LALIT has pleasure in publishing the speech that Rajni Lallah, speaking for the MLF, gave to the Law Reform Commission on 22 July 2019. Here it is in toto. She and the other members all addressed the Commission in Kreol, but her speech is also available here in English.
In Canadian law, rape has been considered a form of sexual assault, rather than a category that is separate from assault laws, since 1983.
(See http://www.constancebackhouse.ca/fileadmin/website/1983.htm entitled “A History of Sexual Assault legislation”).
There have been, over the years, and particularly in the last 3 years, a wave of amendments to these Sexual Assault laws as part of a three-fold strategy against gender-based violence: to prevent gender-based violence, to provide support for survivors of such violence, and to promote responsive legal and justice systems. The intention of government and Parliament in amending Sexual Assault laws is not based on punitive or repressive measures, but seeks to encourage victims of sexual assault to report it. It is estimated that only 5% of sexual assault in Canada are reported to police. Amendments to the law are accompanied by “more support for trauma-informed and culturally appropriate practices, and training and resources for a range of service providers and criminal justice system professionals” (See first link below). Laws relating to sexual assault are being actively popularised by Canadian authorities.
Canadian government strategy against Gender-based violence: https://cfc-swc.gc.ca/violence/strategy-strategie/report-rapport2018-en.pdf
Examples of shift towards addressing sexual violence by police and armed forces in Canada:
Canadian Criminal Code including Sexual Assault: https://laws-lois.justice.gc.ca/PDF/C-46.pdf (Current to June 6, 2019)
Definition of Sexual Assault in the Canadian Criminal Code
1. Sexual assault is defined as any sexual activity without consent (see Section 265). This definition includes rape. The broad definition of Sexual Assault adopted means that:
a) There is recognition that other forms of unwanted sexual activity can be as damaging to survivors as forced sexual intercourse,
b) The useless and humiliating debate in Court focused on whether there has been penetration or not is done away with.
c) The law includes sexual assault by persons of the same sex, or by a woman. The MLF aim here is to oppose sexual assault as a form of patriarchal violence, which is not limited to sexual assault on women.
c) In the Mauritian context, it would also make it possible to revoke Section 250 of the Mauritian Criminal Code that outlaws consensual “sodomy” (anal intercourse).
2. Sexual Assault is part of the section on “Assault” (see section 265) meaning that the emphasis is on imposed sexual activity, not on the technical nature of the sexual activity. Just as in all assault under Canadian law, there are three levels of sexual assault: the degree of personal injury to the survivor determines which level applies. (See clauses 271, 272, and 273).
1. Consent is defined as being “the voluntary agreement of the complainant to engage in the sexual activity in question” (See 273.1 (1)). Consent is considered a question of law (See 273.1 (1.2).
Lack of consent is defined as:
“(a) the agreement being expressed by the words or conduct of a person other than the complainant;
(a.1) the complainant is unconscious;
(b) the complainant is incapable of consenting to the activity for any reason other than the one referred to in paragraph (a.1);
(c) the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority;
(d) the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or (e) the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity.”
The definition of Consent is not restricted to the circumstances where no consent has been given described in this subsection (See 273.1 (3)). This is in stark contrast to French law based on a completely different logic of establishing “violence, constraint, threat or surprise”.
2. Belief that there had been consent is not a defence according to law when this belief is based on the accused’s “self-induced intoxication”, “recklessness or wilful blindness”, choosing to ignore signs that there is no consent, where no steps are taken to check whether consent is being given, where there is no evidence of consent given or the complainant is in no position to give consent (See 273.2).
The responsibility for ensuring there is consent is on the person who is initiating or pursuing the sexual activity. When someone has said no to sexual contact, the other person cannot rely on the fact that time has passed or the fact that the individual has not said no again, to assume that consent now exists. Consent to future sexual activity is not consent if at that later time a person is unconscious.
3. A husband or wife may be charged with sexual assault in respect of his or her spouse, whether or not the spouses were living together at the time (See Section 278).
4. The age of consent for sexual activity is 16 years. However in Canada, the age of consent is 18 years where the sexual activity involves prostitution, pornography or occurs in a relationship of authority, trust or dependency (e.g.with a teacher or babysitter). There are exceptions for sexual relationships for people who are close in age. (See 150.1) This means that a person in Canada as young as 14 can legally consent to sexual activity with someone who is less than five years older than them as long as there is no relationship of trust, authority or dependency or any other exploitation. The MLF believes that such legal consent should be limited to someone three years older, that is, less than 18 years. In Canada, a 12 or 13 year old can consent to sexual activity with another young person who is less than two years older and with whom there is no relationship of trust, authority or dependency or other exploitation. We believe these exceptions to be reasonable especially given that sexual activity includes touching or kissing.
Sexual reputation of complainant inadmissible as evidence
1. Evidence of sexual reputation, whether general or specific, is not admissible for the purpose of challenging or supporting the credibility of the complainant under sexual assault laws (Section 277).
2. Evidence of whether the complainant engaged in previous sexual activity with the accused or any other person to infer that consent for sexual activity in question was given or to attack the complainant's credibility is not legally admissible (See 276.1).
Consideration for Sexual Assault complainant
1. Canadian Sexual Assault laws explicitly show relatively more consideration for the complainant. For the production of any record on the complainant, for instance, (defined as containing personal information for which there is a reasonable expectation of privacy – see 278) relating to a complainant or a witness being produced to an accused during proceedings the judge/s must weigh among other factors: “(c) the nature and extent of the reasonable expectation of privacy with respect to the record; (d) whether production of the record is based on a discriminatory belief or bias; (e) the potential prejudice to the personal dignity and right to privacy of any person to whom the record relates; (f) society’s interest in encouraging the reporting of sexual offences; (g) society’s interest in encouraging the obtaining of treatment by complainants of sexual offences; and (h) the effect of the determination on the integrity of the trial process” (See 278.5 (2)).
Similarly, “Society’s interest in encouraging the reporting of sexual assault offences” is one of the factors that the judge/s must weigh in deciding whether any proposed evidence involving past sexual activity is relevant to the case in question (See 276 (3) (b)).
2. Corroboration is not required and the judge does not instruct the jury that it is unsafe to find the accused guilty in the absence of corroboration in Sexual Assault cases (See 274).
3. There is no time-limit to report and for criminal charges to be laid in Sexual Assault cases.
Sexual Assault in real terms
There is an on-going national survey on Gender-related violence launched in April 2018 to understand the reality of gender-related violence in order to prevent it and to support survivors and to ensure justice. The contribution of the women's movement, in particular movements such as #metoo, TimesUp, and the global Women’s Marches exposing sexual assault particularly by those in a position of relative power, and exposing the challenges faced by survivors has been officially recognised by the Canadian government (See first link). Such an approach provides a way to gauge whether Sexual Assault laws are of use to victims. The MLF believes this kind of enlightened approach far more useful than a one based on repression.
Muvman Liberasyon Fam (MLF), 22.07.19