Recently, there have been two high profile sexual assault cases coming out of Newfoundland and Labrador and Nova Scotia. The case in Newfoundland involved an on-duty police officer who had sexual intercourse with an intoxicated twenty year old woman after escorting her home because she had too much to drink. In Nova Scotia, the assailant was a cab driver who sexually assaulted an intoxicated female passenger. Both accused received acquittals on the basis that the Crown did not disprove that either victim did not consent to intercourse. Rulings for these decisions came within days of each other, and the public in both provinces retaliated in protest at their outcome. The Crown in both cases chose to appeal the decisions.
As a fellow Newfoundlander, the facts and the eventual ruling in the Snelgrove case was incredibly disturbing, and really made me paranoid about peoples’ motivations and reliability, whether they be a figure of authority or someone you know like a friend or family. In the spirit of raising continuing awareness on this disturbing subject, I decided to investigate into sexual assault issues here in New Brunswick. The result was not good.
According to an online University of New Brunswick “Sexual Assault Climate Survey,” 252 of the survey’s 1200 participants reported as a victim of sexual assault. That ratio is equal to 21% of those who took the survey. Other facts from the survey include 90 percent of sexual assaults reported occurred between two people who knew each other, and 60 percent of reported sexual assaults took place when both the assailant and victim were under the influence of alcohol. These statistics are disturbing, especially since intoxication was a major factor with the sexual assault cases mentioned earlier.
The problem with sexual assaults that occur when the victim is drunk is that vitiation of consent becomes a major issue. For a person to be incapable of giving consent while drunk they must be incapacitated, or in other words, black-out, meaning the threshold for incapacity is extremely high. This level of drunkenness is not an accurate reflection of the level of drunkenness women are usually under when they are sexually taken advantage of. Unless the victim’s lawyer can establish the victim was incapacitated to the point of having no recollection of what was happening, then the victim is still legally able to consent to intercourse. The law of consent does not sufficiently protect women when alcohol is involved. Furthermore, the defence of an honest but mistaken belief in consent places too much emphasis on the perspective of the accused in cases where the victim is drunk and the accused is sober, such as in the Newfoundland Snelgrove case
So with all that in mind, I’d like to inform readers on some of the basics principles that constitute sexual assault in Canada in an effort to help lower the percentage of sexual assaults that occur on university campuses, such as UNB, and across the country. The Canadian definition of sexual assault comes from the case R v Chase , where the court held: “Sexual assault is an assault which is committed in circumstance of a sexual nature, such that the integrity of the victim is violated.” In essence, sexual assault is a violation of the victim’s personal bodily integrity. Numerous factors, including the body part touched, the nature of contact, the situation in which it occurred, any words or gestures accompanying the contact, the accused person’s intent or purpose, including the presence or absence of elements of sexual gratification, determine whether a person commits a sexual assault. For either of these factors to be upheld in court the sexual or carnal nature of the conduct must be visible to a reasonable observer. In other words, a person must be able to recognize the conduct of an assailant as being sexual or carnal in nature.
The above objective test is problematic because it contributes to the under-reporting of sexual assaults. Based on the test, for there to be a sexual assault a person must be able to acknowledge they are being sexually assaulted, which raises the issue of victims who experience sexual assaults without knowing an assailant is sexually assaulting them because they do not know the various factors that constitute a sexual assault. My time studying the topic and researching it demonstrates to me two things: the stigma associated with sexual assault victims is a deterrent for those who have been sexually assaulted to report it and speak out about it, and that the public is unaware of the legal definition of sexual assault, and therefore, may not realize certain treatment they received from others in the past would be classified as sexual assault.
This blog post was written by a CCLA-PBSC RightsWatch student. Views expressed do not necessarily reflect the view of the CCLA or PBSC.