examination on the witness stand, and recent antics of “pick up artist” Roosh V, calling (even if “satirically”) for the legalization of rape on private property, and meetups of his neomasculinist group The Return of the Kings, it is hard to avoid discussions of rape and sexual violence these days. However these events raise significant issues around rape culture in Canada and despite their triggering nature, Canadian women cannot afford to remain silent.

In Canada, there is no crime called ‘rape’ and hasn’t been since 1983. Instead, rape has been rolled into the crime of sexual assault of which there are three levels in the Criminal Code. The first level are sexual assaults without injury or with minor injuries; the second are those including the use of a weapon, threats or causing bodily harm; the third are those that wound, maim, disfigure, or endanger the life of the complainant.

Reasons given for the removal of ‘rape’ from the Code include: emphasizing that rape is not about sex but about violence, to make the word more gender-neutral, removing the religious and social stigma of rape and, most importantly, encouraging more reporting of the offence.

However, despite these laudable reasons for removing ‘rape’ from the Criminal Code, there has been no increase in reporting. In fact, the number of sexual assaults reported to police in 2014 decreased from 21,300 to 20,700. A survey of victimization data suggests that the majority of sexual assaults (88%) experienced by Canadians 15 years and older were not reported to the police.

Self-reported data gathered in 2009 found that there were 472,000 sexual assaults against women and 204,000 against men committed in the previous year, with only 20,931 being reported to police and 7,951 individuals charged.

Even if a sexual assault is reported it has to be determined “founded” by the police. This means that during the initial investigation of a sexual assault complaint, if the police conclude that no crime has occurred, they classify it as “unfounded” instead of making an official record of the crime. Not surprisingly, there is a higher rate of “unfounding” for sexual assaults than for other crimes, even though it’s been determined that false accusations of sexual assault account for only 2% to 8% of all sexual assault accusations. This has resulted in fewer charges being laid for sexual assaults tend than for other violent offences.

In a survey of seven Ontario police forces the rate of “unfounding” was between 2% and 34%. Reasons for “unfounding” according to studies were that the reported situation did not conform to stereotypical rape myths. These myths include that rape is committed primarily by strangers, is always physically violent and so requires that the survivor physically resists, and only happens to so-called “virtuous women.” Therefore, when there is a pre-existing relationship between the complainant and the accused, when the complainant has a mental health issue or disability, when there are no physical injuries from the sexual assault, or the complainant is under the influence of drugs or alcohol, in many cases police, influenced by these myths, find the report “unfounded”.

Unfortunately, according to Statistics Canada, 75% of the perpetrators of sexual assault were known to the survivor, with only 25% being perpetrated by strangers. Moreover, women with disabilities are statistically one of the most vulnerable groups to sexual assault - 40% have been sexually assaulted and 83% are likely to be sexually assaulted in their life time. Thus, even in the absence of ‘rape’ from the Criminal Code, rape myths are still being acted upon by the system.

Despite the argument that removal of ‘rape’ from the Criminal Code would encourage survivors to report, rates of reporting have not increased. Reasons for not reporting provided by survivors are that 50% felt as though the matter was not important enough and or was a personal one; 33% felt that the police could not do anything about it; and 18% felt that the police would not help them. Moreover, given the high “unfounding” rates, stigma is still alive and well, and the absence of ‘rape’ could signal to survivors that their experience of sexual violence is not serious.

Canada’s legislative elision of ‘rape’ renders the crime and its survivors invisible. A Criminal Code without ‘rape’ does not accurately represent the violence that happens to our lives and to our bodies, and does not act as a sufficient deterrent. Therefore, discussions of rape culture in Canada should begin with the absence of ‘rape’ from our criminal law.

While one could argue that the law is not the ultimate determinant of right or wrong, it inevitably reflects society’s values; and in the case of rape it does not correctly name this violence to women’s and survivor’s bodies. If the law is ever to be an accessible and relevant force in our everyday lives it should regularly examine itself and its ability to purportedly identify, name, regulate and control crime.

There have been few calls for the return of ‘rape’ to the law. In 2010, it was suggested by Public Safety Minister Vic Toews that rape should be returned to the Criminal Code, in consideration of issuing pardons to sexual offenders. While I disagree with his reasoning, the suggestion was quickly shut down by government, the positive gains of the sexual assault legislation being cited as the reason.

However, I question the weight of those gains as sexual assault is still grossly underreported, under charged, and under convicted. And when women do have the courage to come out publicly with their stories they are smeared in both the courtroom and, in the case of Ghomeshi and many others, publicly in the media.

Therefore, until Canadian law stops being silent on ‘rape’, it is an act of resistance to talk about R-A-P-E. It is an act of resistance to say you are a rape survivor. It is an act of resistance to discuss and dissect rape culture. Kudos to those of us out there that do.

Tags: body politics