The return of rape as a distinct crime?
Conservative Rob Anders, a Calgary MP, is proposing to have the word “rape” entrenched into the criminal code and enforce a tough mandatory minimum sentence for those convicted of the crime. Anders and some feminists believe that sexual assault is an ambiguous term and does not fully capture the severity and brutal nature of the crime. Mr. Anders said that a return to the more traditional terminology will do justice to the term and is planning to propose the bill in a private member’s bill during the next legislative session.
Anders argues that the term “sexual assault” in Canada’s legal system and in the Criminal Code can be historically traced back to the 1980s, where feminists campaigned for the term because they believed that those who committed sexual assault would get the same type of penalties as rapists. This rationale, Anders argues, paradoxically had an adverse effect as judges’ start handing lighter sentences to rapists. This happened, the Calgary MP argued, because those committing sexual assault, such as groping, and those committing rape, were lumped together and put in the same legal category. Mr. Anders said he’d push to create harsher penalties for those convicted; 8 years for the first offense and 10 years for the second offense.
Parliament removed “rape” from the Criminal Code in an attempt to reform the way the law dealt with violence against women as a varying degree of severity of sexual assault took its place. Proponents of this legal change argued that they would empower and allow prosecutors to pursue a wider range of sexual violence against women. The call to revive the now-defunct rape charge has gained traction in some circles and revitalized the discourse on how the legal system has perhaps not been able to deal distinguish sexual assault cases and has failed to harshly punish serious offenders.
Edward Prutschi, a Legal Analyst for News Talk 1010 and partner at Adler Bytensky Prutschi Shikhman, discussed this firestorm set off by the Calgary MP about legally bringing back the term “rape.” Mr. Prutschi says that the oft-mentioned argument that sexual assault is not tantamount to rape and tries to diminish the seriousness of the crime is untrue. Often times, in police reports or in the courtroom, the seriousness of the sexual assault is highlighted and emphasized by the Crown and authorities. To bring back “rape” as a term, on this ground, is not without difficulties.
Mr. Prutschi emphasizes that the rationale for a global term of sexual assault is also problematic. As a defense lawyer, when a client is charged with sexual assault, such as inappropriate touching, the severity of the crime may be exaggerated in court because all types of sexual assault, including the most severe cases, are clustered and lumped together. While sexual assault is a serious crime, within it, there are different degrees and all sexual assault charges should not be treated the same way. Furthermore, there is nothing preventing the prosecutors and police from emphasizing the seriousness of a sexual assault charge, and all cases ought to be treated differently.