Judicious judgments? : judicial definitions of sexual violence : examining the impact of sexual assault legislation

Abstract

In an attempt to eradicate biases in substantive law and evidentiary procedures, legislative changes were implemented for sexual offences in 1983. Historically, biases in rape law had resulted in high attrition of cases at each stage of criminal justice processing, low conviction rates, and poor treatment of victims. The new legislation, which included the introduction of the offence 'sexual assault', was designed to emphasize the violent nature of sexual aggression rather than the sexual nature. Law reform, however, is influenced by the response of the criminal justice personnel who must implement the new legislation. Judges are critical personnel within this framework because they both implement the reform in individual court cases and interpret the meaning of the new law. It is critical, therefore, to examine judicial understanding of the social, political, and economic meaning of the law, and more specifically, to examine their understanding of the nature of sexual violence. Using a content analysis of 109 'remarks at sentencing', this study examines the impact of the 1983 reform on judicial definitions of sexual violence. The sentencing 'transcripts' are drawn from 66 sexual offence cases heard at the Court of Appeal for Saskatchewan between 1975-1988. Transcripts are analyzed for the absence or presence of references to each of 9 themes (violence, coercion, physical impact of the offence on the victim, psychological impact of the offence on the victim, breach of trust, the significance of penetration, the accused's criminal history, the role of alcohol or drug abuse, and the accused's control over his sexual drive). Each theme reflects an influential variable in judicial decision-making concerning sexual offences. The results of the study indicated that since 1983,frequently and suggest that judges are attempting to reflect the 3 tier classification of sexual assault outlined in the new legislation. At the same time, however, judicial definitions of these variables continue to reflect stereotypes and myths associated with sexual violence. Judicial responses to sexual violence tend to minimize the culpability of sexual offenders and to minimize the seriousness of the offence. One of the most significant findings was that the 'sexual' element continues to dominate judicial definitions of sexual aggression rather than the 'violent' element. This emphasis implies that 'coercive' sexual acts have the same sexual character as 'consensual' sexual acts. It appears, therefore, that the reform has been unsuccessful in meeting its objectives at the judicial level. However, the small change which has occurred may lay the groundwork for further change in the future.