The Impact of Law Reform on the Processing of Sexual Assault Cases

Article excerpt

In her analysis of the history of rape laws, Christine Boyle (1984) has shown how these laws reflected a significant conflict in values. Society strongly condemned sexual attacks upon women, particularly those perceived as chaste and virtuous, and the laws provided harsh penalties for offenders. At the same time, legislators (virtually all of whom were male) seemed to fear innocent men being convicted and provided the accused with extraordinary protection against false charges of rape that many felt women were likely to make (Boyle, 1984).

Critics had identified many problems with the law (Clark and Lewis, 1977; DeKeseredy and Hinch, 1991; Hinch, 1996; Los, 1994), among them the criminal justice system's seeming greater concern for the complainant's credibility than for the innocence or guilt of the accused, which allowed degrading and stressful examination of a victim's previous sexual history. The law applied procedural and evidentiary standards to sexual offences such as corroboration and recent complaint, which were not applied to other offences. Rape was defined as a crime that could not apply to a spouse.

These critics felt the law reinforced stereotypes of rape that have long hampered efforts to prosecute and convict rapists. These stereotypes include myths such as: a woman cannot be raped unless she wants to be; evidence of injury is necessary to prove that a woman really resisted her attacker; women who "lead men on" are themselves responsible for the outcome; women who engage in risky behaviour such as hitchhiking or drinking alone in bars deserve to be raped; and, a woman who has had prior sexual relations with a man or with his friends has implicitly consented to further intercourse even if she says no.

Bill C-127: Legislative Reform

In response to these problems, the Parliament of Canada proclaimed Bill C-127 on January 4, 1983.(1) Included in this new legislation were significant changes such as:

* the reclassification of the crime of "rape" to three levels of sexual assault based on aggravating factors;

* disqualification of evidence concerning the complainant's background that is not pertinent to the case (rape shield law);

* removal of spousal immunity;

* making sexual assault gender-neutral; and

* changing the rules of evidence concerning consent, corroboration and recent complaint.

This change in legislation was intended to redefine sexual assault as a crime of violence rather than as a sexual act, and to reduce the harassment and degradation of victims by the justice system. Proponents hoped the new legislation would encourage more victims to report sexual assaults, ensure that victims were treated more fairly, and increase the conviction rate for sexual assaults, thereby enhancing the deterrent effect of the law.

Research on the Impact of Rape Law Reform

Several researchers have evaluated the impact of C-127. Using national police statistics, Renner and Sahjpaul (1986) compared the treatment of sexual assaults from 1973 to 1982 with post-legislation, 1983 data. The number of reported sexual assaults increased significantly in 1983, while the number of most other types of crime declined. There was no change in the percentage of cases reported as "founded," and small statistically significant increases in the percentage cleared and percentage charged. Roberts (1990) looked at national rates of reported sexual assaults before and after the legislation. He found that the number of complaints of sexual assault remained relatively stable in the six years prior to the implementation of Bill C-127, but that it increased by 127% in the six years after implementation. There was also a relative decrease in the severity of offences, which suggests that there has been a move away from the former emphasis on penetration (Department of Justice, 1990). However, there was no increase in either the proportion of cases classified as founded (Roberts, 1990) or in conviction rates (Department of Justice, 1990). …