Impervious to Change? Sexual Assault Law Reform in Canada

Law reform over the last 30 years has not necessarily improved the dismally low conviction rate for sexual assault cases, University of Manitoba Law Prof. Karen Busby said at the opening of the Sexual and Reproductive Rights seminar series at Robson Hall on Sept. 11, 2019. Nor has substantial research been done until now on the impact of the reforms.

At best 0.3 per cent of perpetrators are convicted while the rest get away. However, Busby said she is optimistic following two recent Supreme Court of Canada decisions that pointed out flaws in prosecuting and judging sexual assault cases. In one case, the victim was stereotyped throughout the trial because she was Indigenous and a sex worker.

Changes were made to Canadian sexual assault laws in 1983, 1987, 1992, 1996 and 1998. The changes included ending discriminatory evidence rules, removing the penetration requirement for a sexual assault charge, more clarity regarding offences against children, expanding consent requirements, balancing the rights of victims and perpetrators, and the creation of a sexual exploitation offence appropriate for people with disabilities.

Busby highlighted that ‘‘consent must be contemporaneous, continuous and active and can be withdrawn at any time.” This Canadian threshold is much higher than in some U.S. states.

Busby discussed the results of a survey on 460,000 sexual assaults in Canada. An alarming 90 per cent were not reported to the police. The attrition rate was highest at this stage. With respect to the reported cases, 14 per were considered by police to be unfounded and in 60 per cent of the remainder, police did not lay charges. Where charges were filed, 50 per cent were dropped before trial. Meanwhile, sexual assault convictions are likely to be overturned on appeal.

“Is change in the air?” Busby asked. She expressed hope for reform in light of the recent Supreme Court decisions, the #MeToo movement and Winnipeg police co-operation with researchers to improve sexual assault investigation and prosecution.

Slides

Listen to podcasts from seminars in this series.

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