This publication describes how the current legal doctrine "discounts" the seriousness of male sexual violence against women and children.
An empirical perspective is presented illustrating the application of the principles and methods of community psychology for conceptualizing the ideal of "social justice." The substantiative content of the paper is based on an analysis of the selective nature of sexual assaults which reach the criminal justice system, and in the disparity of sentences given to those found guilty, in comparison to other types of cases. These outcomes are proposed as operational definitions for conceptualizing the ideal of social justice. The application of this standard for cases of sexual assault suggests the justice system "discounts" the seriousness of these offenses, resulting in a legal doctrine which excuses male violence against women. Implications for law reform are proposed based on the need for an accommodation of the social/psychological concept of "difference" in the legal definition of sexual assault, and in the greater use of evaluation research as a process of legal scholarship for monitoring how well the ideal of social justice is achieved by the criminal justice system.
One purpose of the present paper is to highlight the value of using
a community psychology framework for conceptualizing important social issues
that adversely affect the human condition, and of the responsibility of
psychologists to address these issues through empirical scholarship. The
methodological perspective which follows is based on a research program
that began over a decade ago and now includes three principal data sources:
The first is based on the records of an agency which provides services
for victims of sexual assault. This data, supplemented by two national
victimization surveys (Solicitor General of Canada, 1983, 1984; and Statistics
Canada, 1993), provide the best available description of the true nature
and frequency of incidents of sexual assault. The second source, the court
records, provides a formal account of the outcome of the criminal justice
process. The third data source, comprised of transcripts of court cases,
provides a qualitative reference point that ensures that the quantitative
analyses of the court records are capturing the essential aspects of actual
courtroom dynamics, i.e., that the statistical analysis has ecological
Two of the three methodologies have been previously described in the
literature and will not be re-described in detail here. Briefly, the case
data now includes 2,533 consecutive cases responded to by a sexual assault
service. (For methodological details see Renner & Wackett, 1987; Renner,
Wackett & Ganderton, 1988 for previous reports based on the initial
1,236 cases.) The court record data now includes a run of 1,074 consecutive
court cases tried in the same city, composed of sexual assaults (n=354),
and, for comparative purposes, physical assaults (n=513) and robberies
(n=207). (For methodological details see Yurchesyn, Keith & Renner,
1992; Renner & Yurchesyn, 1994 for previous reports based on the initial
356 cases of the now larger sample.) These two expanded data sources have
been supplemented by a sample of 104 transcripts of 51 adult and 53 child
sexual assault cases from the court records data files. This third data
source was the primary basis of the qualitative propositions to be advanced
and evaluated in this paper.3
These three data sources converge to provide a descriptive account of
how the crime of sexual assault on women and children by men is addressed
by the formal legal doctrines which have been put into place by the criminal
justice system. Our research does not address the frequency or nature of
sexual offenses by women against men or children. Thus, the second purpose
of this paper is to examine how cases of male sexual violence are handled
by the criminal justice system from the perspective of whether the standard
of "social justice" is being met. Social justice is the ideal of seeking
the truth in an effort to provide fair and just outcomes through the criminal
justice process (Renner & Warner, 1981). This "social" goal may be
distinguished from a legal goal of "technical" justice which requires that
uniform standards and procedures be used (Warner & Renner, 1981). The
former represents the "ends" and the latter the "means" of the justice
system. It is not enough that laws, procedures, and doctrines are uniformly
administered, they must also achieve the purposes for which they were intended.
Ultimately, the actual outcomes are the standards against which the fairness
of laws and legal doctrines must be evaluated.
There are two processes within the justice system that may actually
work against achieving social justice; these are selectivity and disparity.
Consideration of both is essential in order to evaluate how closely the
justice system approaches the ideal of social justice. Both will be described
in general terms and then illustrated by the specific way they manifest
themselves in cases of sexual assault.
The former Law Reform Commission of Canada (1976) wrote in the initial
statement of its objectives that although it is equally unlawful for a
rich man as a poor man to sleep under a bridge at night, the burden of
the law falls differentially on the poor. When the impact of a uniform
application of a law guarantees that sanctions for breaking the law fall
selectively on members of a particular social class, such as the poor,
the uniform application of the law itself becomes a source of injustice.
As two national studies have shown, selectivity also operates in cases
of sexual assault. The Statistics Canada Victimization Survey (1993) found
that more than one in three adult women have been sexually assaulted since
the age of 16, and that 94% of these cases never come to the attention
of the criminal justice system; of the 6% that are reported to authorities,
only 40% are charged; of those charged, two-thirds are convicted, and one-half
of those are never incarcerated. These figures are based on extensive interviews
with 12,300 women over 18 years of age. An earlier study by the Solicitor
General of Canada (1983, 1984) also found that sexual assaults often go
unreported to the police. These findings of a high incidence rate and a
low official count in the criminal justice system are remarkable, because
identification of the perpetrator is seldom an issue in sexual assault
cases, as it is in most other common crimes, such as break and enter, robbery,
and theft. Individuals who commit acts of sexual assault are usually known
by their victims (Roberts & Grossman, 1994). Further, the 2% of the
cases which go to trial, and the less than 1% who are sent to jail, are
a highly selected group. Within this group, cases with violence and injury
are over-represented, while cases involving the use of simple physical
force by dates and acquaintances are vastly under-represented (Yurchesyn,
et al., 1992).
One implication of this selectivity is a misrepresentation of the true
nature of sexual assault. This, in turn, contributes to the popularly held
misconception that sexual assaults must necessarily include violence and
physical harm to the victim. These expectations, along with other myths
and stereotypes about what constitutes a legitimate sexual assault, such
as the belief that only a recent complaints is credible, contributes to
the self-blame, lack of support, low reporting, and low conviction rates
experienced by most victims (Renner, et al., 1988; Solicitor General of
Canada, 1984). Not surprisingly, cases which lack injury and violence often
fail to come to the immediate attention of medical and law enforcement
agencies. At issue is whether the selectivity which takes place between
official criminal justice records of sexual assault, and the actual experiences
of victims of sexual assault, is fair, or whether it is a source of injustice.
Disparity refers to the differential ways cases are treated once they
are selected into the criminal justice system. The concept of fairness
in the justice system requires that there should be equality, not disparity,
in the way similar cases are treated.
The fundamental assumption of the justice system is that punishment
should be proportional to the seriousness of the offense, with seriousness
defined by the harm done and the need for protection of the public against
future acts (Canadian Sentencing Commission, 1987). However, to hold equality
as the ideal for sentencing does not imply that there should be simple
uniformity in sentencing. Uniformity itself can be a source of injustice,
as already illustrated by the uniform application of a law against sleeping
under a bridge. A similar situation arises with sentencing. A situation
in which a destitute parent steals a bottle of pills for a sick child is
not regarded as equally harmful or dangerous as a long-time addict stealing
the same bottle of pills on which to get high (Canadian Sentencing Commission,
When comparing the outcome of cases, there is relatively little variance
associated with the verdict. Most cases which come to trial are found guilty
simply because cases with a low probability of conviction never come to
trial (Warner & Renner, 1981). Thus, it is the severity of the sentence
given to those deemed to be guilty where there is the most room for judicial
discretion and where the degree of disparity across cases is greatest (Roberts,
1990a). It is this disparity which requires analysis and critical examination.
In Canada, the task is made more difficult since sentencing statistics
are not compiled at the national level (Department of Justice, 1990), although
sentencing data on sexual assaults from specific locations have been collected.
Various disparities in sentencing arise in cases of sexual assault (Roberts,
1990a; Renner & Yurchesyn, 1994). Individuals convicted of sexual assault
receive less severe sentences than those who commit robbery, but more severe
sentences than those convicted of physically assaulting someone. Perpetrators
of sexual abuse against children are punished less severely than are those
found guilty of sexual assault against an adult. These forms of disparity,
based on explicit comparisons with other types of offenses have led to
popular criticisms of the sentencing process, often by women's advocacy
groups and the media (e.g., "Judge gives rapist 90-day sentence served
on weekends", Roberts, 1990a). At issue for this paper is whether the disparities
in the sentencing of sexual assault cases are fair, or are themselves a
source of injustice.
Justice as an Ideal
Thus, social justice is a complex social concept. There must be a rationale
to account for any selectivity or disparity that exists. The rationale
must elucidate how a greater level (i.e., higher order) of fairness and
justice is achieved through the selectivity or the disparity. These rationales
rest on social values and social philosophy which, as social concepts,
must gain credibility through their application in actual cases. In operational
terms, it is the outcome of court cases which provides the empirical data
for evaluating whether the observable irregularities of selectivity and
disparity have coherence and serve the end of greater justice.
It is in this sense that every criminal justice case is also a "social
experiment" which tests the veracity of the justice process. An analysis
of these cases can enhance our collective civic life by factually illustrating
how our existing concepts of social justice are applied, and by identifying
the limitations which still require refinement. Applying the standard of
social justice as a research process is an undertaking for which the methodology
of evaluation research from community psychology is well suited. The fact
that laws and legal precedents are the tools of justice, not the justice
itself, puts the issue of accountability just as much in the area of empirical
evaluation of outcomes as in jurisprudence or case law. The creation of
our three data sources provides the basis for an empirical evaluation of
social justice as an ideal.
The analysis of these three data sources provides the basis for examining
"selectivity" and "disparity" with respect to sexual assault. The purpose
of this descriptive statistical analysis is to develop a standard of accountability
through evaluation research for determining the degree to which the ideal
of social justice is approached. From a conceptual perspective, any actual
short fall from the ideal provides a quantitative foundation on which to
base subsequent law reform. The evolution of democratic civic progress
depends on a continual process of evaluation, and of re-definition and
The 2,533 case records from the crisis centre were compared to the 354
sexua1 assault cases from the court records. The findings show that the
cases of sexual assault which get into the criminal justice system are
highly selected, but on different dimensions for adults and children. Specifically:
In adult cases, those with violence and injury are disproportionately
selected into the criminal justice process. According to the records of
the crisis centre, the typical offender is a known acquaintance, and 92%
of the time the assault involves the use of physical restraint without
a weapon. In these instances, women submit to the physical force and the
demand for sex, choosing not to be otherwise harmed or injured. However,
in the cases which appeared before the courts, the opposite was true; only
18% of the cases were similar to the typical case from the sexual assault
service in which there was neither injury, the use of a weapon, nor serious
harm. In 82% of the court cases at least one of these features was present.
Clearly, the "typical" incident of sexual assault does not receive an equal
frequency of legal redress.
In cases of sexual abuse against children, the records of the sexual
assault service indicate that 77% of the abuse is perpetrated by a family
member and that in 80% of the cases the abuse takes place in the child's
own home. Yet, in the court cases, it is abuse by strangers (5%) and acquaintances
such as family friends and caretakers (58%) which disproportionately find
their way into the criminal process, with the most frequent location outside
the victim's own home (64%).
Only the cases officially reported receive media coverage. For child
cases, this has the effect of minimizing public awareness of the overwhelming
degree to which children are mostly at risk for sexual abuse in their own
home by their own family members. For adult cases, it has the effect of
contributing to the myth that a "real" sexual assault is one that involves
violence and injury to the victim. As a result, many adult women who choose
not to resist in order to avoid injury in a sexual assault feel self-blame
and guilt, and are blamed by others (Renner, et al., 1988).
Disparities Between Sexual Assaults and Other Offenses
The sentencing data from the expanded court records data file provides
a common denominator for the comparison of different types of cases. As
noted earlier, in the absence of national sentencing statistics (Department
of Justice, 1990; Roberts & Grossman, 1994) this data represents essential
new information not otherwise available. Presumably, it is the unique features
of the cases which provide the rationale for the differences in sentence.
Embedded within sentencing variations are the implicit values and assumptions
of the system.4 A comparison between the cases of sexual abuse
against children and sexual assault of adults show wide variation within
each, between the two, and with other types of offenses.
Variations Between Adult Sexual Assault and Child Sexual Abuse. Men
convicted of sexual abuse against children receive lighter sentences than
men convicted of sexual assault against adult women. At the harsh end of
the severity scale, only 13% of child offenders received a sentence of
2 years or more in contrast to 30% of offenders of sexual assault against
an adult woman. At the lenient end of the scale, 61% of those convicted
of child sexual abuse received less than one year in jail compared to 44%
of those convicted for adult sexual assault; an equal proportion of perpetrators
in adult and child cases (26%) received a sentence from 1 to 2 years. In
order to evaluate these discrepancies it is necessary to examine three
categories in which there were differences between child and adult cases
(see Table 1):
(1) The circumstances of the case. When the victim is a child there
is far less violence, less often the use of a weapon, seldom any physical
injury, the sexual contact is less intrusive, the child offers less resistance
than adults, and alcohol is less likely to be a factor at the time of the
(2) The legal process. In child cases, the accused pleads guilty more
often, there is less medical evidence, fewer crown witnesses, fewer court
exhibits, and there is less likely to be supporting police testimony at
(3) The characteristics of the offender. In contrast to sexual assaults against women, in the child cases the accused is older, less likely to have a criminal record, more likely to be married, less likely to have a history of substance abuse, and in addition, the offender is more likely a family member or a well known person rather than a casual acquaintance or stranger.
All of the factors in these three categories influence the way the courts
punish offenders in sexual assault cases. The implicit set of values appears
to be that upstanding individuals, without a previous record, with no visible
external physical harm to a victim, are not treated as harshly by the courts.
Cases with these characteristics are most likely to involve child sexual
abuse, thus accounting for the less severe sentences given in those cases.
The standard of social justice requires that these observed disparities
in the severity of the sentence between the two categories of sexual assaults
must be consistent with the achievement of a greater degree of fairness
in the legal treatment of sexual assault cases.
Variations Within Child Cases. The qualitative analysis of the
court transcripts contributed greatly to our understanding of why child
cases were characterized by higher levels of guilty pleas and light sentences
relative to adult sexual assaults. The propositions drawn from the qualitative
analysis must be considered tentative, as quantitative confirmation of
our conclusions will require a larger sample of cases than were available
to us. The statistics available from the court records, however, are consistent
with our observations. The cases of child sexual abuse fall into three
categories, each with a unique set of dynamics.
In cases where there is corroborative evidence from other sources, especially
with young children, plea bargaining takes place; the accused changes his
plea from not guilty to guilty before the trial. In these cases there is
little publicity, the child does not have to testify, and the accused is
given a light sentence, often with an agreement that he will seek treatment.
However, when the child is young and the circumstances are less clear,
the case usually goes to trial and the child is portrayed on the witness
stand by the defence as an unreliable witness due to the age of the child.
The most common tactic for discrediting the testimony of young children
is to ask questions about dates, times, places, and frequency which exceeds
the developmental level of the child (Park & Renner, 1997). Young children
simply have not yet developed the cognitive capacity to recall and describe
events using numerical concepts requiring a ratio measurement scale (Levin
& Simon, 1986). When discrepancies are elicited with testimony given
months earlier to the police or at the preliminary hearing, the defence
ends the line of cross examination with some variation of: "You said before
he had you put your mouth on his penis 5, not 25 times! Did you lie then,
or are you lying now?" The argument is then made by the defence that the
child is an unreliable witness and can not be believed beyond a reasonable
This is a formal courtroom tactic known as "impeachment," and we observed
it repeatedly in the transcripts despite the fact that the questions asked
of the child are developmentally inappropriate. Modern psychological research
show that the memory process matures early and young children are able
to retain accurate memories of characters and events. Therefore, young
children posses the skills needed to describe events, especially when asked
simple question in a supportive atmosphere that correspond to the child's
developmental level (Fivush & Hammond, 1990; Flin, Boon, Knox &
Bull, 1992; Hammond & Fivush, 1991; Peterson, 1996).
Finally, when the witness (i.e., victim) is a teenager with a "bad"
conduct report, the case will almost always go to trial and the defence
tactic is a direct attack on the character of the victim, such as: "So
you lied to your parents about where you were going that night! Isn't that
a fact?" The implication is that if the a 15-year old lied then, they may
also be lying about the alleged assault (as an excuse for being late).
In this particular example, the line of questioning was effective, and
the additional fact that a considerably older man drove a girl less than
half his age to an isolated location was largely ignored. The defence contented
that the accused had consent, reasonably believed the girl was over 16
years of age, and that she is a demonstrated liar whose testimony is not
to be trusted.
The pervasiveness of the notion that resistance and injury are mandatory
components of sexual assault, even in cases of child abuse, is evidenced
in the transcripts by the fact that both the crown and the defence use
the presence or absence of these factors to argue their case. In the transcripts
of the child abuse cases, 77% of the children were asked questions about
resistance, and 89% questions about recency of complaint (even though recency
is no longer a legal requirement as it once was for adult women under the
old rape laws). The reasoning behind asking such questions is to be able
to suggest to the judge or jury that if there had been sexual activity,
surely a good child would have resisted or reported. And, 94% were interrogated
about their character as a way to cast doubt on the credibility of their
testimony (even young children are not exempt from these questions in such
forms as "You don't get along with you brother, do you?"). These tactics
take place despite the fact that it is the legal responsibility of an adult
not to have sexual contact with children, no matter what the circumstance.
These standard courtroom procedures have the paradoxical effect of treating
a child as responsible for her sexuality, but as incapable of giving responsible
testimony due to age or character.
Variations Within Adult Cases. For adult sexual assault cases,
high levels of violence are related to both trial outcome and to the severity
of sentence. When verbal threat or physical force alone is used there is
a 50% rate of conviction, and 8% of those convicted will receive sentences
of two years or more. In those cases where injury occurs or a weapon is
used the conviction rate increases to 66% and 35% receive sentences of
two years or more. These figures increase to 92% and 40% when the woman's
life was endangered or serious harm resulted. Thus, the same factors which
select adult sexual assault cases into the criminal justice system in the
first place act further to increase the probability of conviction and the
severity of punishment. Physical violence is the primary factor which determines
the severity with which the court treats adult sexual assaults.
Variations Between Sexual Assault and Other Offenses. Perpetrators of sexual assault against adults are generally sentenced less severely than are those convicted of robbery, even though in both types of cases there are similar amounts of violence and victim injury. Yet, offenders guilty of sexual assault of adults are generally sentenced more severely than are those of guilty of physical assault, despite the fact than in the physical assault cases there is greater incidence of violence, more victim injury, and more frequent use of weapons. Thus, the disparities in sentencing between the three types of offenses are not accounted for simply by the violence dimension. Three additional factors must be considered: The characteristics of the offender, the relationship between the victim and the offender, and the sex of the victim (see Table 2).
In robbery cases, unlike both sexual and physical assaults, the offender
is often young, single, unemployed and has a previous criminal record.
Robbery is an economic crime and seldom is there a previous relationship
between the victim and the offender. Thus, robberies are treated as the
most serious because of the characteristics of the offense (it is seen
as harmful), the offender (who is seen as of bad character) and the lack
of a relationship (the victim did not precipitate the event). Physical
assaults are not treated as seriously because the typical offender has
more desirable characteristics than robbers, and because a relationship
often exits between the victim and the offender. As a result, the seriousness
of the harm is minimized and both parties are held accountable.
In both physical assault cases and robbery cases the typical victims
are men, however in sexual assault cases the victims are almost exclusively
women. Paradoxically, if a woman acts like a robbery victim (she relinquishes
sex similar to the way a robbery victim relinquishes money to avoid injury)
the court treats her like a physical assault victim (i.e., the relationship
consideration prevails and she is held partially responsible for the assault
similar to the way two males are treated who get into a fight with each
other). But, if the woman resists and is injured and there are acts of
violence (she looks like a physical assault victim), the court treats her
like a robbery victim (the harm consideration prevails) and is harsh with
the offender (see also, Renner & Yurchesyn, 1994).
The standard of social justice requires that the legal doctrine underlying
legislation designed to protect women and children against sexual exploitation
by men actually does so. It would be a failure in social justice if the
doctrine itself was actually contributing to the problem for which it was
intended to be the official recourse. The empirical evaluation of the actual
outcomes of cases of sexual assault suggests that the legal doctrine may,
in fact, be one source of the problem.
In cases of sexual assault, the criterion of "seriousness of the offense"
is operationally defined by legal outcomes. By definition, serious offenses
are those for which the sentence is more severe. Of particular concern
is whether the factors which influence selectivity and sentencing are confounded
with fundamental differences between the intrinsic nature of sexual assault
and the nature of other criminal offenses. At issue is whether selectivity
of cases and the disparity in sentencing are based on these intrinsic differences
and therefore have the unintended side-effects of discounting the nature
of women's and children's experiences to their relative disadvantage in
front of the law.
When a legal procedure is applied in a uniform way, but has a differential
effect on an identifiable group of individuals, such that it provides them
less protection or reduces their access to the legal process, the force
of that sanction is discounted. When a sanction is discounted, the offender
who would otherwise bear the full burden of the legal doctrine has its
impact reduced. In the case of sexual assault this would mean that the
legal doctrines for protecting women and children actually protects, or
to some degree shields, those who commit the assault.
Discounting "Relationship". The law has never taken seriously
male physical assault against another man when the "relationship" between
them is based on masculine domination that arises out of a context of competition,
power and control. Thus, physical assaults, which are predominately between
men, have always been second only to rape (under the old rape laws) as
the least punished offense (Renner & Sahjpaul, 1986, Roberts, 1990b).
In both sexual and physical assault, the issue of relationship is the
central theme. However, there is a fundamental difference between the types
of relationships present in physical and sexual assault situations. There
is considerable social pressure for men and women alike to seek out social
situations where acquaintanceships may be formed. Such is the fundamental
nature of heterosexual relationships and the mating ritual. To discount
the seriousness of a sexual assault when there is such a social "relationship"
between the parties, much as it is done for physical assaults involving
men who are attempting to dominate each other, is to fundamentally distort
the nature of normal heterosexual situations.
Redefining rape as sexual assault, as was done in 1983, applied to sexual
assault a framework common to male relationships that is fundamentally
ill suited for social relationships between men and women. The manly art
of jousting, fighting, and duelling as a way for men to settle matters
has a long tradition of minimal external legal interference. Mild versions
of these activities are not only actually allowed, but even encouraged;
perhaps illustrated best by the role played by the domination of an opponent
in popular sports. The purpose of this paper is not to argue the merits
of minimum legal interference in cases of violence between men who try
to dominate one another in a competitive relationship. Rather, we suggest
that this standard for "acceptable" aggression is simply not applicable
to heterosexual social relationships if social justice is to be served.
Discounting "Harm". Sentences are most severe when serious harm
is done by a stranger to another person. Any robbery that involves needless
injury to the victim or even has the potential to do so by virtue of the
use of a weapon, and any physical assault that inflicts crippling injury,
beyond the victory of establishing domination, is treated harshly by the
courts. In these cases, blood, broken bones and a threat to life is how
harm is translated into severity of sentence (Canadian Sentencing Commission,
As our data shows, these features are not present in most cases of sexual
assault. In cases of sexual abuse against children, the perpetrator is
usually an adult who is abusing authority and care-giving responsibilities
but refrains from violence. And, in cases of sexual assault, injury rarely
occurs because most adult women are not in any position to fight, and are
counselled by the police not to do so, when the outcome is a forgone conclusion.
Usually, it is the man who has the greatest strength and the psychological
capacity to inflict physical harm. Most women and children act like sensible
robbery victims by choosing not be injured in addition to being sexually
violated. Yet, unless a victim of sexual aggression looks like a victim
of physical assault, the severity is discounted as not real harm.
This single narrow standard of harm as physical injury is perhaps appropriate
for some kinds of offenses. But it is simply not a dimension that characterizes
most sexual abuse of children by adults. The harm will be on the sense
of self, by making a sexual being of a child long before the mental, emotional,
and physical elements essential for sexual intimacy have had time to develop.
For adult women, the loss of freedom of movement or confidence in her ability
to make good judgements of when to trust men are extremely harmful. The
clinical literature on the short- and long-term effects of sexual abuse
and sexual assault has long ago made abundantly clear that sexual assault
is no less harmful, and may be far more harmful, than physical injury (e.g.,
Burgess & Holmstrom, 1985; Finkelhor, 1990). These hidden harms simply
can not be seen on an X-ray as in cases of physical assault, but must be
seen in other ways. The actual harm that women and children experience,
although hidden and internal, is no less real; yet, it is discounted by
current standards of sentencing severity.
Discounting "Danger". One of the primary purposes of sentences
is protection of the public. Offenders who are judged dangerous and likely
to re-offend are sent to jail for longer periods of time, reflecting the
philosophy that sentences should be "proportional" to the gravity of the
offense (Canadian Sentencing Commission, 1987). As our data from the court
records makes clear, young "punks," with past records, who have no jobs
are incarcerated at the highest rate. In contrast, people with no records,
who have stable family and social relationships, and are employed are more
often given a second chance by the courts; this same pattern has also been
found for criminal offenses in general (Renner & Warner, 1981; Warner
& Renner, 1981). For these "normal" individuals, the ordeal of coming
to trial is often seen to be sufficient punishment. But, as our data demonstrates,
it is these typical, gentle, ordinary men who date women and protect children
who are committing sexual assault and abuse.
Robberies, thefts, and break and enters are crimes committed by people
who need money. These economic offenses are almost always reported and
eventually there is some chance to catch the offender. Sexual assaults
are seldom reported, and a perpetrator has many opportunities to continue
offending, often over a long period of time. The danger that women and
children experience is discounted; they are far less likely than men to
be robbed, and far more likely to be victimized by the "common" men they
encounter while acting in accordance with expected cultural values of dependency
as children and while pursuing affection, romance and love as adult women.
Sexual Assault and Legal Doctrine
Sexual assault is a unique offense. Its victims are almost exclusively
women and children and the offenders are almost exclusively men. Sexual
assault is the least likely offense other than homicide to be committed
by a stranger; like murder, sexual assault is most frequently perpetrated
by someone acquainted with the victim (Roberts & Grossman, 1992). Thus,
the identity of the sexual offender is seldom in question. Yet, the typical
(i.e., most frequent) cases are selectively screened out of the criminal
justice system at a high rate. The few sexual assault cases that remain
are then processed through the same filter for a second time at the trial
level with clear disparities in sentences for these crimes in contrast
to other offenses. This failure of the system is the result of not defining
"seriousness" independently of the inherent characteristics of the offense.
When the definition of seriousness is confounded with the nature of
the offense, as it is for sexual assaults, the outcome in practice is to
excuse the types of crimes that men commit against women and children.
This does not mean that blatant acts of sexual assault are not punished,
clearly they are. But, the day-to-day practical effects of the legal doctrines
that exist to protect women and children against male aggression operate
to minimize the use of the system for redress, and to minimize the impact
of the process when it is used. Because the legal sanctions for sexual
exploitation are diluted, men are the principal beneficiaries of the legal
doctrines designed to protect women and children against the clear and
common danger of sexual assault.
Fairness is the goal of social justice. A simple concept of "identical"
has long been recognized as insufficient, as illustrated previously by
the implicit inequality in the presumably equally applied law which makes
it unlawful for a rich man or a poor man to sleep under a bridge at night.
Higher order levels of conceptualization, ones that elevate the philosophical
meaning of fairness beyond a narrow "technical" sense, are required to
provide an explicit rationale for when selectivity of cases and disparity
of sentence contribute to greater not lesser justice. Humanistic progress
is distinguished by such conceptual "inventions." As an example, it took
years of conflict between labour and management forces to establish occupational
health and safety standards to embody the higher order concept of "human
rights." Today, it seems obvious that the principle of "not killing yourself
working in order not to starve to death" is a higher order social value
than "management rights." Likewise, with sexual assault, there is a need
to find a way to remedy the contradiction that exists between social and
technical justice. A clear suggestion for how sexual assault can be re-conceptualized
can be found in the evolution of our thinking about employment equity and
the resulting legal doctrine.
The concept of difference may seem at first to be a contradiction of
equality, but it is not. Rather, the sole reliance on equality as "identical"
as the highest standard of justice has the effect of ignoring genuine differences
(Bem, 1994). As a result, the very problem the legal doctrine was intended
to resolve is, in fact, exacerbated in some instances. Recognizing differences
resolves the paradox by reconciling the social concept of justice with
the reality of the natural order, thus achieving a greater truth. This
process can be illustrated through concepts of employment equity. It is
also possible to apply the same logic to the issue of the legal doctrine
regarding sexual assault.
Example from Employment Equity. The attempt to encode employment
equity into the law began by defining employment discrimination as prejudice
or bias by an individual. The response was to make such actions by individuals
illegal in order to achieve racial and gender equality. However, evil intentions
were hard to prove, and easy to hide; for example, blacks and women who
in the past might have been rejected outright, now might be interviewed
by employers, but would rarely be judged best qualified for the job.
To move beyond the appearance of equity, the law next incorporated an
objective standard prohibiting differential treatment. Using these guidelines,
hiring or promotion was supposed to be done on the basis of these standards
which would be uniformly applied to all candidates in a visible way. But,
technical uniformity does not necessarily ensure fairness. For example,
a strength, height and weight requirement can be uniformly applied which
would effectively screen on the basis of gender, given that these are the
natural physical dimensions which often separate men from women.
The next stage in the evolution of conceptualizing employment equity
was to use empirically based criterion and the results of actual hiring
decisions as the standard. For example, equity requires that genuine differences
between men and women be made irrelevant to the employers' decision making
process in situations where the physical characteristics do not determine
the ability to do the job effectively. Among the consequences of requiring
empirically established criterion, and actual hiring decisions as the standard,
was an increase in the numbers of female police officers.
Accommodation of Difference as a Requirement for Equity. The
current stage in the continuing evolution of the concept of employment
equity is the acknowledgement that there are many real differences associated
with different categories and types of people. Men and women are not identical
in all respects. Race and cultures are different from each other. These
differences in biology and socialization can place a dominant group at
an advantage over another group if the dominant group controls the structure
or "doctrine." If school learning is to be didactic, white students will
be advantaged over aboriginal students who have a cultural tradition of
experiential learning. As a result, the typical didactic school curriculum
will confer an apparent meritorious advantage on whites. In reality, a
genuine difference unfairly excludes aboriginals from gaining the educational
credentials that would confer on them the power to challenge the existing
"doctrine" that denied the credentials in the first place.
The recognition that genuine differences can be a source of lack of
equality has presented the newest challenge to achieving social justice;
namely, that of tolerance and accommodation of difference (Bem, 1994).
Meeting this challenge requires finding ways to identify and to acknowledge
real differences when they exist, and to then to create a process so that
the "doctrines" of the dominant group do not needlessly disadvantage others.
Differences Between Sexual Assaults and Other Types of Offenses
In the case of sexual assault, it is important to acknowledge and to
identify how this crime is intrinsically different from other crimes. One
such way is that it is usually women and children who are the victims and
often men who are the offenders. The current legal doctrines operate to
excuse and minimize acts of sexual assault by "discounting" those features
of violence that are the most common to violence experienced by women and
children. In this sense, the doctrine and suppositions of the law serve
the interests of men over those of women and children.
Further, the very nature of a child's dependency, and of a woman's heterosexual
activities, is the willingness to enter into a social relationship with
a man. If the defining characteristics of these situations and circumstances
are also those which are used to minimize the seriousness of sexual assaults,
then the two are hopelessly confounded. Indeed, it can be argued, this
confounding is a license for sexual aggression. The social nature of protection
and affection, and the definition of the seriousness of a sexual offense,
can be conceptually separated by acknowledging the intrinsic difference
between sexual assault and other offenses such as physical assault and
robbery, even though it may also require procedural adjustments of technical
justice to ensure due process for the accused. There is no legal need to
define harm, danger, and blame for all three offenses in the same way when
there is overwhelming evidence to the contrary. A man's responsibilities
for protecting children, and becoming a respectful social partner with
a woman, is not the same relationship as the relationship that exists between
Patrick Ewing and Shaq O'Neal negotiating space under the hoop.
In hind sight, the redefinition in 1983 of rape as "sexual assault"
was probably not a very good idea. Perhaps "sexual robbery" may have been
a more appropriate metaphor than was physical assault (Renner & Yurchesyn,
1994). In cases of robbery, there is no expectation that the individual
must be injured in order to be seen as a legitimate victim. If we had retained
the pre-1983 view of treating a women's sexuality as property, then adopting
the metaphor of robbery might have improved the law to a greater extent
than the switch to an assault framework. What was wrong with the old rape
laws was not that a woman's sexuality was seen as property, but that it
was treated as the primary element of her value to either her father as
a marriageable daughter or to her husband as a wife (Clark & Lewis,
1977). The change to a robbery metaphor would have at least restored ownership
of her own sexuality to the woman.
However, searching for yet another metaphor may be the very problem
that has kept us from recognizing that sexual assault is, in fact, fundamentally
different from other offenses. The more general indictment of the current
criminal justice process is that the law and legal doctrines concerning
sexual assault have acted as the principle systemic mechanisms for invalidating
the experiences of women and children. Given this state of affairs, the
traditional view of the legal system as neutral, objective and gender-blind
is not defensible. Since the system is ineffective in protecting the rights
of women and children, it is necessary to re-examine the existing doctrines
which reflect the cultural and social limitations that have preserved dominant
male interests at the expense of women and children.
At this general level, reform, debate and discussion must go beyond
any specific changes in the law (e.g., switching to the metaphor of "sexual
robbery"), to include a critical examination of the legal doctrine itself.
To break the past cycle of ineffective reforms may require a form of re-definition
which moves to a social science level of analysis, rather than one based
solely on traditional legal scholarship; namely, one in which social justice
is seen as an evolutionary process, similar to employment equity, based
on empirical evaluation research.
A community psychology framework uses evaluation research as the primary
empirical strategy. Each observation in community psychology is treated
as similar to an observation in a traditional experiment. The observations
in this case are naturally occurring, objectively measurable "real-world"
events. Unlike traditional experimental psychology, where hypothetical
constructs are operationalized as scores on contrived scales, community
psychology utilizes real-life events to operationally define constructs.
These constructs are woven together to create an explanatory theoretical
conceptualization that can be tested and evaluated by the results of the
observations. Social justice is an example of a theoretical ideal, resting
in social values and, in western democratic states, brokerage through democratic
political processes. The resulting laws and doctrines serve as the procedural
tools for achieving the ideal. It must be emphasized that the tools and
doctrines themselves do not embody justice, but are only the operational
means for achieving justice.
The study of social justice as an empirical process requires joining
together legal and social science scholarship. One requirement is for the
laws and doctrines to be administered as they were intended; this is required
for accomplishing "technical justice." A second requirement is to hold
the actual practices (when done to the highest technical standards) accountable
in terms of the ideal, and to use any short fall as the basis for further
conceptual refinements; this is required for approaching the theoretical
ideal of social justice. To hold the success of these achievements accountable
to the standards of science is best done through the methodological framework
of evaluation research.
Process based outcome research, illustrated by this paper, is one of
the essential tools for achieving both technical justice and for instigating
the political process of legal reform as a data-based change strategy.
Accountability of institutional practices requires a continuous examination
of outcomes and the processes responsible for them. This task must combine
critical legal analysis and scholarship with empirical social science evaluation
research in order to achieve greater social justice. Psychology perhaps
has the unique capacity within the social sciences for bringing the power
of empirical research to bear on the theoretical conceptualization of important
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1. Reprints may be obtained from Prof. Edward Renner, Evaluation Research, 14241 110th Terrace North, Largo, FL 33774, USA, firstname.lastname@example.org.
2. Now at the University of Guelph.
3. A report based on the quantitative and qualitative analysis of these transcripts has not yet been published. We have completed a preliminary study (Park & Renner, 1997) in which we have developed an empirical scoring scheme for capturing the courtroom techniques used by both the crown and defence in child sexual abuse cases. Pre-publication copies of the working papers and the scoring manual are available on request.
4. The variations in sentencing also includes
the random and idiosyncratic contribution due to individual judges. These
variations are "noise" in our analysis, although these variations in themselves
could be the basis for a separate study. Some judges have a reputation
for being lenient and others harsh; lawyers manoeuvre to get or avoid certain
judges (Renner & Warner, 1981). However, this is a separate issue which
goes beyond the focus of the present paper.
|Variables taken from court records information of consecutive cases appearing before the Halifax Law Courts||Child Sexual
|Statistical Test and Significance Level|
|There is no violence.||79%||18%||X2(2,n=303)=116, p <.00001|
|No weapon was used.||95%||81%||X2(3,n=306)=19.4, p <.0002|
|There was no physical injury.||96%||59%||X2(1,n=299)=62, p <.00001|
|Penetration did not take place.||68%||45%||X2(5,n=306)=22.3, p <.0005|
|There was no physical resistance.||80%||48%||X2(1,n=302)=33.0, p <.00001|
|Alcohol use by the accused was a factor at the time of the offense.||42%||72%||X2(1,n=182)=16.6, p <.00005|
|The accused is guilty by plea rather than by trial.||52%||36%||X2(1,n=226)=5.5, p <.02|
|There was medical evidence at the trial.||25%||47%||X2(1,n=214)=11.4, p <.0008|
|The average number of witness called by the crown.||4.8||6.3||t(215)=2.97, p <.003|
|The average number of court exhibits.||2.8||4.8||t(215)=3.04, p <.003|
|There was supporting police testimony at the trial.||56%||79%||X2(1,n=216)=13.1, p <.0003|
|The accused was over the age of 35.||54%||23%||X2(4,n=332)=33, p <.00001|
|The accused did not have a criminal record.||50%||29%||X2(1,n=200)=9.3, p <.003|
|The accused was living with a partner (not single or divorced).||53%||39%||X2(2,n=298)=7.8, p <.02|
|The accused has a history of substance abuse.||34%||76%||X2(1,n=185)=31, p <.00001|
|The accused was well known or related to the victim.||69%||39%||X2(4,n=324)=52, p <.00001|
|Variables taken from court records information of consecutive cases appearing before the Halifax Law Courts||All Sexual Assaults
|Statistical Test and Significance Level
|The sentence was less than two years.||80%||47%||96%||X2(2,n=709)=159, p <.00001|
|There was high levels of violence.||6%||15%||68%||X2(4,n=934)=523, p <.00001|
|The victim was injured.||22%||37%||96%||X2(2,n=938)=428, p <.00001|
|A weapon was used or threatened.||12%||57%||43%||X2(6,n=934)=187, p <.00001|
|The victim physically resisted.||35%||22%||39%||X2(2,n=876)=13.7, p <.001|
|The victim was a woman or a girl.||87%||34%||33%||X2(2,n=1057)=213, p <.00001|
|The accused was under 25.||20%||59%||43%||X2(8,n=1012)=115, p <.00001|
|The accused was single.||37%||72%||58%||X2(4,n=875)=61, p <.00001|
|The accused was unemployed.||28%||70%||33%||X2(4,n=724)=81, p <.00001|
|The accused had a criminal record.||58%||85%||68%||X2(2,n=602)=25.6, p <.00001|
|The accused was known or related to the victim.||80%||18%||54%||X2(10,n=971)=221, p <.00001|