Janine Benedet

Sexual assault is a serious and prevalent crime in Canada, and the legal responses addressing this phenomenon represent a failure to truly understand its causes and harms. From the justice system’s first interactions with those affected by sexual assault to the highest levels of appeal, the legal system has shown an inability to conceptualise this offence as a systemic issue of oppression that is deeply connected to equality rights. This failure is well-illustrated in the sentencing decisions resulting from these cases: they are unpredictable, often justified using a variety of rape myths that diminish the effects of the crime, and encourage society to view sexual assault as a far less serious offence than it truly is. The academic literature on this topic, however, is sparse. This thesis fills part of that gap by exploring the use of aggravating and mitigating factors in sexual assault cases through a feminist lens. These factors prompt the courts to either increase or decrease sentences. They are meant to humanise and contextualise the sentencing process; however, their use is negatively influenced by rape myths and stereotypical assumptions about gender and the crime of sexual assault. In order to demonstrate the validity of this claim, a case law survey was prepared to qualitatively investigate contemporary jurisprudence from Ontario. The results of this research showed that aggravating factors were not consistently used when relevant, and often applied in a manner that minimised the harms suffered by the complainant. Mitigating factors, on the other hand, were used to disproportionately favour the offender by justifying or excusing his criminal behaviour. While some decisions showed that aggravating and mitigating factors can be used in a manner that challenges systemic issues of gender discrimination, this capacity for progressive change was largely ignored.

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Sexual violence is characterized by inequality: it is a gendered crime whose perpetrators frequently escape criminal responsibility. The inequality of sexual violence has been masked and perpetuated by rape myths about ‘real’ sexual assault embedded in the law. Feminist reformers have struggled to have the law eliminate rape myths and recognize sexual offences as gendered violence; this struggle continues. In this thesis the author explores the judicial expression of rape myths in a sample of recent B.C. sentencing decisions. She analyzes two aspects of the cases, doctrine and discourse, to ascertain whether judges reproduced discriminatory beliefs about sexual violence in their interpretations of law or their narratives. The thesis found that courts expressed rape myths in some recent sentencing cases. Rape myths appeared in constructions of violence that turned on penetration, the notion of the dangerous stranger, and definitions of violence that excluded coercion, manipulation, and exploitation. They also appeared when judges used terms that were more appropriate for narratives of sex or romance than sexual violence. Rape myths underpinned courts’ use of sexual history evidence, findings that survivors ‘consented’ to offences, and failures to seriously consider harm to ‘risky’ survivors. They also propped up the doctrines that ‘good’ offenders and intoxicated offenders are less blameworthy or dangerous, and informed language that obscured offender agency and responsibility, including the frequent use of terms that expressed doubt about legal findings of guilt. The author speculates the enduring influence of rape myths appeared not because of judges’ intention to discriminate but the neoliberal approach that guides legal thinking. Informed by notions of rationality and risk, courts ignored the inequality of sexual violence, particularly gender inequality. With inequality and vulnerability erased from consideration, the line between consensual sex and violence blurred, most conspicuously in sexual offences against adolescents and women perceived as taking undue risks. Therefore, this thesis suggests that the law should be cognizant of the unequal and gendered nature of sexual violence by situating it in its social context, an approach that will ultimately help to promote equality within the law.

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This thesis problematizes the use of feminist intersectionality theory within the context of the restorative justice social movement as applied in cases of violence against women in culturally heterogeneous settings. I argue that there is an imbalanced anti-essentialist tendency in some intersectional approaches to restorative justice (RJ) and domestic violence that slides toward gender underestimation, ultimately, leading to a phenomenon defined by feminist scholar Kimberlé Crenshaw: intersectional disempowerment. This position threatens the epistemological and critical stances of that feminist analytical tool for understanding racialized women’s needs for security, offender accountability and empowerment at an individual level in situations of domestic violence. In addition, the existence of competing analytical categories in intersectional analysis and multicultural drives obscure pre-existing patriarchal relations in Indigenous communities applying RJ as remedial justice, i.e., intra-group gender inequality and allows co-optation of the intersectionality theory by ethnocultural non-emancipatory political interests. This poses potential detrimental consequences to racialized women dealing with some RJ interventions like alienation, exclusion and the silencing of victims' individual histories, reinforcing the fact that the representation of the individual female victim within the RJ movement has not been adequately resolved and remains deeply problematic. To illustrate my arguments, I focus on sentencing circles that are used ostensibly as state-sanctioned alternative criminal justice responses designed to ameliorate the systemic racism and over-incarceration rates that Aboriginal peoples experience in postcolonial jurisdictions such as Canada and Australia. I argue that these restorative-like experience are especially vulnerable to intersectional disempowerment. In these RJ models, it becomes unclear whether intersectional approaches can sustain the particular needs and interests of victimized women.

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In this thesis I examine the efficacy of the three major governmentally supported systems that address gender inequalities in the labour market in Canada, i.e. the pay equity system, the maternity and parental benefits system within the employment insurance system and the minimum wage system. I compare these systems to alternative concepts like a living wage and a basic income which are the most commonly discussed options for resolving gender inequalities in the labour market. I conclude that all the reviewed systems fail to provide women equal access on the labour market and that the main cause for this is their role as mothers. In order to stop this erosion of the labour market position I propose to encourage women to maximally engage in the labour market as early as possible after giving birth. An important step toward this goal might be achieved with a governmentally funded and regulated childcare service which is free of charge for everybody who is working.

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