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Remarkable changes to sexual assault laws hopefully not too late: Mochama

For a long time, our sexual assault laws were out-dated and patriarchal. The effects of that are deep.

The change introduced by Justice Minister Jody Wilson-Raybould on Tuesday may seem like small details, but they are essential to overhaul how sexual assault is treated in the criminal justice system, writes Vicky Mochama.

The Canadian Press

The change introduced by Justice Minister Jody Wilson-Raybould on Tuesday may seem like small details, but they are essential to overhaul how sexual assault is treated in the criminal justice system, writes Vicky Mochama.

The changes to sexual assault laws in the Criminal Code of Canada are remarkable in their scope and long overdue.

On Tuesday, Justice Minister Jody Wilson-Raybould introduced Bill C-51, which updates the Criminal Code. In addition to clearing obsolete and unconstitutional laws from the books, the legislation is a necessary next step in the long quest to protect the rights and liberties of sexual assault complainants.

It revises the “rape shield” law, which protects complainants from being questioned about their prior sexual history, to include communications of a sexual nature.

Assault cases, including the case against Jian Ghomeshi, increasingly include text and social media messages. This can unfairly malign a complainant’s credibility and feed, if a judge isn’t paying attention, the myth that sexual assault victims are untrustworthy.

The bill also codifies the Supreme Court’s understanding of consent: an unconscious person cannot give consent and when given it must ongoing.

Along with these two necessary amendments, the bill entitles complainants to be informed that they have a right to legal representation and creates a special procedure for how and when the defence can enter a complainant’s records into evidence.

These may seem like details but they are essential to a necessary overhaul of how sexual assault is treated in the criminal justice system.

The Canadian government started taking sexual assault laws seriously in the ‘70s. The “rape shield” provisions substantially changed the landscape in 1992. In the meantime, feminists have fought for police, lawyers and judges to adapt.

For a long time, Canada’s sexual assault legislation was out-dated and patriarchal. The effects are deep.

In Carnal Crimes, legal scholar Constance Backhouse retells the story of nine sexual assault cases starting from 1900 and ending in 1975. Over a century from some of them, many sound like ones you’d hear today.

The few women who pursued court cases from around the turn of the century faced daunting challenges, from disbelieving police to party girl stereotypes to male group behaviour to assumptions about race and class from both perpetrators and Crown lawyers.

The damage by society and by the law, however, was done. The vast majority of sexual assault still goes unreported.

The federal government’s announcement empowers victims and their advocates.

From the acquittal of Jian Ghomeshi to the Halifax judge who claimed, “a drunk can consent,” the outlook has been bleak lately for sexual assault complainants.

So though the bill’s changes to sexual assault law chips away at many century’s-worth of harm done, especially to racialized and Indigenous women, I just hope it’s not too late.

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