The Evolution of Rape to Sexual Assault Legislation - Essay Example

The Evolution of Rape to sexual Assault Legislation and its impact on sentencing The Evolution of Rape to sexual Assault Legislation and its impact on sentencing Introduction Rape is indisputably an offense like no other, a violation not only of the self but of the body as well. Until the year 1983, when rape was codified as an offense within the criminal code, rape was still a mere common law offense in Canada1. Put together, rape laws prior to 1983 incorporated deep-rooted sexism, with a deliberate mistrust of women and statistics strongly indicating absolute incapacity of the Canadian Criminal law system as contributing to this. Rape victims’ words alone were not sufficient to convict assailants unless they provided substantive evidence to support their claims. This was despite the fact that rape occurs to women each 17 minutes in Canada2. Consequently, this resulted in anger among majority women, a factor argued to become the bedrock that spearheaded the need for legal reforms. With various forces advocating for change, rape, which seemingly was an antiquated (very old) term, was now folded, alongside indecent assault into a new offense/crime known as sexual assault. This took in everything from unwelcome touching to any kind of penetration. This particular paper therefore intends to provide an analysis of the evolution of rape to sexual assault legislation and its impact on sentencing. Since rape has turned out to become a significant social as well as a political issue in Canada, criminal justice experts and women groups alike have often demanded new legislation as way of dealing with this particular problem. Legislation is undoubtedly popularly regarded as an effective weapon not only in combating sexual aggression but in achieving justice for sex women as well3. Not surprisingly, a number of nations including Canada set up some kind of rape law reforms within the past decades. These policies have actually resulted into multiple consequences. One of the consequences of the sexual assault legislation in Canada can be argued based on the fact that it has encouraged the various victims of rape to report rape incidents to the authorities, a factor that can be attributed to the improved experience of the rape victims within the Canadian criminal justice process. The rape reforms were generally marked by increasing or higher commitment to petitioner anonymity as well as a greater importance to the victim support4. This undoubtedly witnessed a significant rise in the number of rape victims reporting cases of assaults as soon as the legislation was implemented. Victims of rape presently benefit from various protective measures within the Canadian criminal justice process. The government has too embarked on various initiatives aimed at improving the protection of victims. For instance, various Criminal Code provisions have made it easier for sex assault victims to testify as well as protect their re-victimization within the criminal justice process. On the other hand, the low rate of reporting, charging as well as conviction rates and victim harassment was often associated with the old/previous rape laws. For instance, that a study carried out in Winnipeg during the 1970s revealed that only about 10 percent of the original charges led to convictions, 20 percent reduced to lesser charges with approximately over 70 percent of charges being thrown out of the justice system5. Another consequence of the sexual assault legislation in Canada can be argued based on the fact that it has initiated a restorative approach in as far as sentencing is concerned, as a result creating a focus on the assault carried out by the offender rather than focusing on the sexual nature of the committed offense. The Canadian government has often been fully behind the idea that the sentencing process ought not to be only restorative but also inclusive of the sex assault casualty wherever possible6. In this case, the process of sentencing now focuses on addressing harm carried out by the sex assault offender’s action on the sex assault sufferer and the community, rather than concentrating exclusively on punishment. As part of this comprehensive reforms relating to sentencing, which became implemented in September of the year 1996 under Bill C-41, the Criminal Code comprises a statement containing the purpose as well as the principles of sentencing7. Other than codifying the long-established objectives relating to sentencing including denunciation (criminal behavior condemnation by the community), deterrence (preventing repetitive criminal behaviors) and rehabilitation (the re-integration of the wrongdoer into society), the Criminal Code also included two more restorative objectives including the provision of reparations for the harm carried out on sufferers (victims) or community, and to encourage some sense of accountability among the lawbreakers, and the acknowledgement of injury inflicted to the assault victims as well as to the affected community. When interpreting these particular provisions, the Canadian Supreme Court described Bill C-41 as a turning point marking a significant improvement to the sentencing law in the history of Canada8. The sexual assault legislation in Canada is also argued to have had a significant contribution in as far as limiting the judicial discretion as well as the legal link existing between unchastity and low credibility/integrity is concerned.Prior to the year 1983, the Canadian law is argued to have been incorporating biased views argued to have undermined the credibility of the victims of sex assault including the presumption that sexually-active women were actually more likely to accept sex 9.However, immediately the sex assault legislations were implemented, a number of significant changes developed. The offense became re-defined in gender-neutral terms. A current look at the rape law reforms in Canada clearly indicates that the policy measures introduced have actually played a significant role in as far as eliminating any form of bias that is embedded in sexual aggression10. The National Judicial Institute, established during the year 1988 has for instance helped enhance the judicial capacity of the Canadian Judiciary to enable it handle appropriately sensitive issues that may be brought to court. The reforms to rape laws are undoubtedly illustrative of the various efforts by the Canadian government in getting rid of inherent sexism within the Canadian justice system11. The sexual assault legislation in Canada is also argued to have had a significant contribution in as far as initiating changes in the Canadian police practice, a factor that has had a significant impact on sentencing. Major changes in the Canadian rape laws have definitely had a significant impact on sentencing. In the year 1983, offenses regarding rape were detached from the Criminal Code, as a result, being replaced by the three sexual assault levels. Under this new law, both the men and women could now be victims of assault and charges could now be brought in sexual assault cases involving spouses. Under this new sexual assault law, the police officers could now place a charge should they have reasonable and credible grounds to believe that an assault was indeed committed12. Prior to the year 1983, the police officers faced difficulties with carrying out charges save for situations where there was independent evidence, aside from the accuser’s testimony, to support the complaint. In addition, all through the 1980s, policy commands within the police departments throughout Canada made it compulsory for police to place/lay charges involving wife assault cases where credible grounds existed13. This eliminated a considerable level of discretion in terms of the decisions to place charges, thus, shifting domestic violence from a private affair to becoming a public affair. The eminent assault rates are at least to some extent attributed to the changes relating to the police procedures. Despite the positive development arising from the 1983 reforms in Canada, some advocate for the rape victims argue that it has only resulted in the desexualization of rape, a factor they argue is having a negative impact on sentencing14. They question the reforms to the Criminal Code that set up the gender-neutral offense of sex assault, arguing that the changes made are merely superficial and only work to the disadvantage of women15. In particular, some argue that stereotypes as well as the myths that originated from the old laws are still acknowledged by a number of jurors. Another significant concern has been that the reforms on rape law symbolically closed the issue making it especially challenging for many women to fight against the various conditions generating rape. These include dominant cultures with their well-defined power lines and gender roles. Above all, they argue that the gender-neutral interpretations prevent the recognition of conditions that led to the amendments through the recurrent exclusion of the general impact of the sexual violence. The highlighted reservations are not without justifications. Majority of legal analysis within the courts are not only abstract but also decontextualized16. They have thus been worried that the contextualized and the inequality-grounded analyses regarding the situation of women are not getting enough attention in as far as the judicial deliberations. Despite the positive development arising from the 1983 reforms in Canada, the reforms are also argued to have brought about mixed opinions ranging from those who still do not have confidence with the legal reforms, those who view the reforms as an important opportunity for consciousness raising to those who argue that improvements are normally cumulative and that the prospect for change are bright. In this case, some legal experts have warned against feminists’ over-optimism arguing that the reforms were still possible even without pressure arising from women groups17. Others, on the other hand, argue that the reforms on rape laws are a product of political groups as well as legislative compromises between the feminists and non-feminists interest groups, as such, they argue that reforms are mere piecemeal and unsuccessful/ineffective18. Yet again, others believe that a number of conservatives only supported reforms on rape laws that satisfied their personal interests, with their objectives differing from those of the liberals and women groups. In actuality, there is definitely a noticeable disregard of the consciousness-raising around the issue of rape19. Conclusion From the above analysis, it is clearly evident that the legal system not only reflects but also shapes the societal beliefs in addition to being a powerful tool in as far as implementing social change is concerned. There is no doubt that the new legislation in Canada has expanded the definition or meaning of sexual offenses, made sexual exploitation/abuse a significantly serious offense in addition to making prosecution less intimidating for the sex assault victims. Even though questions may be raised regarding the efficacy of the rape law reforms and their enforcement, there is no doubt that the new legislation has increased the visibility relating to sexual assault crimes. It may take many years for the legal remedies to attain the level of efficacy expected, however, one thing that is clear is the fact that the law reforms regarding rape as well as other sexual abuse has been a vital formal step in as far as highlighting the society’s revised limits regarding sexual abuse is concerned. The history of the civil rights legislation has also been without a doubt instructive here. In general, it is without a doubt that legislation can and often serves as catalyst for change in attitude. It acts not only a deterrent function but also has a moral or sociopedagogic role to reflect as well as shape the moral values and the beliefs of the society. References Canadian Resource Centre for Victims of Crime, “The Devastation of Sexual Assault, 2006 Correctional Service Canda, Forum on Corrections Research,” Retrieved on the 7th April, 2014 from http://www.csc-scc.gc.ca/research/forum/e092/e092a-eng.shtml, 2013. Hess, Robert & Swift, Carolyn, Sexual Assault and Abuse: Socio-cultural Context of Prevention, Routledge, 2013 . Hirsch, Ran, Towards Juristocracy: The Origins and Consequences of the New Constitutionalism, Harvard University Press, 2004. Jones, David, Working with Dangerous People: The Psychotherapy of Violence, Radcliffe Publishing, 2004. Manson et.al, Sentencing and Penal Policy in Canada: Cases, Materials, and Commentary, 2nd Edition, Emond Montgomery Publications, 2008. Makin, Kirk, How Canadas Sex-Assault Laws Violate Rape Victims, Emond Montgomery Publications, 2013. Ogloff, James & Schuller, Introduction to Psychology and Law: Canadian Perspectives, University of Toronto Press, 2001. Roberts, J & Hough, Mike, Changing Attitudes to Punishment, Routledge, 2010. Roberts et.al, “Sexual Assault Legislation in Canada: An Evaluation;” An Analysis of National Statistics, Report No. 4, 1990. Roberts, Julian & Mohr, Renate, Confronting Sexual Assault: A Decade of Legal and Social Change, University of Toronto Press, 1994. Roberts, Julian & Cole, David, Making Sense of Sentencing, University of Toronto Press, 1999. Tang, Kwong-leung, “Rape Law Reform in Canada: The Success and Limits of Legislation,” International Journal of Offender Therapy and Comparative Criminology, 42(3), Pp.258- 270, 1998. Walker, Barrington, Race on Trial: Black Defendants in Ontarios Criminal Courts, 1858- 1958 Canadian social history series, Osgoode Society for Canadian Legal History series, University of Toronto Press, 2010. Read More