On May 21 and 22, Vancouver Rape Relief will intervene in two appeals before the Supreme Court of Canada that raise an important issue for sexual assault survivors whose cases go before the criminal courts. In the first appeal, R v. Degale from Ontario, the survivor was severely injured during the sexual assault by her boyfriend. She did not testify at the trial but there was evidence that she reported the rape to a neighbour, as well as extensive medical evidence from the hospital where she was treated. While the trial judge found the woman did not consent, he acquitted the accused because the prosecution had not proven that the accused knew she did not consent. In the second case, from Alberta, R. v. Bilinski, the woman testified that she expressly told the accused he had to wear a condom, but that he removed it without her knowledge. The judge told the jury that the prosecution had to prove that the man knew or suspected that she did not consent to continuing without one. The jury acquitted him.
In both of these cases, courts have sidelined the provision of the Criminal Code that states that in order for a man to claim he believed a woman was consenting, there must be evidence that he took reasonable steps to determine whether she communicated her voluntary agreement to the sexual activity. Rape Relief is intervening to defend the reasonable steps provision, a provision for which it successfully campaigned in 1992 in coalition with other women’s groups, and to argue that men who do not bother to consider whether their sexual partners are consenting (or whether they are over the age of consent) are at fault and should be held accountable.
Janine Benedet, K.C. and Isabel Grant are legal counsel for Vancouver Rape Relief in these appeals.