Legalising Justice for All Women: Canadian Women's Struggle for Democratic Rape Law Reforms

Elizabeth Sheehy, "Legalising Justice for All Women: Canadian Women’s Struggle for Democratic Rape Law Reforms" , 6 Australian Feminist Law Journal, pp. 87-113 (1996)

27 Pages Posted: 19 Jun 2013

See all articles by Elizabeth A. Sheehy

Elizabeth A. Sheehy

University of Ottawa - Common Law Section

Date Written: 1996

Abstract

The keynote address takes the conference title and theme, "Legalising Justice for All Women", and considers it in the context of the Canadian women's movement's efforts to draft and to defend a rape law that will serve the interests of all women. Two specific examples are used: the work of feminist activists in shaping a new rape law, Bill C-49, in 1991-92 after the Supreme Court of Canada declared important protections in the law for rape survivors as void for violating men's constitutional rights; and the more recent efforts of feminists to ward off a new defence strategy of requesting access to women's counselling and other records in order to suggest "false memory", "motive to fabricate", "consent" or grounds for "mistake" regarding consent.

Both of these efforts to create a just law of sexual assault have been founded on feminist understandings of equality as profoundly shaped by context, thus requiring an analysis of racism, sexism, disability-ism and heterosexism. Sexual assault cannot be responded to using "general principles of general application" in law: it is gendered, raced, heterosexist and exploitative of women with disabilities through and through and requires specific principles in response. The women's movement's claims to social justice have been buttressed by a legal analysis of rights to equality and to security of the person in SS 7 and 15 of the Canadian Charter of Rights and Freedoms [hereafter Charter].

Both of these efforts also signify that feminist commitment to democratic process and values is not only richly productive of creative and potentially transformative new law, but is also deeply resisted by the judiciary. As the potential of Bill C-49 has been avoided by the new defense strategy of seeking women's personal records, with the assistance of the Canadian judiciary, it is clear that rape law reform is a long-term political struggle to change the status and social power of women: our legal reforms serve to shift the location, the degree of explicitness, and the identity of the players in this fight. Whatever we have achieved through the political process has been subjected to vigorous attack in the courts, and the judiciary has frequently used its powers under the Charter to roll back women's gains, thereby preserving judicial discretion and men's sexual prerogatives. As Andrée Coté has observed, if the result of women's refusal to co-operate with disclosure requests is that women who prosecute and women who counsel are criminalized by contempt prosecutions:

This scenario would force us to conclude that the State, acting through its judicial system, is deliberately becoming a party to the legal and political subordination of women to the interests of men ... [W]e shall lose another of our illusions about the promises made by democracy in Canada.

The remainder of my address is divided into three parts: I will first give the background legal information regarding Canada's sexual assault laws; I will second describe Bill C-49 and highlight the ways in which feminist activists tried to craft a rape law that would serve all women, the legislation that resulted from the law reform process, and the impact of the reforms as evidenced in current practices. I will third describe the latest crisis in sexual assault law — the defense effort to gain access to women's records — specifying the reasons why this strategy is successful and analyzing it from the point of view of women's resistance.

Keywords: sexual assault, equality, rape law, Bill C-49, false memory, motive to fabricate, consent or grounds for mistake regarding consent, feminist, women's personal records, Charter, judiciary use of Charter, rape law, sexual assault law

Suggested Citation

Sheehy, Elizabeth A., Legalising Justice for All Women: Canadian Women's Struggle for Democratic Rape Law Reforms (1996). Elizabeth Sheehy, "Legalising Justice for All Women: Canadian Women’s Struggle for Democratic Rape Law Reforms" , 6 Australian Feminist Law Journal, pp. 87-113 (1996). Available at SSRN: https://ssrn.com/abstract=2278574

Elizabeth A. Sheehy (Contact Author)

University of Ottawa - Common Law Section ( email )

57 Louis Pasteur Street
Ottawa, K1N 6N5
Canada

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