Exploring the role of penetration in sexual offences in Canada
University of British Columbia
Master of Laws - LLM
In 1983, the law of sexual assault in Canada was significantly reformed. Among a number of significant changes, rape was replaced by sexual assault and penetration was not a requirement of any of the sexual assault offences. The purpose of this thesis is to reflect on the role of penetration in Canadian sexual assault law, notwithstanding that it no longer forms part of the definition of sexual offences. In particular, I explore the impact of removing the penetration requirement in Canada, thinking carefully about the consequences of incorporating penetration as a defining element of sexual assault offences. I consider whether penetration is more appropriately considered as a relevant factor in sentencing where judges assess the seriousness of a particular offence. Secondly, through an examination of case law, I investigate judicial narratives about penetration in sentencing decisions, focusing on whether and how judges assess the seriousness of a sexual assault through reference to penetration in sentencing. Ultimately, I argue that while a penetration-centred model reifies gendered and heterosexist assumptions about sexuality, the Canadian approach to penetration challenges these assumptions and helps to dismantle them. Likewise, the Canadian approach is more effective from a fair labelling perspective at communicating the gravity of the wrongfulness of sexual assault to both offenders and complainants. As such, I contend that it is more appropriate for penetration to be considered at sentencing, rather than being part of the definition of sexual offences, as this allows for greater nuance. However, I argue that judges, when considering penetration as an aggravating factor at sentencing, must take care not to use penetration as the sole determinant of severity. The present study indicates that the distinctions based on penetration that were removed from the substantive law in 1983 may be recreated at sentencing. As a consequence, it is possible that current sentencing practices in Canada may reproduce “real rape” narratives that undermine the severity of sexual assaults, particularly those that do not involve penile penetration of the vagina or anus. I contend that penetration should be but one aggravating factor that is considered alongside other potential aggravating and mitigating factors.
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