Sexual Assault

Until it was amended in 1982 the Criminal Code contained the offence of rape. The offence required proof that a man had sexual intercourse with a woman other than his wife without the woman's consent. It was punishable by up to life imprisonment. The offence of rape, perhaps more than any other offence, demonstrated the tensions arising in CRIMINAL LAW from conflicting principles: the presumption of innocence (and thus, the requirement that the Crown prove all of the elements of the offence beyond a reasonable doubt) and the need to protect potential victims and to punish offenders. The emotional and traumatic nature of the trial (which might include cross-examination of the complainant about her prior sexual conduct with the accused and others), aggravated by the feelings of shame and degradation suffered by a rape victim, may contribute to the fact that rape is an underreported crime. Sometimes the accused is a "friend" or relative, which leads to the imposition of even greater pressure upon the complainant.

Abolition of the Rape Offence

With the passing of Bill C-127, Parliament has abolished the offence of rape, replacing it with the offences of sexual assault. A major purpose of the change was to emphasize that the offence, although sexually related, was essentially a crime of violence, mostly against women. The legislation reflects this in establishing 3 categories of sexual assault: basic sexual assault (ie, sexual touching or sexual intercourse without consent) punishable by up to 10 years' imprisonment; sexual assault with a weapon or threatened violence, punishable by up to 14 years in prison; and aggravated sexual assault, in which the victim is wounded or disfigured, punishable by up to life imprisonment. The distinction between men and women in the idea that only men could commit rape was abolished, since sexual assault is a crime which either sex can commit; spousal immunity was ended (ie, sexual conduct between spouses must now be consensual); proof of vaginal penetration by the penis is no longer a requirement, and so failing to report the crime within a matter of hours (and certainly a day) is no longer fatal to the Crown's case because of insufficient evidence; and the doctrine of recent complaint was abolished so that failure to complain at the first reasonable opportunity no longer harms the complainant's credibility.

The Rape Shield and Access to Records

After these changes were enacted, 2 other major developments occurred. First, Parliament enacted the so-called "rape shield" law. The legislation restricted questions in court that may be made of the victim of a sexual assault as to the victim's past sexual conduct. However, subsequently, the law was struck down under the Canadian Charter of Rights and Freedoms. In so doing, however, the Supreme Court replaced the legislation by a series of judge-made or common-law rules that sought to achieve a similar objective as the rape-shield law. Secondly, the Supreme Court held in December 1995 that in sexual assault cases an accused was entitled, in certain circumstances, to obtain access to records kept by counsellors assisting victims in, for example, sexual assault crisis centres. Such records would be available if a judge felt they were necessary in the determination of an accused's criminal liability. In deciding this, a judge is required to take into consideration a number of factors relating to the victim's privacy. The federal government, in response to the decision, has indicated that new legislation will attempt to reduce an accused's accessibility to such records.