In practice, the experiences of victims of crime depend not only on the laws and institutions in place, but also on the individuals victims encounter throughout their interaction with the justice system.
From the police officer receiving the complaint to the judge at trial, everyone in the justice system has a part to play. This is reflected in the theme of this year’s National Victims of Crime Awareness Week from April 21–27, which is We All Have a Role.
To illustrate the significance of this theme, this HillNote examines difficulties faced by victims of sexual assault, an offence ranging from sexual touching to what was previously called rape. In particular, it examines factors behind under-reporting and low conviction rates.
According to Statistics Canada’s General Social Survey on victimization for 2009 (GSS), 34 out of every 1,000 women aged 15 and older reported being sexually assaulted in the 12 months prior to the survey. Over the same period, the GSS found 15 in every 1,000 men reported being sexually assaulted.
Significant changes were made to the law of sexual assault and evidentiary rules during the 1980s and 1990s to encourage the reporting of offences and facilitate the testimony of victims during the trial process. These changes included the introduction of section 276 of the Criminal Code, which limited evidence relating to the complainant’s sexual history. Nonetheless, many challenges remain.
GSS data from 2009 showed that 53% of women aged 15 and older who reported being sexually assaulted by their husband or partner in the past 12 months said that the police were notified. This compares with 10% of cases involving non-spouses.
Data indicate that police are more likely to be notified in cases where the violence is of greater severity.
Victims gave various explanations for not seeking police assistance. Some cited shame, fear of reprisals, and fear of not being believed or of being blamed for what happened. Some felt that the situation was not important enough, or that it was a personal matter. Some also felt the police or court system could not or would not do anything.
Rates of “unfounding,” the finding by police that no crime took place, vary significantly across jurisdictions for sexual assault complaints and have been criticized for being unreliable.
Among seven Ontario police forces, 2% to 34% of complaints of sexual assault were considered unfounded. No matter what the percentage, the rates were significantly higher for sexual assaults than for other crimes in the six forces for which comparative data were available.
Studies have shown that victims may be seen as less credible in situations that do not reflect the stereotypical image of sexual assault as a violent act perpetrated by a stranger on a “virtuous” woman who vigorously resisted.
Such situations would include a victim and perpetrator who are in a relationship. They would also include a victim with mental health issues or a disability; who did not resist physically; who had no physical injuries; or who was under the influence of drugs or alcohol.
In some investigative manuals, for example, the criteria to be considered in detecting a false report include a request to speak to a female officer. Missing a curfew or a history of mental health issues is also seen as an indicator of a possible false report. Such factors have been criticized as unreliable means of detecting falsehoods.
Sexual assaults appear to result in fewer charges than other violent offences. The exception is the offence of aggravated sexual assault, the most serious type of sexual assault, but also the rarest.
An American study found that increasing the number of female officers increased the likelihood of reporting and arrests. For its part, the RCMP has committed to a force in which 30% of regular members are women by 2025.
Prosecution and conviction
Despite legislative changes and efforts to better support victims, conviction rates remain lower for sexual assault than for all but one of the other violent crimes tracked in Statistics Canada’s Adult Criminal Court Statistics for 2010–2011.
There are various factors at play, including reliance on myths and stereotypes to discourage the complainant from testifying in court and to attack the credibility of the complainant. Such testimony is generally crucial for the prosecution of a sexual assault case, as there may be no witnesses and little other evidence. Victims may also choose not to continue with the judicial process for various complex reasons.
Though there are limitations and holes in the data on sexual assault, it nonetheless seems clear that the practices of many in the justice system affect the treatment of victims and consequently the rates of reporting, prosecution and conviction for this crime.