Katherine Long (2L)
Earlier this month, the Ontario government introduced the “It’s Never Okay” campaign, an initiative to address sexual violence. It includes curriculum changes to teach students about consent in grades one through twelve. These reforms provide an opportunity to also examine the way sexual assault is taught and treated in law school.
As former Justice L’Heureux-Dubé famously observed in R v Seaboyer, “[s]exual assault is not like any other crime”. Over 80% of sexual assault victims are female. One in four women in North America will be sexually assaulted in their lifetime, with the highest rate of victimization amongst women aged 15-24. Approximately 3% of sexual assaults in Canada are reported to the police, and only 0.3% result in a conviction.
Generally, under Canadian law, assault is the application of physical force without express or implied consent.
The meaning of consent shifts in the context of sexual assault. Where a person applies physical force to another in circumstances of a sexual nature, the accused must demonstrate they took reasonable steps to ascertain consent. Implied or advance consent are not legally recognized.
In Canadian law, the offence of sexual assault emerged against a backdrop of historically sexist laws and prosecutorial practices. Prior to the 1980s, a woman’s sexual history could be used as evidence to show that she consented. A complaint could be excluded if it was not made at the first reasonable opportunity. An accused could not be convicted on the evidence of a single witness unless the witness’s testimony was corroborated by evidence implicating the accused. Under this doctrine, medical evidence was often excluded. After these doctrines were abolished, an honest belief in consent could serve as a defence against charges of sexual assault. This included cases where, as in Pappajohn v The Queen, the accused testified that there was “oral resistance” and “[the complainant] was hysterical and she was screaming and crying.”
The legal hurdles faced by sexual assault complainants were often compounded by discriminatory practices from the police. In Jane Doe v Toronto (Metropolitan) Police Commissioners, the plaintiff successfully sued the police for negligent investigation of a serial sexual offender and established a breach of her section 7 and 15 Charter rights. Justice MacFarland noted sexual assault complainants received uniquely poor treatment. In one instance, the police yelled at the victim and later “confined the victim in an elevator and chased her down a hallway.”
Teaching sexual assault requires an awareness of this historical context and the biases that this history reflects. In a criminal law class, it is statistically likely that many students will be either victims or perpetrators of sexual assault.
Professor Vincent Chiao chose not to teach sexual assault in his large section this year, though he has taught it in past years. Interested students had the option to attend an extra lecture on the subject. He says that many elements of sexual assault, including general notions of consent can be taught through other areas of the criminal law. If he can avoid traumatizing his students, he will.
Professor Chiao does not attempt to cover every criminal offence, but focuses instead on select areas and core concepts. Teaching sexual assault would allocate a significant amount of class time to a subject that is ultimately extremely difficult to examine. Professor Chiao expressed his concern that a student might underperform on an exam as a result of a traumatizing fact pattern.
For Professors who regularly teach sexual assault, including Professors Stewart and Shaffer, the topic allows students to explore complex policy questions in a politically controversial area. It also gives rise to difficult legal issues in terms of the actus reus and the mens rea, and will be critically important to students who go on to practice criminal law.
To contextualize sexual assault, many professors begin the class discussion by outlining the history behind the provisions. Professor Stewart expressed the hope that by beginning classes with this historical introduction “the obvious unfairness and even absurdity of some of those old rules helps to alert people to the danger of reintroducing them informally in the guise of unwarranted assumptions about how people behave in sexual encounters.”
With an eye to the sensitivity of the topic, some professors actively choose not to call on students, whereas others encourage debate. On the question of how to handle remarks that may reinforce harmful attitudes towards sexual behaviour, Professor Shaffer remarked that she could not imagine a comment that would cause her to ask a student to leave the class. “Shutting down communication doesn’t get you anywhere,” she noted, stating she preferred to critically engage with students and ask them to examine the assumptions that underlie their statements.
The concern that students might be triggered looms large in classes on sexual assault. For this reason, Professors Shaffer and Stewart include asterisks throughout their material to warn students of cases with extremely explicit and distressing facts.
Several faculty members who teach sexual assault choose not to examine it. Those who do often use fact patterns that might be less distressing to students. However, as Professor Shaffer notes, examinable issues such as the actus reus and mens rea of sexual assault often go to the essence of the offence. As a result, these facts can pose an elevated risk of triggering a student.
Despite these concerns, teaching sexual assault can often be an important opportunity to explore complex policy and legal issues, issues that will increasingly feature in public school classrooms. The concepts of sexual assault and consent enable victims and perpetrators to identify and name their own experience.
However, if we, as a student body, are concerned about sexual assault, we need to look beyond whether or not sexual assault should be taught in first year criminal law. An understanding of the impact of vicarious trauma and re-traumatization are fundamentally important to legal practice for many lawyers, and engage questions of ethical advocacy.
Following Kathleen Wynne’s example, an attempt to combat rape culture and misogyny while responding to students’ realities must be multi-faceted, recognizing that this is not simply about helping students become better advocates, but better advocating to help students.
