The language and law of sexual assault

Rob Anders’ plan to amend The Criminal Code to re-introduce the formal charge of rape is being met with some near-universal panning from the legal community.

The Conservative Calgary West MP will be tabling a private member's bill to split off a new criminal charge of rape, vowing that penalties will be stiffer and that offenders will no longer get off easy with the general charge of sexual assault. His amendment would create an 8-year mandatory minimum for the charge or rape, with that rising to 10 years for a repeat offender. The charge would also be served consecutively, rather than concurrently.

But his plan isn't currying much favour in the legal community.

Christine Silverberg, partner at Wolch deWit Silverberg & Watts, says Anders is "politicizing the issue."

Rishi Gill is a criminal defence lawyer in Vancouver. He calls the idea "posturing and pandering."

The two lawyers have a unique perspective on the proposal — Silverberg previously served as Calgary's chief of police, while Gill worked as a Crown prosecutor before starting his own defence practice.

"I don't think this can be done right," says Silverberg.

She remembers serving as a police officer previous to the changes to The Criminal Code in 1983 that eliminated 'rape' as a standalone offence. Back then, she says, there was a slew of problems with the charge. For one, she says, it was impossible under the old regime for a man to rape his wife — her consent, in those situations, was implied (the same goes for some cases where the men and woman had a prior relationship.)

The rape charge also had very specific and strict evidentiary limits — women were expected to file the complaint immediately, or else risk hurting the credibility of their claim. Women, too, had to prove penetration occurred.

"It's a loaded word. There's a lot of baggage with that word," says Silverberg, adding that if the definition reverts back to what it was before its abolition "it would bring back a lot of that old baggage."

Silverberg can't imagine anyone calling for that definition to come back.

"I don't think that Rob Anders understands what rape was," she says.

But Anders confirmed to National that, yes, he's looking at the pre-1983 definition, which reads:

"Rape is the act of a man having carnal knowledge of a woman who is not his wife without her consent, or with consent which has been extorted by threats or fear of bodily harm, or obtained by personating the woman's husband, or by false and fraudulent representation as to the nature and quality of the act."

Anders says the move is aimed at cutting down on lax sentencing for those found guilty of sexual assault.

Yet Silverberg points out that Anders might not have looked into the figures on the matter. Before 1983, she says, the conviction rate for rape was hampered by difficulties in proving penetration and lack of consent. One study conducted then put the average sentencing at five to seven years.

Anders says the average sentence for sexual assault is two years, but couldn't say whether that was for all sexual assault charges, or just the lesser of the three.

Silverberg suggests that Anders' frustrations may be ill-placed.

"If there are concerns about how sexual assaults are investigated, prosecuted and sentenced, maybe that has nothing to do with the law," she says.

This isn't the first time that the idea has been floated. In 2010, then Public Safety Minister Vic Toews suggested the same idea, only to walk back on it when the Justice Department vocally objected.

Gill agrees that the successors to the rape statute — the three charges of sexual assault, sexual assault with a weapon, and aggravated sexual assault — have more than adequately covered the crime. They can take into account any injuries the victim sustains, whether the victim was threatened, and whether a firearm was used in the crime.

"The code works just fine," he says while creating parameters on the assault, like penetration, creates a "burden of proof on the victim."

Gill says that in his experience with defending sexual assault cases, discretion from the prosecution and the court have always resulted in adequate sentences for those found guilty. He's skeptical that Anders has found evidence of the contrary.

"It'd like to see the proof of that. I'd like to see specific cases," he says. "If he has a problem with how the Crown is charging, then he should speak to the Crown."

Anders says the bill is the product of his consultations with victims, police officers, and lawyers. He rejects the criticism that the idea has faced.

"What I would heavily criticize right now is these criminal charges of two years," he says.

Anders wouldn't say whether this new charge of rape would replace the existing statute of aggravated sexual assault, but he would say that he would adopt the previous definition found in The Criminal Code. As to how he would address the shortcomings of the previous statute — namely, the evidentiary barriers to proving penetration, that the law only applies to women, and the exemption for men who rape their wives — he wouldn't say.

Anders' bill has yet to be tabled, and he did say that he was still considering the details.

But the MP insisted that those charged with sexual assault shouldn't be released on a day pass, or on probation.

Yet a 1997 Statistics Canada study found that aggravated sexual assault and sexual assault with a weapon were, of all criminal charges aside from murder, the two most likely to result in jail-time. Eighty-nine per cent of those charges sentenced the offender to incarceration, and only seven per cent resulted in probation.

The federal government, however, does not appear to prepare statistics on the three charges individually, instead it rolls the three together, which explains a relatively low average jail-time and a high probation rate.

Even so, Anders says that police tend to opt for the lesser sexual assault charge, rather than aggravated sexual assault, because it's easier to prove.

"There's no evidence of that," says Silverberg. "If they're difficult to prove under the sexual assault charge, why would it be easier to prove rape?"

"This is all about politics."