Confronting Sexual Assault: A Decade of Legal and Social Change

Robert A. Kominar is a barrister and solicitor and a lecturer in the
Department of Law and Justice at Laurentian University.

The current decade has witnessed a paradigm shift in our
conceptualization of sexual assault. The criminal acts that we used to
call rape, along with other forms of socially unacceptable sexual
contact, have been conceptually reconstructed by the legal system in
ways that emphasize their connection with violent and aggressive
behavior and that disassociate them from acts of love, which accused
often notoriously argued they were. This book of essays takes a detailed
look at this reconstruction process as it has unfolded in Canada
recently.

The book was originally intended as commentary on the 1983 changes to
the Criminal Code, which created the new offences that replaced rape and
indecent assault. However, before it went to print, important
developments in the law came out of the Supreme Court of Canada, which
caused a broadening of the editors’ focus. In 1991 the Court struck a
serious blow to the new approach, in the minds of many of its
proponents, by striking down the provisions of the Criminal Code that
limited the ability of an accused person to question complainants about
their previous sexual history during a trial. Essentially the Supreme
Court returned discretion to trial judges to determine when the use of
such evidence was appropriate.

The essays in the book are interdisciplinary in character, many having
more of a social science perspective than a legal one. This approach is
clearly in keeping with the theme of the reforms being considered. Many
of the selections illustrate well how simplistic our legal system has
been in its attempt to define issues only in terms of the legal
categories created by judges. However, despite the broad
multidisciplinary coverage of the topic that the book achieves, many of
the selections encourage the reader to replace formal legal analysis
with uncritical sociopolitical analysis. This reasoning is prevalent in
many of the sections of the book that discuss the Supreme Court decision
dealing with the so-called rape shield law. The breadth of coverage here
is very good, but the depth of the analysis is in some cases uneven.
Nonetheless, this is an important contribution to Canadian
interdisciplinary legal studies.