Sexual Assault in Canada: Law, Legal Practice and Women’s Activism ed. by Elizabeth Sheehy (review)

Sexual Assault in Canada: Law, Legal Practice and Women’s Activism offers an edited collection of papers originally presented at the 2009 conference Sexual Assault Law, Practice and Activism in a Post-Jane Doe Era.¹ The articles review current legal and societal responses to sexual assault in Canada and assess whether Jane Doe’s successful suit against the Toronto police force has had a positive effect.² The reviews are mixed, although the articles identify common themes: rape myths prevail, and institutional obstacles to effective legal and societal responses to sexual assault remain intact.

Several authors discuss how complainants still lack credibility and experience re-victimization in the trial process. In chapter 9, Teresa Dubois explores how police challenge a complainant’s credibility from the outset. Her statistical analyses demonstrate that sexual assaults comprise more than 90 percent of all unfounded crime reports. Rakhi Ruparelia (chap. 26) illustrates how references to race, socioeconomic status, unrelated criminality, or addiction further undermine women’s credibility during trial. Similarly, Fran Odette (chap. 8) shows how disabled women are seen as less-credible witnesses, likened to impressionable children who suffer from poor recall. Finally, according to Susan Erlich (chap. 17) and Sunny Mariner (chap. 18), defence counsel tactics and the incorporation of psychiatric experts serve to further undermine complainants’ credibility. Defence counsel, they write, work to differentiate “unwanted sex” from sexual assault, and psychiatric experts pathologize victims of sexual assault as having mental health problems.

In the wake of the 1983 Criminal Code amendments, a number of new legal twists present obstacles to successful prosecution. Elizabeth Sheehy (chap. 20) notes that courts continue to allow for a mistaken belief in consent defence, even in cases where a complainant was unconscious. This contradicts the Criminal Code requirement that the defence will not be available in cases where the accused fails to show that reasonable steps have been taken to obtain consent. Similarly, as Sanda Rodgers demonstrates in chapter 19, the corroboration requirement has survived in other contexts, such as disciplinary proceedings against doctors who sexually abuse their patients. In chapter 16, Jane Doe argues that the rape kit serves as corroborating evidence to support a woman’s claim.

Perhaps the most insidious problems identified in this collection of articles emanate from the current post-feminist ethos, which minimizes activism and erases gender from the debate. In chapter 11, Lise Gotell accuses current neoliberal discourse of characterizing victims as “individualized, degendered and deraced” (p. 251). Similarly, Sheila McIntyre (chap. 7) refers to the “raceless, classless innocent version” of sexual assault in the residential schools litigation (p. 68). This decontextualization of sexual violence through non-gendered language makes it impossible to identify and combat the myths that persist regarding women as victims of sexual assault.

It appears that the Jane Doe case stands as a high-water mark in the struggle against sexual violence, serving as a tenuous legal victory that is continually challenged. On the one hand, McIntyre describes in chapter 6 how tort actions against residential schools have largely failed, due to an excessively narrow judicial interpretation of vicarious liability that prevents them from being held liable for sexual assaults committed by school employees. On the other hand, several authors provide potential legal remedies. A. Blair Crew cites new tort action of negligent investigation by police for “wrongful unfounding.” Constance Backhouse recommends feminist remedies that rely on restitution and denunciation, rather than on the incarceration of sexual assault offenders.

In the end, the book maintains a hopeful message in spite of uncertain progress. This message is supported by Jane Doe’s own wit and creativity in approaching the subject. In her afterword, Jane Doe refers to the exhilarating and transformative power of the exchange of ideas, and this collection demonstrates a creative and ever-evolving search for diverse responses to sexual assault. The inclusion of Shary Boyles’s drawings and sculpture and a chapter on Jane Doe’s use of...