More Teachables About Sexual Assault
Last week we authored a post about rape culture, using the recent incident between Sarah Thomson and Rob Ford as an illustration of commonly held myths about sexual assault. We received a variety of comments, some of which deserve further discussion.
One commentator admonished us, as practicing lawyers, for making a determination of Mr. Ford’s culpability without his having been charged criminally. That same commentator argued that Mr. Ford is “entitled to the presumption of innocence” and that he “IS innocent until proven guilty.” Right. Ok, so first of all, a person can be found to have committed the tort of sexual assault in a civil proceeding based on a different burden of proof than that in criminal proceedings: a balance of probabilities. Many lawyers working with sexual violence survivors will admit to being ambivalent about their clients making police complaints; although helpful in the event of a conviction, a police complaint is not imperative for a successful civil claim against an abuser. There’s no reason why the only and ultimate determination about sexual assault needs to be made within a criminal context.
More importantly, we would like to reiterate that most sexual assaults in Canada are not reported to the police. A 2008 Statistics Canada publication found here reported that about one in ten sexual assaults are reported to the police. The same publication reports that sexual offences are less likely to be cleared by police than other types of violent offences, citing that in 2007, charges were laid in about a third of sexual offences reported to police, as compared to charges being laid in almost half of other types of violent crime reported to police. This varies amongst police services; the Ottawa Police Service, for example, dismissed sexual assault complaints at a rate ten times higher than that of any other crime in the years between 2003 and 2007. Finally, the Statistics Canada publication found that sexual offences are, on average, less likely to result in a finding of guilt than other violent crimes.
So please don’t suggest that the only thing a woman can do to have her experience of sexual assault validated is complain to the police – because it won’t be.
Another commentator told us that, “back in the day, a woman would have simply spun around and slapped Rob Ford in the face if he had pinched a bum.”
Really? Are we actually having a serious conversation about accountability for sexual violence here? Because if so, there are dense and meaningful debates about the utility of participating in a criminal justice system that is embedded in racism, colonialism, and violence. Similarly, there are increasing community-wide responses to sexual violence that demand greater accountability around sexual violence than that achievable through policing.
Rape culture exists to diminish women’s experiences of sexual assault. It places the focus on a woman’s credibility, conduct, and sexuality. It prevents us from examining why sexual violence is so pervasive, why we fail to stop sexual violence, and what type of participation we all have in condoning sexual violence. The Steubenville case has prompted some hard dialogue on rape culture, and we’ll end with a particularly thoughtful piece reminding us that rape culture is the cultural acceptance of rape: we all carry responsibility for it.
I am that commentator.
I certainly did not “suggest that the only thing a woman can do to have her experience of sexual assault validated is complain to the police – because it won’t be.”
The best defence is a good offence, right? (Puns intended.) I made a narrow point which you conveniently ignored (even if I had been referring just to the criminal law) as a springboard for what amounts to an ad hominem response.
I didn’t mention criminal law. Why would you have assumed my comments were restricted to that part of the law? Just because I used “innocent until proven guilty”? I didn’t mention the standard of proof.
There’s what amounts to presumption of innocence even on the tort side. It’s called the risk of non-persuasion. That’s Ms. Thomson’s burden. Grant that I know something about tort law.
David Cheifetz
I will add one more point, after which I have said my piece. You did not mention my 2nd point, about which there can be no ambiguity. Why one or both of you thought it relevant to refer to Mr. Ford’s “public record on women”. I’ll quote the passage again.
Fair-minded readers will draw their own conclusions.
David Cheifetz
An Apology
I have reread, more carefully, my comment to Ms. Galldin & Ms. Robertson’s first posting. I was wrong in stating that I didn’t mention “criminal law”. I did, even if I didn’t use the phrase “criminal law”. Regardless of my intent, they were entitled to assume – as the obvious interpretation – that I was writing about criminal law, only, and not tort law, too.
I wrote, at the beginning of my comment, introducing my points:
There is nothing elsewhere in my initial comment that ought to have made them consider whether I was writing about something other than criminal law.
David Cheifetz