Time to drop the distinct crime of sexual assault
TheStar.com – Opinion/Commentary – The criminal courts of 30 years ago may well have needed a separate title for sexual assaults, but the designation now does more harm than good
Mar 29 2016. By: Reid Rusonik
One of my mentors as a criminal defence lawyer, Jack Pinkofsky, used to tell me we’re too immature as a society to have a distinct crime of sexual assault, but I didn’t fully understand him until recently.
In a story previewing the Jian Ghomeshi trial, a writer summed up all of the arguments that our criminal courts allegedly discourage the reporting of sexual assaults: “Thirty years after significant changes were made to the Canadian Criminal Code to remove the stigma and stereotypes surrounding sexualized violence … women coming forward with sexual assault allegations are worse off than ever.”
While it is obviously tempting to criminal court outsiders to blame the courts for the under-reporting of sexual assaults, perhaps the problem has more to do with the charge itself and the fact that the stigma and stereotypes surrounding it — and sex — haven’t changed enough outside of courthouse walls.
Our true sexual selves, one of the most important parts of our biographical cores, are often dramatically at odds with our day-to-day personas. That’s the thing about personas; they’re not entirely us. We create them to function in society where we compromise our individualities in the interest of functioning as a group to accomplish things together we could never accomplish alone.
Sometimes our societies get carried away with the compromises they demand, however. Sometimes they try to dictate not only our thoughts and actions in society but in privacy as well.
It was in such a way, for example, that the Victorian attitude toward our sexuality as being dirty and shameful, particularly when exhibited by women, affected us so deeply. It is an attitude that has had enormous staying power, constantly thwarting a lasting acceptance of the varied and complicated nature of human sexuality and making people feel truly rotten to their cores.
The very use of the word “sex” is often associated, consciously or subconsciously, with something dirty and shameful.
A lawyer who represents sexual assault complainants has pointed out that when complainants come forward they’re “subject to publication bans … which telegraphs the message that being a victim of sexualized violence is shameful.”
So why highlight the sexual component?
I fear it’s humiliating and degrading to make a sexual assault complaint precisely because you’re a sexual assault complainant, in ways that would never occur to someone to be embarrassed or feel less about themselves if they were simply an assault complainant.
It is the shame and social disapproval attached to the sexual part of a “sexual” assault that might pressure a victim to tell a needless lie on the stand, a lie that has nothing to do with whether or not an assault was committed. A witness’s credibility can nevertheless be hopelessly compromised in this way and a conviction for an assault that actually took place becomes unsafe.
I believe it is time to abandon the separate heading of sexual assault. The morally repugnant act is assault, not sex. It is intolerable for one human being to use physical force against another for any purpose. All separate headings for assault cheapen this fact. While a sexual component seriously aggravates an assault, that’s a matter for higher sentencing, not a prerequisite for a finding of guilt.
The criminal courts of 30 years ago may well have needed a title for a particular genre of assault to make them understand it as an assault, but 30 years ago there were precious few female judges or Crowns. The judicial selection process was riddled with old-boy cronyism. Although there may be a few judicial dinosaurs still stumbling around, the belief that certain parts of the body and certain settings cannot be part of a true assault is essentially extinct in Canadian courtrooms. Furthermore, 30 years ago the police actually had the discretion — and used it — not to charge if the assault “only” involved parts of a woman’s sexual anatomy.
If you doubt the need to reconsider the notion of a separate sexual assault offence, consider the Ghomeshi trial itself. No one is coming out of that prosecution without having been stigmatized, humiliated, and made fodder for salacious gossip.
But what if the charges had simply been assaults? And take away the exceptional feature of Ghomeshi’s notoriety. What if it was a case of one human being simply being charged with slapping other human beings without their consent? Who would be as embarrassed to come forward and complain about something like that? Who would watch and snicker about an assault trial like the malicious voyeurs who watch and snicker about sexual assault trials?
Reid Rusonik is a Toronto criminal defence lawyer and managing partner of Rusonik, O’Connor, Robbins, Ross, Gorham & Angelini, LLP.
< http://www.thestar.com/opinion/commentary/2016/03/29/time-to-drop-the-distinct-crime-of-sexual-assault.html >
Tags: crime prevention, featured, ideology, mental Health, rights, women
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