Marital rape myths have no place in Canadian law

Posted
October 30, 2017
Article Source
The Globe and Mail

From a Globe and Mail opinion piece: Since 1983, it has been a crime in Canada to sexually assault one's spouse. Yet marital rape too often remains effectively decriminalized, as shown in a recent Ontario decision. In R. v. H.E., an Ottawa man was acquitted of sexually assaulting his wife. Justice Robert J. Smith found that "the accused probably had sex with his wife on many occasions without her specific consent, as both he and she believed that he had the right to do so." With respect to the incident that led to criminal charges, however, the complainant testified she had told the accused to stop several times, and the judge found her to be credible. It is difficult to see how the accused could have honestly believed that his wife was consenting in these circumstances. It appears the accused was acquitted because he did not understand the law of consent, despite the fact that ignorance of the law is no defence.

Many of the myths that were used to justify the historical immunity for marital rape continue to pervade the prosecution of these kinds of cases. Marital rape myths include the beliefs that women live in a state of continuous consent to sexual activity within spousal relationships, that women cannot credibly claim rape if they have had consensual sex with their partner following the assault, and that women may fabricate stories of spousal sexual assault to gain an upper hand in custody and access disputes. These myths have been denounced as the product of a time when women were the property of men, and have no place in a society where we constitutionally protect women's rights to equality, security of the person and sexual autonomy.

Justice Smith seems to have relied on several marital rape myths in his judgment. He noted that the complainant "did not make any complaint until the parties had a dispute involving access," thereby adopting the myth that women may cry rape to bolster their position in family-law disputes. This myth fails to account for the fact that the law was changed in 1983, such that we no longer require women to "raise a hue and cry" immediately following a sexual assault. It also fails to acknowledge that women may be in relationships of dependency with their spouses, often making it unsafe to complain about sexual violence until they separate. Women's dependency on their partners also refutes another myth that Justice Smith seemed to rely on, evident in his comment that the complainant "continued to have sex with the accused" following the alleged incident in 2002 for "a period of approximately 11 years." The myth that women cannot be believed if they have had consensual sex with the accused following the alleged sexual assault also belies Canada's definition of consent, which is specific to each incident of sexual activity.

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