The Judicial Treatment of Marital Rape in Canada: A Post-Criminalisation Case Study

Chapter 9 in Randall, Koshan and Nyaundi, eds, The Right to Say No: Marital Rape and Law Reform in Canada, Ghana, Kenya and Malawi (Hart Publishing, 2017)

48 Pages Posted: 18 Sep 2017

See all articles by Jennifer Koshan

Jennifer Koshan

University of Calgary - Faculty of Law

Date Written: September 14, 2017

Abstract

This chapter analyses the judicial treatment of marital rape in Canada from 1983 until 2013. This review of 30 years of case law – the first comprehensive review of marital rape decisions in Canada since criminalisation – allows an assessment of whether the sexual assault laws that women advocated are being applied as intended. Section II discusses the reported cases of marital rape in Canada over this period, focusing on issues related to consent, mistaken belief in consent, evidence, and sentencing. This analysis reveals that, although there are some positive developments, there are significant ongoing challenges with fulfilling the goal of protecting women’s rights in the application of sexual assault laws in the spousal context. Section III concludes by highlighting the overall trends in the case law and identifying potential responses to the continuing challenges.

Suggested Citation

Koshan, Jennifer, The Judicial Treatment of Marital Rape in Canada: A Post-Criminalisation Case Study (September 14, 2017). Chapter 9 in Randall, Koshan and Nyaundi, eds, The Right to Say No: Marital Rape and Law Reform in Canada, Ghana, Kenya and Malawi (Hart Publishing, 2017). Available at SSRN: https://ssrn.com/abstract=3037131

Jennifer Koshan (Contact Author)

University of Calgary - Faculty of Law ( email )

Murray Fraser Hall
2500 University Drive NW
Calgary, Alberta T2N 1N4
Canada

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