Why It's Not Called "Rape" In Canada

“If it’s a legitimate rape, the female body has ways to try to shut that whole thing down. But let’s assume that maybe that didn’t work or something, I think there should be some punishment, but the punishment ought to be of the rapist, and not attacking the child.” – Rep. Todd Akin.

I have been, like so many people, swept up in a hurricane of negative emotion, noise, and – frankly – nonsense in the wake of this statement’s hitting the airwaves. I want desperately to respond to the notion that the “female body” has some magical power to prevent conception in violence, which is so bizarre that I have trouble even grasping the concept. I want to respond to the question of whether the purpose of abortion is to “punish” a “child”, and like most people I have strong and often conflicted thoughts and feelings about abortion.

But these questions have been amply explored, as doctors have essentially debunked the “rape doesn’t impregnate” line of thought, and people have run fresh circles around the question of when and if abortion should be allowed.

There has also been a lot of talk in the past few days about rape. Legitimate rape, forcible rape, actual rape, violent rape, “rape rape” – the list goes on. And I think on this point, I may have something to add.

This frequent repetition of the word “rape” had a strange effect on me, for I find it at once viscerally shocking and anachronistic. See, “rape” is not a word one hears much anymore in Canada. When I was a child, I imagined it to be the worst thing that could happen to a girl – always a girl, never a boy, in that world - ever, second perhaps only to murder. It was a whispered word, an extreme word, a word for conjuring dark alleyways and boogymen.

It was also a word that died out, for me, when I was still a child. In 1983, Canada’s government amended the Criminal Code and replaced “rape” with “sexual assault”. As time went by, we heard less and less about rape. The reasoning behind the change was described in 2010 by Catherine Kane of the Department of Justice, in response to Federal Safety Minister Vic Toews’ attempt to reintroduce “rape”:

We have several offences that cover the conduct previously captured by the very narrow and impossible-to-convict-on charge of rape... And we have several offences to cover the equally harmful sexual offences that fell short of the offence of rape... The replacement of the antiquated rape offence by the current sexual assault offences reflects the reality that the sexual integrity of any and every victim can be violated by any form of non-consensual sexual activity: Globe and Mail.

My first year criminal law professor, a veteran in the field, added that calling it "rape" had fed into the notion that it was really a question of men being overcome by their desires, while calling it "sexual assault" focused on the fact that what it really is, is assault, which is often rooted in issues of power, control, and aggression.

The new offence, “sexual assault”, is defined as unwanted touching of a sexual nature. It is a broad offence, obviously, and has met with stiff criticism for its breadth. Its detractors say that it paints with the same brush those who brutally rape and those who simply misunderstand the situation and innocently touch the other person. Of course, this cuts both ways - someone who was once branded a "rapist" now has been convicted of a sexual assault, and that covers a lot of acts. The change to the law certainly opened up a lot of questions, created confusion, and criminalized a far greater range of behaviours than before.

But what the broader definition really does is to shift the focus away from proving whether or not an act occurred, and onto whether or not there was consent. This has opened its own robust can of worms, but it is a positive development overall, in that the most important element of whether an act constitutes a sexual assault is how the complainant felt, whether the complainant consented, and not what the intentions of the accused were. This only makes sense. The only thing that defines sexual assault as sexual assault is the lack of consent. The exact same act between consenting adults is not an assault at all.

And this means that what constitutes a harmful sexual offence is fluid. It is contextual. It depends on the relationship between the parties, the circumstances, and above all, the perspective of the complainant. Of course, it certainly means that there is a great deal of debate over what is consent, whether there was consent, whether the complainant was even capable of consent, and whether there was a mistaken but honest belief in consent (which is a defence under Canadian law). This debate is absurd at times - whether or not a sleeping woman could be consenting was an actual topic of discussion, and claims of honest but mistaken belief are often ludicrous - but overall it is a good debate to be having.

Now the battle with respect to what constitutes a "serious sexual assault" - what might generally be called a rape in other jurisdictions - crops up at the sentencing stage. And it is a messy debate, full of the same issues regarding what is "violence", whether there were "mixed signals", and so on. It is by no means perfect, and it is often infuriating. When I asked a judge, who had been a criminal prosecutor, whether he thought the wording was problematic, he said that he thought it was a significant improvement on what we had before. He remarked that as a prosecutor he found it bizarre and disrespectful to have to tell a jury what penetration was, what was required for a finding of rape, and to go into precise detail about the accused and the complainant's recollections of the physical act. Focusing on the consent question, once the initial question of whether touching of a sexual nature more generally occurred has been addressed, better served the interests of justice.

That sentiment was bolstered by Ms. Kane's statement that the old "rape" offence was narrow and impossible to convict on. Having seen the furor this week over "forcible/legitimate/assault/violent/actual rape" in America, it seems clear that criminalizing unwanted, non-consensual sexual touching, and labelling it "sexual assault", was a step in the right direction for Canada.