Public Safety Minister Vic Toews wants to bring back rape as a separate crime.
Rape was taken out of the Criminal Code in 1983 and put inside a broader term, sexual assault, which also includes a wide variety of sexual offences from the most minor to the most severe.
The change was intended to help victims maintain a greater measure of dignity by eliminating the stigma attached to the term “a raped woman.”
The 1983 change also made it easier to convict rapists because it eliminated the previous onerous requirement of having to define rape in technical terms.
Until then, rape had been defined as penetration of a woman with a penis. That meant that in order to secure a rape conviction, penetration had to be proven in court, sometimes even in terms of inches. In some cases, the duration of the assault also had to be defined in precise minutes.
It was often difficult, technical, and humiliating both for the lawyers and judges, as well as for victims. Rapists often walked as a result.
At the same time, rather than having to give that kind of testimony, many victims chose not to report rape. In addition, some rapists were able to prove they were sexually impotent and couldn’t physically penetrate a woman.
Society breathed a sigh of relief when rape became part of sexual assault, which covers everything from acts as minor as pinching a woman on the backside on the subway to the most violent and horrific sexual crimes imaginable.
Everybody agreed it was the way to go - the courts, judges, lawyers, police, social workers, jurists, and law professors.
But Toews says we should “call a rape a rape” and wants to reopen the debate. He told a recent Senate committee hearing that eliminating rape as a crime was “perhaps the biggest mistake in criminal law that the Parliament of Canada has ever made.”
Hello? The biggest mistake? Which law school did Toews go to? (Actually, it was the University of Manitoba, and Justice Marshall Rothstein was his teacher.)
Does Toews realize what bringing back the “raped woman” syndrome would mean for women?
Oh, but he does! Toews explains: “I understand the desire not to victimize especially women again in the court system, but that’s something that might have to be looked at in the future.”
Great. Now it’s back to the future with Toews.
So where does Prime Minister Stephen Harper find guys like this? “I know why the law was changed,” Toews said, still going strong with no clue about when to stop talking.
Toews noted it was because the courts didn’t want to revictimize women. “And I understand that.”
So why is he doing it? The answer is in ideology and politics.
Toews, like the rest of the Conservative cabinet, wants to crack down on easy pardons for prisoners, making them more difficult to obtain and impossible in some cases, such as for murder convictions and other serious crimes.
Toews says there’ll be no more pardons for rapists. It’s a guaranteed vote-getter in the “penal-right” chorus that supports the Conservative party.
But Toews and his buddies in cabinet noticed only after they announced their recent crackdown on pardons that they can’t include rape among unpardonable crimes because rape is defined as sexual assault. That would mean making all sexual assaults an unpardonable crime.
Toews isn’t bringing back rape because he loves women less but because he hates pardons going to rapists more. Because the definition of sexual assault is so encompassing, the government sees itself forced to leave sexual assault off of its list of “unpardonable” crimes for the time being.
But Toews admits he’s having trouble. “The whole concept now of rape and minor sexual assaults, if I can use that term, has been all wrapped up in one bundle, and it’s very confusing,” he said.
Toews should have consulted a good lawyer beforehand.
Richard Cleroux is a freelance reporter and columnist on Parliament Hill. His e-mail address is richard
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