Justice L'Heureux-Dube and Canadian Sexual Assault Law: Resisting the Privatization of Rape

• Author: Elizabeth Sheeny and Christine Boyle
• Pages: 247-283

Fourteen

Justice

L'Heureux-Dube

and

Canadian Sexual

Assault Law: Resisting

the

Privatization

of

Rape

ELIZABETH SHEEHY

AND

CHRISTINE

BOYLE*

Introduction

Justice

Claire

L'Heureux-Dube's

sexual assault judgments make

a

remarkable

contribution

to the

reform

of

Canadian rape law.

Her

analyses, even when

written

in

dissent, have

ultimately

reshaped

the

common

law and

instigated

new

legislation. L'Heureux-Dube J.'s judgments sustain

the

feminist

project

of

realizing

women's equality

by

resisting

the

privatization

of

sexual assault

through

her

linguistic choices, legal methodology,

fact

determinations,

and

doctrinal

shifts.

Sexual

assault

is

privatized when

it is

governed

by

legal

doctrines that

de-

criminalize predatory

and

injurious male sexual

behaviour,1

treat

the

crime

as

an

individual

and

gender-neutral deviation that carries

no

social consequences

for

the

structuring

of our

society,

and

impose unconscionable burdens upon

women

who

report male sexual violence

to the

criminal justice system.

In

con-

trast, Justice L'Heureux-Dube's judgments recognize

that,

while sexual assault

is

perpetrated

by

individual men,

it is

carried

out by men as a

group, against

women

as a

group, with

our

permission

as a

society, signalled

in

part through

legal rules

that

define

the

range

of

behaviours labelled

as

criminal.

Her

deci-

sions

frame

women

who

report rape

as

citizens assuming

a

grave

and

onerous

public responsibility

as

witnesses

to

violent crime,

and not as

vindictive

females

with

an axe to

grind.

Her

opinions recognize

the

gross under-report-

247

248

ADDING FEMINISM

TO LAW

ing of

rape

and its

implications

for the

full

public participation

of

women.

The

legal regime proposed through L'Heureux-Dube J.'s judgments

treats women

who

report

sexual assault

as

members

of

society whose

health,

well-being,

and

survival have been compromised

by a

brutalizing experience.

She

endorses legal definitions

and

rules

of

culpability

for

sexual assault

that

do not

force

women

to

abandon

the

public sphere

or

active social

and

sexual

lives

and to

assume

responsibility

for

their

own

safety

as

against

predatory

men. Furthermore,

Justice

L'Heureux-Dube's

legal understanding

of

sexual

assault would

not

leave individual women

to

bear alone

the

social

and

eco-

nomic costs

of

their

rapes,2

unassisted even

by the

knowledge that

the

crime

against

them

was

condemned.

L'Heureux-Dube

J.'s dissent

in JR. v.

Seaboyer1

perhaps best illustrates

how her

decisions provide

a

blueprint

for

resisting

the

privatization

of

sexu-

al

assault.

The

scope

of the

mistake

of

fact

defence

was at

issue

in

that case,

and in

particular,

the use of a

woman's sexual history

to

give

an

"air

of

reali-

ty" to an

accused's alleged mistaken belief

in

consent.

The

defence

challenged

the

Criminal Codes strict rules around

the use of

women's past sexual histo-

ry as

evidence

on the

basis

of s. 7 of the

Charter. First, L'Heureux-Dube J.'s

judgment recognized that language matters.

She

thus began

by

defining

her

linguistic

terrain

in a

manner respectful

of

women

and

attentive

to the

pub-

lic

nature

of the

wrong committed.

Her

dissent eschewed

the use of the

term

"prosecutrix"

because sexual assault

is no

longer

a

private

matter

but is

rather

a

crime against

the

public order that

is

prosecuted

by the

Crown. L'Heureux-

Dube

J.

also rejected

the

term "alleged victim" because

it is

over-inclusive

and

presumes that

the

woman

has

nothing

to

complain

of. She

settled

for the

term

"complainant"

because

it was the

least

infirm

term available,

but

acknowl-

edged

that

it is

also

a

harsh term.

Justice

L'Heureux-Dube recognized that

a

woman

who has

been sexu-

ally

assaulted

but

whose assailant

has

been acquitted

by

virtue

of the

honest

mistake

defence

nonetheless

has

been injured.

She

refused

to

adopt

the

phrase

"rape shield law,"

a

short

form

often

used

to

describe legislation that limits

the

cross-examination

of

women

as to

their sexual histories,

on the

basis that

the

term

"rape

shield"

suggests

that

the

sole

or

primary purpose

of

such legisla-

tion

is to

protect women

from

the

rigours

of

cross-examination. Instead,

she

argued, several equally significant societal interests

are

served

by the

exclusion

of

such evidence, including truth-seeking

and

public confidence

in the

crim-

inal justice system.

FOURTEEN

*

RESISTING

THE

PRIVATIZATION

OF

RAPE

249

Second, L'Heureux-Dube J.'s methodology

in her

Seaboyer

dissent

is

characterized

by

attention

to the

rights

of the

collectivity, including

the

rights

of

women, children,

the

broader society,

and of men

accused

of the

crime.4

She

consistently relied upon equality rights

as an

implicit

if not

explicit inter-

pretive framework informing

the law of

sexual assault.

Her

approach

was

definitively

contextual:

her

analysis

of the

constitutional challenge

was

grounded

in the

legal

history

of the

provision

in

question,

the

social science

evidence situating sexual assault

as a

gendered crime that

is

rarely reported

and

whose legal treatment

has

been

rife

with discriminatory practices

and

doctrines,

and the

distorting

effects

that sexual history evidence

has

upon

the

trial

process

and a

principled search

for

truth. This judgment thus

reflects

a

move away

from

reliance upon abstract doctrine, unstated

and

untested

assumptions

and

beliefs,

and

"common sense" reasoning

in

support

of the

status

quo;

it

towards

a

broader public

law

approach that situates law's

response

to

sexual assault

as

significant

for

women's status

in

society

and

holds

law

accountable

for its

impact upon

the

social practice

of

rape.

We

do not

argue that

all of

L'Heureux-Dube J.'s sexual assault judg-

ments

can be

forced

into

a

public law,

equality-enhancing

paradigm;5

instead,

we

examine those opinions that contribute significantly

to

resisting

the

pri-

vatization

of

sexual assault. Such resistance depends

on

egalitarian

fact-find-

ing—the

determination

and

application

of the

relevant

facts6—and

legal doc-

trine,

both

informed

by

substantive equality.

In the

first

part

of

this chapter,

we

examine Justice

L'Heureux-Dube's

influence

on the

elements

of the

crime,

focusing

on the

concepts

of

mens

rea and

non-consent

in the

actus

reus.

In the

second part,

we

examine

how her

judgments rise

to the

challenges posed

by

the

constitutional requirement that sexual assault trials

be

conducted

in a

fair

and

egalitarian manner.

Defining

Sexual

Assault

Justice

Claire L'Heureux-Dube

was

appointed

to the

Supreme Court

in

1987,

and

although

her first

very visible sexual assault judgment

was her

dissenting

opinion

in R. v.

Seaboyer

in

1991,

the

dissent that

she

joined

in R. v.

Kirkness,7

written

by

Justice Wilson

in

1990,

and her own

dissent

in R. v.

Martineau8

that

same year, clearly show

the

origins

of her use of

equality

as an

interpretive

principle shaping

the

substantive elements

of

sexual assault

and the

mistake

of

fact

defence.