Lacking Context, Lacking Change: A Close Look at Five Recent Lower Court Sexual Assault Decisions

AuthorJessica Derynck
PositionGraduates from UVic Law in 2009 and will be articling at Sack Goldblatt Mitchell LLP in Toronto
By Jessica Derynck*
CITED: (2009) 14 Appeal 108-126
It has been routine for me since starting law school to ask myself what I
am doing, why I am here. Now I ask what I have gotten myself into with
this paper. Not that my chosen topic doesn’t fascinate me—it does. I have
more than enough to say about rape, could talk about it for hours if only
it were a more acceptable topic of conversation. e problem lies with at-
tempting to reconcile frameworks of sexual assault law with lived experi-
ences of rape—mine and others whom I know. It seems impossible. Why
didn’t I choose to write about something extremely boring in a very re-
moved way? Better yet, I should have stayed far away from law school.
Perhaps I should have studied molecular biology. ere I could hide from
the lawyers, law professors, fellow students, and friends who, when I tell
them that the law continues to fail women who experience sexual vio-
lence, sincerely reply that things have changed and they are now better.
Words catch in my throat and I am unable to express to them, convince
them, that they are missing something. My experiences and the experi-
ences of many others do not tell me that anything is eectively changing.
In “e Discursive Disappearance of Sexualized Violence,” Lise Gotell writes about how
current legal treatment of sexual violence involves its “re-privatization” and depoliticiza-
tion.In examining  sexual assault cases decided from  to , Gotell nds that the
gendered nature of sexual assault is rarely acknowledged and there is resistance to the fem-
1 The style of this paper was inspired by Rebecca Johnson, “Blurred Boundaries: A Double-Voiced Dialogue on
Regulatory Regimes and Embodied Space” (2005) 9 Law Text Culture 157.
2 Lise Gotell, “The Discursive Disappearance of Sexualized Violence” in Dorothy E. Chunn, Susan B. Boyd & Hes-
ter Lessard, eds., Reaction and Resistance: Feminism, Law and Social Change (Vancouver: UBC Press, 2007)
127 at 127-28.
* Jessica Derynck graduates from UVic Law in 2009 and will be articling at Sack Goldblatt Mitchell LLP in
Toronto. She wrote this paper as a second-year student. Jessica profusely thanks Professor Hester Lessard for
her guidance and helpful comments, Professor Rebecca Johnson whose work inspired the style of this paper,
and Appeal and an anonymous reviewer for their comments and editing.
inist discourses that fueled the s sexual assault law reforms.In this paper I look at
Gotell’s research, paying particular attention to her ndings on cases that have “consent”
as an issue and apply R. v. Ewanchuk (“Ewanchuk”).I then assess ve more recent cases that
follow Ewanch uk and are focused on the issue of consent.
Sexual violence has been virtually dismissed as an equality issue in Canada. is has hap-
pened partially because of an assumption that the  feminist-inspired amendments to
the Cr iminal Code which elaborate on the meaning of consent,combined with the
Ewanchu k case several years later, have positively aected how criminal law responds to
sexual assault. At the same time, recent cases demonstrate the need to contextualize sex-
ual violence as a gendered issue aected by intersecting factors such as race. Judgments in
these cases focus on behaviour and characteristics of complainants in their reasoning.
Gotell writes about the evolution of an “ideal victim” dened by reason, self-discipline, and
an experience of rape that ts with judicial narratives.Our neo-liberal political climate
involves less and less support for social programs, and encouragement of the idea that peo-
ple are responsible for their own situations. is has led to the “responsibilization” of
women when it comes to sexual assault, and the “ideal victim” is one who demonstrates ra-
tionality and minimizes risk to avoid sexual violence.
I come to this paper from the point of view of someone who is relatively new to the expe-
rience of reading judgments and attempting to understand the law, but has long been as-
sessing the eects of sexual assault on women’s daily lives, before and since experiencing it
myself. I have always, on some level, understood sexual assault as an equality issue. I have
realized it aects the way I live in the world since I was six years old and read about police
using women as bait to catch a rapist.Interest in contemporary legal treatment of the issue
led me to look at ve cases from  for examples of how our criminal law system is cur-
rently dealing with sexualized violence. I found that the credibility of women is attacked in
the process of negating the requirement of lack of consent for the actus reus of sexual assault.
I found that the requirement of an accused person to have taken reasonable steps in ensur-
ing consent is downplayed by judges, making it relatively easy for the accused to raise an “air
3 Ibid. at 127, 153.
4 R. v. Ewanchuk, [1999] 1 S.C.R. 330, 169 D.L.R. (4th) 193, 1999 CarswellAlta 100 (WLeC) [Ewanchuk, cited to
WLeC]. In this case the Supreme Court of Canada elaborated on the meaning of consent as it is defined in the
1992 amendments to the Criminal Code.
5 Criminal Code, R.S.C. 1985, c. C-46 at ss. 273.1-273.2.
6 Gotell, supra note 2 at 144, 150-51.
7 Ibid. at 128, 144, 151. Gotell further discusses neo-liberalism, responsibilization, and sexual assault in two arti-
cles: Lise Gotell, “Rethinking Affirmative Consent in Canadian Sexual Assault Law: Neoliberal Sexual Subjects
and Risky Women” (2008) 41 Akron L. Rev. 865; Lise Gotell, “When Privacy is Not Enough: Sexual Assault
Complainants, Sexual History Evidence and the Disclosure of Personal Records” (2005-2006) 43 Alta. L. Rev.
743. Responsibilization is described as a discourse that arises out of neoliberal practices and pushes people to
become ‘enterprising selves’, shifting responsibility for social problems onto individuals. See Nikolas Rose, In-
venting Our Selves: Psychology, Power, and Personhood (Cambridge: Cambridge University Press, 1998); and
Thomas Lemke, “‘The birth of bio-politics’: Michel Foucault’s lecture at the Collège de France on neo-liberal
governmentality” (2001) 30 Economy and Society 190, both cited in Katherine Teghtsoonian, “Managing
Workplace Depression: Contesting the Contours of Emerging Policy in the Workplace” in Pamela Moss &
Katherine Teghtsoonian, eds., Contesting Illness: Processes and Practices (Toronto: University of Toronto Press,
2008) 69 at 71-72.
8 Jane Doe successfully sued the Metro Toronto Police for negligence and gender discrimination, on the basis of
their investigation into her attack by a serial rapist in 1986. Part of her argument was that the police used
women as bait to catch the rapist instead of warning them, and this issue was publicized in newspapers at the
time. She writes about her case in Jane Doe, The Story of Jane Doe (Toronto: Vintage Canada, 2004) [Doe].
Her case is cited as Jane Doe v. Metropolitan Toronto (Municipality) Commissioners of Police, 160 D.L.R. (4th)
697, 39 O.R. (3d) 487, 1998 CarswellOnt 3144 (Ct. J. Gen. Div.) (WLeC) [Jane Doe].

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