The sexual assault of older women: criminal justice responses in Canada.

Author:Grant, Isabel
 
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This article examines sexual violence against older women, a problem that has been largely hidden from view in the societal and legal discussion of sexual assault. The article identifies a significant disconnect between the social science description of sexual assault against older women, on the one hand, and the available case law, on the other. The social science literature suggests that older women are most likely to be sexually assaulted by somebody they know and that a disproportionate number of the sexual assaults against older women take place within care facilities. The case law, however, paints a very different picture of sexual violence against older women--a majority of the reported cases involve women attacked in their homes by strangers in the context of a robbery or home invasion. We argue that this portrayal of sexual violence against older women in the case law resembles that of the case law of sexual assault against younger women thirty years ago, before the women's movement brought acquaintance and spousal sexual assault into the public eye. We conclude that these types of sexual assaults continue to be under-reported for older women, and we explore some of the reasons for the failure of the criminal justice system to respond to this group of complainants.

Cet article examine la violence sexuelle commise envers les femmes agees, un probleme qui a largement ete ecarte des discussions juridiques et societales concernant les agressions sexuelles. L'article determine qu'il existe une divergence considerable entre, d'une part, le portrait dresse par les sciences sociales de l'agression sexuelle envers les femmes agees, et, d'autre part, la realite decrite par la jurisprudence disponible. Une revue de la litterature en sciences sociales suggere que les femmes agees sont plus a risque d'etre victimes d'agression sexuelle par une personne qu'elles connaissent et qu'il y a un nombre disproportionnellement eleve degressions sexuelles dans des centres de soins. La jurisprudence decrit pourtant une situation tres differente de la violence sexuelle envers les femmes agees, puisqu'une majorite des cas reportes impliquent des femmes attaquees dans leur demeure par des etrangers dans le cadre d'un vol ou d'une entree par infraction. Nous avancons que l'image depeinte par la jurisprudence actuelle est similaire a celle des agressions sexuelles envers les femmes plus jeunes il y a trente ans, avant que le mouvement feministe ne sensibilise le public a l'existence des agressions sexuelles commises par des conjoints ou des connaissances. Nous concluons que ces formes degressions sexuelles sont largement sous-rapportees chez les femmes agees et nous explorons certames des raisons expliquant l'echec du systeme de justice criminelle a repondre a ce groupe de plaignantes.

Introduction I. Theoretical Perspective A. Who Is "Old"? Concepts and Language B. Locating Older Women in Feminist Literature C. Older Women and "Rape Culture" II. The Empirical Reality of Sexual Violence against Older Women A. Scope of the Problem B. Criminal Justice Responses III. The Case Law Disconnect A. Women Living in the Community B. Women in Acute Care Hospital Settings C. Women Living in Supported Settings 1. Women Living in Seniors' Apartments or other Supported Housing 2. Women Living in Long-Term Residential Care Conclusions Introduction

Despite the efforts by feminists over the last four decades, the "typical" rape victim is still positioned as a young attractive female who is attacked by a stranger, motivated by sexual desire. This is compounded by the lack of feminist attention towards, and inclusion of, older women in research, campaigns and policies. (1)

This article considers, for the first time in Canadian legal scholarship, the criminal law's treatment of the sexual assault of older women. (2) This work is influenced by, and builds on, our earlier scholarship regarding sexual assault against women with mental disabilities. In particular, our published research has examined: challenges in applying the legal doctrine of affirmative consent to women with mental disabilities; (3) problems with an "all or nothing" approach to incapacity to consent; (4) barriers created by particular evidentiary and procedural rules in the criminal trial process; (5) problems with the existing practice of cross-examination when applied to complainants with mental disabilities; (6) issues around competence to testify; (7) and the role of abuses of trust, power, and authority in determining non-consent. (8)

We wondered whether the insights we developed in this work would be useful for considering the legal response to the sexual assault of older women, who confront unique challenges in having sexual violence against them recognized through the criminal justice system. (9) Mental disability and age are, of course, overlapping categories. Some older women have dementia or other age-related conditions, while younger women with mental disabilities age and become older women. More generally, legal scholarship and the broader public discourse on sexual violence are almost silent about both of these groups of women, as if sex and sexual violence were not a part of their lives.

Of course, "older women" are not a homogenous group. Many older women do not experience any cognitive disability and yet may still be vulnerable to sexual violence as they face social marginalization for reasons related to disability, poverty, social isolation, and ageism, as well as sex inequality. (10) We thus sought to examine whether and how the criminal justice system is responding to such sexual violence and to identify the barriers to the effective prosecution of these cases. We also suspected that many of these cases might be entirely outside the sight of the criminal law and instead managed through other means. This article thus grapples with the difficult problem of how to identify and understand what is not there in terms of judicial decisions. (11)

We expected that many of the legal issues we had addressed in the context of women with mental disabilities--such as capacity to consent and competence to testify--would have particular relevance to the population of older women. Yet, our findings paint a somewhat different picture. By the time a very small sample of cases makes its way to court, older women do not typically face the legal and evidentiary barriers confronted by younger women, whether disabled or not. The greatest challenge appears to be in detecting and reporting the sexual violence against older women. It is difficult to determine how much this challenge can be attributed to women not disclosing the sexual violence to anyone (or not reporting it to the police) or whether women are reporting incidents of sexual violence to the police and the cases are not going forward. Since barriers to reporting are so high for this group of women, however, we suspect that non-reporting plays at least a significant explanatory role.

In this article, we seek to explore in the Canadian context what has been described as "one of the final taboos of modern life" (12)--sexual violence against older women--with a view to stimulating further legal research in this area. We argue that older women face greater barriers to reporting sexual assault than any other age group of women. We demonstrate that certain types of sexual assault against older women are virtually invisible in the case law. If one uses the case law as a guide to what is actually happening, one would assume that sexual assault against older women is overwhelmingly committed by strangers who break into a woman's house late at night and sexually assault her, while committing serious acts of physical violence. (13)

Familial sexual assault, particularly spousal sexual assault, is virtually invisible in our case sample. In some respects, this picture of sexual assault resembles what one might have seen for younger women thirty years ago, before the women's movement pushed for the recognition of sexual violence in intimate relationships. (14) In this article, we present our findings and begin to untangle the complex reasons for the limited representation of sexual assault against older women in the case law.

The article begins by outlining our theoretical perspective and conducting a review of the social science literature on sexual violence against older women, much of which is taken from the American and British contexts. We then present our findings from an extensive case law review and contrast these findings with what has been presented in the social science literature. Finally, we move on to explore potential reasons for the disconnect between the depiction of sexual assault against older women in the case law and that in the social science literature, and urge feminists and other scholars to bring this group of women back into focus in scholarship and advocacy surrounding sexual assault.

Our focus on older women does not mean to imply that older men are never subjected to sexual violence. (15) We focus on women for two reasons. First, our analysis is informed by the belief that sexual violence is profoundly gendered at all stages of the life cycle. (16) Second, the social science studies consistently support this position, revealing that the proportion of older victims of sexual violence (as opposed to physical violence) who are women is extremely high. For example, studies suggest that between 93% and 95% of older victims of sexual assault are women, and over 90% of perpetrators are men. (17) These figures are similar to the demographics of sexual assault in the larger population. (18) While one study of elder sexual abuse found that the percentage of female victims was only two-thirds of the sample, (19) this study appears to be an outlier. Thus we seek to explore how sex, old age, disability, race, and class intersect in the context of sexual violence.

  1. Theoretical Perspective

    1. Who Is "Old"? Concepts and Language

      Any study...

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