Exposing Gender Bias in Canada's Legal System
This article discusses sexual violence and may be triggering for some readers. Political Digest uses “survivor” to refer to those who have experienced sexual assault. We acknowledge this term is not universal.
Visual Credit: Tingey Injury Law Firm
Throughout the years, the Canadian judicial system has actively pursued the criminalization and prevention of sexual violence against women. Legislation has been revised and altered to more accurately define sexual assault, and programs have been established to support survivors of violence. However, despite these efforts and the enactment of legislation within the Canadian Criminal Code, female survivors of sexual assault and domestic violence still lack adequate protection within the legal system.
Survivors of sexual assault face multiple barriers in receiving justice for the act committed against them. In turn, women’s testimonies are often discredited, their harm goes unacknowledged, and their cases are dismissed. The credibility of a woman’s testimony in court can be undermined by various factors, but the two that I will discuss surround the nature of sexually abusive relationships and the physical attributes of women that lead to implicit biases. In 2017, a man from Ottawa was acquitted of sexually assaulting his wife. Ontario Superior Court of Justice Judge Robert J. Smith justified his decision by suggesting that “the accused probably had sex with his wife on many occasions without her specific consent, as both he and she believed that he had the right to do so.” This decision was criticized for violating section 19 and 271 of the Canadian Criminal Code, which respectively state that ignorance of the law is not a valid excuse for committing an offence and define sexual assault as any act that interferes with an individual’s sexual integrity. Despite the wife’s testimonies expressing that the incident was non-consensual and that her husband knew this, the Ontario judicial system failed to protect her. This case, R. v. H.E. is only one example of the denial of testimonies from female survivors of domestic abuse and sexual assault in Canadian courts, highlighting the prevalent gender biases within the legal system.
Deborah Epstein and Lisa A. Goodman note that laws intended to protect women often fall short because their narratives are doubted. Women’s testimonies are frequently viewed as less credible than those of their male counterparts due to a deep-rooted system of misogyny with misconceptions about sexual violence. For example, a frequent criticism made towards abuse survivors is that, if they are facing violence, they should leave their partner. This criticism has led multiple judges and officials to doubt the plausibility of female abuse experiences. Moreover, members of the system designed to protect survivors of violence do not understand the dynamics of abusive relationships. Specifically, the coercion, domination and degradation that prevent survivors from leaving. This discounts the experiences of domestic abuse and sexual assault survivors’ continued patterns of abuse by discouraging other survivors from reporting their abusers. Ultimately, the judicial system does more harm than good to female survivors of sexual abuse by discounting their experiences and undermining their credibility.
Even in cases where a woman’s testimony is deemed credible, her trustworthiness in court can be compromised by biases beyond her control. A study from 2021 found that women considered “conventionally attractive” were more likely to be seen as trustworthy when accusing others of sexual assault. This bias stems from preconceived notions that typically feminine women are more susceptible to sexual assault. Such biases not only endanger survivors by potentially discounting their experiences but also extend to factors like race, class, and disability, further skewing perceptions of validity within the legal system.
To address these issues, it is imperative to bring attention to and critique gender bias within the judicial system. Canadian judges must acknowledge their biases and exercise caution before passing judgement on survivors of sexual abuse. Non-survivor judges should strive to understand the complexities of abusive relationships before assuming a woman is dishonest. Ultimately, all members of the legal system must actively work to evaluate and mitigate their biases to ensure fair treatment for all individuals seeking justice.
Erin (she/her) is a second-year student in Politics, Philosophy, and Economics and a Lower Year Intern at Political Digest.