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What’s in a name?

The Ottawa Citizen by Constance Backhouse 19 May 2010

Last week, Public Safety Minister Vic Toews sent out a trial balloon with his off-the-cuff suggestion that Canadians should rethink the name we use to describe sexual aggression.

His quarrel was with the term “sexual assault.” He much preferred the historical word “rape.” His rationale: serious crimes of criminal sexual intercourse were being mixed up with trifling incidents of sexual touching, all misclassified under the same phrase, “sexual assault.”

Toews neglected to mention that “sexual assaults” are not all the same under the current law. The Criminal Code sorts them into three different tiers — each tier with rising penalties for specified circumstances of increasing seriousness. He was wrong to suggest that all sexual assaults are treated uniformly.

It is true that the authorities frequently lay charges of lower-tier sexual assault in serious cases. But this is a problem of enforcement, not of design. Toews’ government could instruct police and Crown attorneys to start laying more upper-tier charges when circumstances warrant. Backtracking to the word “rape” will do nothing to solve this, because even under the old system there were less-serious charges, too often used as fall-backs in serious cases.

The name change from “rape, indecent assault, and seduction” to “sexual assault” occurred in 1983. Lorenne Clark and Debra Lewis, two of the experts whose research led to the reform, had demonstrated that the old system wasn’t working. Most victims never reported. And those who did found their claims too often disbelieved by police, Crown attorneys, judges, and juries. The reclassification was designed to emphasize the violent aspects of the crime, to reduce the stigmatization of victims, to encourage more prosecutions, and to secure more convictions. It is not clear that the reform accomplished any of these goals.

But the old definitions didn’t work well, either, so that is neither here nor there. If Toews really wanted to help reduce sexual aggression, naming would be the least of his worries. Indeed, we are dithering here about terminology, making a mountain out of a molehill.

And that’s what’s criminal. Because sexual assault by any name remains one of Canada’s most frequently perpetrated crimes. And the criminal law — then and now — does almost nothing to stop it.

The real problem is that the overwhelming majority of victims still refuse to report sexual abuse, fearful that they will be disbelieved and blamed if they speak out. For centuries, the law unfairly stipulated that women and children who complained of sexual assault were untrustworthy as a group. It was 17th-century English jurist Sir Matthew Hale, a man who presided over witch-burning trials, who first coined the presumption of disbelief, claiming that it was easy for women to accuse men of rape, and hard for innocent men to defend themselves. From this arose a thicket of common law and legislative rules demanding corroboration beyond the victim’s testimony.

Hale was dead wrong, of course, about how easy it was for sexual assault victims to make a public complaint. Then, as now, the vast majority of victims never set toe in a police station or a courtroom, preferring to suffer in shame and perennial silence. And Hale was wrong, too, about how difficult it was for alleged rapists to defend themselves. Acquittal rates for crimes of sexual assault run dramatically higher than for other crimes.

There have never been any empirical studies that provide evidence for the conclusion that sexual assault victims were more likely to lie than other crime victims. The rules sprang from a legal system designed and operated by adult males, based on their unproven hunches and irrational fears of false accusations.

It took until 1975 for the unfair rules of corroboration to come off the books. It was one of the first targets for feminist activists who set out to level the playing field. But the cheers went up too soon. Research from the Department of Justice showed that Crown prosecutors remained reluctant to take cases to trial without corroborating evidence. And judges and jurors were reluctant to convict without corroboration.

Equally troubling, police officers remained highly skeptical of sexual assault complaints. Several years ago, the Justice Institute of British Columbia found astonishingly high numbers of complaints continue to be considered unfounded by police. That is, police decide no crime has taken place and refuse to lay charges. Sexual assault complaints are “unfounded” at a rate that is twice that for other violent crimes.

Research compiled by faculty member Blair Crew, at the University of Ottawa Legal Clinic, suggests that the Ottawa police force has set its own record in blatant disbelief. Between 2002 and 2007, Ottawa officers unfounded approximately one-third of the sexual assaults reported to them. The disparity in unfounding rates is stark. Sexual assault: 32.4 per cent. Assault: 3.4 per cent. Other crimes involving violence or threats of violence: 2.8 per cent. Property crimes: 2.4 per cent. Drug crimes: 0.16 per cent.

The Justice Institute tried to diagnose why sexual assault complaints were so frequently unfounded. Their answer? Police rely on erroneous stereotypes when deciding whether to believe women.

Sir Matthew Hale must be smiling from the grave. And he would surely find Vic Toews’ modern-day quibbles about naming equally amusing.

Constance Backhouse is a professor of law at the University of Ottawa, and author of Carnal Crimes: Sexual Assault Law in Canada, 1900-1975, published by Irwin Law.