Jennifer Koshan and Melanie Randall, law professors at the University of Calgary and Western University, are co-editors of The Right to Say No: Marital Rape and Law Reform in Canada, Ghana, Kenya and Malawi. Elizabeth Sheehy is a professor of law at the University of Ottawa.
Since 1983, it has been a crime in Canada to sexually assault one's spouse. Yet marital rape too often remains effectively decriminalized, as shown in a recent Ontario decision. In R. v. H.E., an Ottawa man was acquitted of sexually assaulting his wife. Justice Robert J. Smith found 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." With respect to the incident that led to criminal charges, however, the complainant testified she had told the accused to stop several times, and the judge found her to be credible. It is difficult to see how the accused could have honestly believed that his wife was consenting in these circumstances. It appears the accused was acquitted because he did not understand the law of consent, despite the fact that ignorance of the law is no defence.
Many of the myths that were used to justify the historical immunity for marital rape continue to pervade the prosecution of these kinds of cases. Marital rape myths include the beliefs that women live in a state of continuous consent to sexual activity within spousal relationships, that women cannot credibly claim rape if they have had consensual sex with their partner following the assault, and that women may fabricate stories of spousal sexual assault to gain an upper hand in custody and access disputes. These myths have been denounced as the product of a time when women were the property of men, and have no place in a society where we constitutionally protect women's rights to equality, security of the person and sexual autonomy.
Justice Smith seems to have relied on several marital rape myths in his judgment. He noted that the complainant "did not make any complaint until the parties had a dispute involving access," thereby adopting the myth that women may cry rape to bolster their position in family-law disputes. This myth fails to account for the fact that the law was changed in 1983, such that we no longer require women to "raise a hue and cry" immediately following a sexual assault. It also fails to acknowledge that women may be in relationships of dependency with their spouses, often making it unsafe to complain about sexual violence until they separate. Women's dependency on their partners also refutes another myth that Justice Smith seemed to rely on, evident in his comment that the complainant "continued to have sex with the accused" following the alleged incident in 2002 for "a period of approximately 11 years." The myth that women cannot be believed if they have had consensual sex with the accused following the alleged sexual assault also belies Canada's definition of consent, which is specific to each incident of sexual activity.
In addition, Justice Smith noted that the parties were Palestinian and in an arranged marriage, and that the wife seemed to believe in her husband's right to sexual access as much as he did. However, cultural norms cannot overtake legal norms, and women such as this complainant are entitled to the benefit of the same criminal law as are other women in Canada.
Justice Smith's statement that "marriage is not a shield for sexual assault" therefore rings hollow in light of his actual decision. If this statement is to have any meaning, judicial education on sexual assault must include material on marital rape myths, why they are false and why they violate women's human rights. Let us hope a Crown appeal will set the record straight for others who labour under these mistaken beliefs – be they judges, other legal professionals or spouses.