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

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.