Rape Versus Sexual Assault

Canada - from Government of Canada website
Canada – from Government of Canada website

Believe it or not rape doesn’t happen in Canada.

Definitions

How do you define rape? Originally in Canada rape was defined as ‘forcible intercourse’ only, under which definition the Steubenville defendants could not have been charged with assaulting Jane Doe.

There were other problems with the original law. Forcible anal intercourse wouldn’t have been chargeable as rape, only as assault. There were conflicts between the right of the accused to be considered innocent until conviction, and the right of the victim not to be re-victimized in court.

In Canada the response was, in 1982, to remove Rape from the Criminal Code as an offense, and replace it with the term Sexual Assault. At the same time the code was changed so that affirmative consent was required.

In Ohio they still use the term Rape, instead of Sexual Assault.

Is this important? That’s a good question. Some of the kids at the Steubenville party said they didn’t realize what was happening was rape. Would they have realized it was sexual assault? That’s something we’ll never know.

The Law, The Lawyers, and Juvenile Court

Curiously the Ohio law and the Canadian law are a lot alike. The only major difference is that Canadian law spells out a requirement for affirmative consent, and Ohio law doesn’t, though a reading of the Ohio law makes it clear that consent is required.

It is a minor difference, but it could make a huge difference to how both law enforcement, and the citizens understand the law, and their responsibilities. I’m using Canada as a comparison because I know Canadian law, you could quite easily compare Ohio law to California, or Texas. There will be differences, and those differences will play out in how crime is handled by the criminal justice system, and how the public view the crime.

So why did the lawyers try to argue that Jane Doe had consented?

Because that’s their job. Lawyers are hired to protect their clients. It doesn’t matter who the client is, the lawyer is responsible to that client. That is a requirement of the law too.

While I don’t think that the lawyers did their clients any favours with the defence that they attempted, they did what they were hired for. They failed because in the end, their client’s actions were indefensible.

There were a lot of complaints about the case being tried in juvenile court. Juvenile court exists to protect juveniles. Juveniles brains aren’t fully formed.

I knew kids in High School who were total and utter jerks. Sometime between when they hit seventeen and when they hit nineteen they grew up. Fast. Literally overnight.

Do you want to imprison someone for fifty years, when in three or four years they will be a totally different person?

How many times have you sat down with friends from high school talking about the ‘good old days’, and one of the other of you said, something like, ‘We were idiots.‘ Because you were. Which is why the guy a couple of years older than you, who used to be the life of the party, got married and didn’t want to go out all the time anymore. He’d grown up. You joined him a couple of years later.

Kids do grow up. There’s a really good chance that neither of the two kids convicted in this case will ever commit another serious crime, ever again. They will mature, and their mature brain won’t let them do stupid things like they did on August 12, 2012.

How much good does it do society to lock someone up who once they mature, isn’t likely to commit another crime?

Admittedly we can’t know that they will mature. Some people don’t. Jeffrey Dahmer didn’t mature. He got worse. Wikipedia has an excellent article on Juvenile Crime, I recommend reading it, it covers the difference between the Dahmer type offender, and the more normal juvenile who does stupid things, and ‘grows out of that type of behaviour.’

Simple Answers Work Only For Simple Problems

You need to shingle a roof, the most important tool you’ll need will be a hammer, and the most important raw materials will be roofing nails and shingles. It’s a relatively simple problem.

Criminal Justice isn’t a simple problem. It involves people, and even the simplest person, isn’t simple. People evaluate hundreds of inputs per second for every waking minute of their lives. Every single one of these inputs will have some effect on the person, some lessor, some greater.

How can anyone tell which inputs have had the greatest affect on a person? How can you tell that a specific input had an affect? Most of the time you can’t, unless you were there when the event happened, and it was a major event, say the death of someone important to that person.

That a child was horrified when a butterfly died caught in a spiderweb thirty years ago, and the child’s personality was so badly scarred that they never recovered, you aren’t likely to discover. The person it happened to might not even remember the specific input that caused their problem, or they may remember a modified version of the event. The human mind is an incredibly complex and wonderful thing.

So how is the Criminal Justice system supposed to deal with this person, with this incredibly complex and wonderful mind?

We still don’t know. The Legislature tries to write laws to cover all events. The police attempt to enforce the laws. The courts attempt to adjudicate the laws. All of them suffer a certain amount of success, and a certain amount of failure.

It is easy to scream and complain that the law is wrong, that the police are incompetent, and the courts are inefficient, because all three are true – to a certain extent. None of them are perfect. At the same time none of them are totally wrong either.

Improvements are possible. Public opinion will drive those improvements. At the same time public opinion can be a two edged sword. At the time that women were given the vote, a large portion of the public believed that giving them the vote was a horrible mistake. Today it’s considered normal.

Simple solutions don’t work. Sitting still, and not doing anything is morally reprehensible. Actions is required, but we must remember that a simple one size fits all solution will probably cause more problems then it fixes. Whatever we do,¬†we need to move to ensure that the law protects everyone, while not oppressing everyone.

Regards

Wayne Borean

Monday March 18, 2013

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3 thoughts on “Rape Versus Sexual Assault

  1. Wayne, I hate to say it, but part of your argument is a variation of ‘boys will be boys’. They will grow up. True. However, it is unlikely that ‘just an idiot’ is likely to commit a murder and be excused because he’s young. He knows better. Juvenile court is necessary, but to say that sexual assault is somehow more admissible because the boys in question were boys… is not. We need to teach our ‘young idiots’ that sexual assault is just as unacceptable as grand theft or murder. They were not raised to understand another person’s autonomy is something to both respect and protect, male or female.

    1. That wasn’t the point. I was trying to argue against simplistic solutions to a complex problem, part of which is the tendency to try and push juvenile crimes into adult court irregardless of the circumstances, based only on public outrage.

      How would you re-write it to improve it?

      Wayne

  2. Here’s an interesting article about the changing views on women’s sexual behavior over the years. Part of the problem I was trying to talk through above is attitudinal. There are a lot of people who believe, against all proof, that good, proper, well behaved girls don’t get raped.

    Those of course were the very girls that Paul Bernardo targeted.

    Wayne

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