Succumbing to the siren song : rape myths in sexual offender sentencing in B.C.
University of British Columbia
Master of Laws - LLM
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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