In 1991, the Supreme Court of Canada in R. v. McCraw reviewed the threat of a criminally accused to inflict bodily harm, and discussed how rape is an act of violence, and not just a sexual act,
It is difficult if not impossible to distinguish the sexual component of the act of rape from the context of violence in which it occurs. Rape throughout the ages has been synonymous with an act of forcibly imposing the will of the more powerful assailant upon the weaker victim. Necessarily implied in the act of rape is the imposition of the assailant’s will on the victim through the use of force. Whether the victim is so overcome by fear that she submits or whether she struggles violently is of no consequence in determining whether the rape has actually been committed. In both situations the victim has been forced to undergo the ultimate violation of personal privacy by unwanted sexual intercourse. The assailant has imposed his will on the victim by means of actual violence or the threat of violence.
Violence and the threat of serious bodily harm are indeed the hallmarks of rape. While the bruises and physical results of the violent act will often disappear over time, the devastating psychological effects may last a lifetime. It seems to me that grave psychological harm could certainly result from an act of rape.
Canada is reeling right now with the conclusions of The Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls (MMIWG) of a collective act of rape and violence towards a distinct population, which they characterize as a genocide. The term has raised enormous controversy, as it appears to go beyond the conclusion of the Truth and Reconciliation report of a “cultural genocide.”
The MMIWG Report acknowledges disagreements about the precise nature of the term genocide, but points to definitions that illustrate that it need not be accomplished by immediate destruction of a nation. The objectives could include an attack on the political and social institutions of a group, including their culture, language, religion, economic existence, health and dignity. In this context, they point to a new understanding of how genocide can occur, and describe a colonial genocide, one which has “Indigenous women, girls, and 2SLGBTQQIA people … being targeted from all sides, from partners and family members, acquaintances, and serial killers.”
The Report was released immediately after the Court’s decision in R. v. Barton, dealing with a criminally accused charged with first degree murder of an Indigenous woman found dead in his bathroom. She was a sex worker and the cause of death was the loss of blood.
The decision centered around Section 276 of the Criminal Code dealing with the admissibility of evidence of the complainant’s prior sexual activities. The majority held that the trial judge failed in complying with these mandatory requirements, which affected the accused’s defence of honest but mistaken belief in communicated consent. Although they ordered a new trial, they indicated it should be a restricted on manslaughter alone, as the acquittal on the murder charge was not tainted by reversible error,
 First, the Crown’s case on first degree murder hinged on a relatively straightforward factual question: Did Mr. Barton cut Ms. Gladue using a sharp...