Bringing Awareness to the ‘Gap’
A brief look at how stereotypes, myths & seduction affect the application of law in sexual assault cases
By Jessica Zita
Law has power in constructing knowledge and ideology, yet it functions in dynamic tension with social structure and systems that affect its operation. –Ruthy Lazar
If the outpouring of dialogue inspired by Ghomeshi indicates anything, it is that Ruthy Lazar was onto something: there is a gap between legal theory and its function, and it is apparent in how the courts treat stranger and nonstranger sexual assault cases (see her 2010 article, “Negotiating Sex: The Legal Construct of Consent in Cases of Wife Rape in Ontario, Canada” in the Canadian Journal of Women and the Law). We have a problem: there is a widespread lack of public confidence in the criminal justice system with respect to sexual violence. It is true that sexual assault law in theory and sexual assault law in practice are not always the same. There is a gap between sexual assault law as interpreted by the Supreme Court of Canada and its application and enforcement at the grassroots level by police, prosecutors and trial judges.
Research shows that most sexual assaults are committed by someone known to the assailed. Despite this fact, nonstranger assaults are the least reported and prosecuted form of sexual assault. This, in response to the discrepancy in the application of the law, has resulted in a large enforcement gap with respect to sexual assault offenses allegedly committed by nonstrangers. It is here that one begins to see whythe facts in Ghomeshi have caused such uproar. The enforcement of law at grassroots levels has been unable to apply these standards fairly.
The Gap: What is it and why?
The enforcement gap with respect to assaults by nonstrangers results in-part from the influence of cultural paradigms and narratives about what is ‘normal sexual behaviour’ on how grassroot decision-makers think and talk about sexual activity and sexual assault. It is why Ghomeshi has prompted mass media discussion of rape culturethat is focused on an interrelation of how, why and what effect legal analysis has on ‘norms and expectations’.
Articulating ‘The Problem’
It is a common misconception that one must accept that which makes them uncomfortable because they are made to feel it is the ‘normal’ thing to do.
The Ghomeshi case introduced these ‘myths’ to broader audience. The complainants are put on the stand and asked questions about the alleged assaults. The complainant testifies that they continued dating after the alleged assault. The presumption when looking at this pattern is that these are not typical victims, since the fear of the abuser is not “typical.”
Similar fact patterns play out in the context of relationships that have been going on for years. Sometimes, saying ‘no’ is not an option. Often, complainants are not being heard, so they resort to saying nothing as a way to prevent crueller harms.
Some lower courts would argue, even today, that this is simply a woman fulfilling her marital purpose (see for example R v V(R), at para 10). Some judges have trouble seeing a “dividing line” between what is assumed to be normal, acceptable sexual activity within a relationship, and what constitutes criminal sexual activity. There is a fine line between non-consensual sexual touching and ambiguous communication, and that line is commonly referred to as “sexual seduction.”
A. Seduction
Seduction, generally speaking, is the process of inducing someone to do or agree to do something that, but for the seduction, they might not do. Seduction remains one of the principal psychosocial mechanisms giving rise to internal psychological conflicts between reason, emotion and instinct that characterize relationships. Seduction is often used to deflect responsibility for one party’s sexual choices and sexual activity to the other party, a function that conveys how seduction has informed the legal construction of responsibility in sexual assault cases.
In seduction, the seducee exercises “free will” and makes “autonomous choices” in response to desire. Those who touch first and ask later, if at all, may honestly believe they are acting in accordance with what the other party wants because the one who initiates believes that the desire is mutual. This is the story many sexual offenders tell, feeling as if they were just doing what the complainant ‘wanted,’ as per usual. Essentially, the roles of the initiator-aggressor and the target become blurred, and the question of who touched whom without consent is lost from the inquiry. Such cases rarely proceed.
When intention or motive are ambiguous—as is the case in most nonstranger sexual assaults—a decision-maker will more easily rationalize a decision not to proceed, despite a solid case on the whole of the evidence, by concluding that if the case went to trial, the trier of fact would be unlikely to believe that the accused had the required mens rea.
B. Deception as seduction: creating a gap where parties to a relationship lack protection when faced with sexual behaviour that is factually criminal
There is little room to argue when deception is masked as seduction. The Court’s interpretation of sexual consent law leads to a contradiction when consent obtained through deception is at issue, however. The definition of “sexual consent” as “voluntary agreement” suggests that the agreement will be deliberately formed based on relevant information—that is, that valid consent is “informed consent.” If so, duplicity with respect to any issue that influenced the decision made by a complainant must vitiate consent.
As long as deception or fraud does not have the effect of exposing the complainant to significant risk of serious bodily harm, a complainant who agrees to sexual activity that they would have refused had they not been deceived, is deemed to have “consented.” Thus, sexual consent by individuals in relationships, whom are neither incompetent nor incapable, but deceived by circumstance, is valid and legally effective.
That approach reinforces the widely held understanding that seduction, even if it involves some element of deception, is not sexual assault because the seducee is a free‑though not necessarily prudent—actor who makes choices about what to do in response to the seducer’s words and actions. In the absence of proof beyond a reasonable doubt to the contrary, all sexual activity is assumed to involve some elements of seduction and is therefore presumed to be consensual, notwithstanding the words and conduct of both parties, either of whom could refuse to participate. These assumptions continue to be used by many decision-makers to distinguish noncriminal sexual activity from sexual assault. The net effect is that many complainants are found to have “consented”—even though the legal significance of the facts viewed through the lens of the legal definition of “consent” as voluntary agreement would show that in law they did not.
When both police and prosecutors use a seduction paradigm to screen such complaints, often the result is doubt concerning the absence of consent leading to nonenforcement.
The effect of this problem is a disproportionate result between the commission of nonstranger sexual assaults versus the reporting and enforcement of nonstranger sexual assaults.
Ghomeshi has moved us to take a microscope to the facts underlying sexual assault cases. In doing so, a grey area is found with respect to how courts treat nonstranger assaults. Notions such as seduction are factored into the consent analysis. That makes for a very fine line, where a victim of nonstranger sexual assault is caught without systemic protection while at the same time a number of people are protected from wrongful prosecution and conviction.
The consent analysis goes much deeper than “yes” or “no.” The attitudes and beliefs of ordinary Canadians, police, prosecutors, and judges determine how legal decisions about sexual activity are made. Our system and its process must therefore evolve to narrow this enforcement gap.
If anyone is looking for further information and/or sources on the subject matter discussed in this piece, Jessica can be reached at jessicazita@osgoode.yorku.ca.