“If childhood is a house…then child abuse is a like having someone break in and force you to watch at gunpoint while he burns the house down. In order to heal, one must then saw the lumber, cut the glass, weave the curtains, and build the furniture…You can pay someone else to show you how, but you can’t buy someone else’s or get someone to rebuild it for you.” – The Crime and its Victims.
The true extent of child sexual abuse in Canada has only come to light in recent decades. The Badgley Report, a cross-Canada study on the abuse of children, revealed horrifying statistics about how prevalent these crimes are in Canada. The report found that one in two girls and one in three boys were the victims of unwanted sexual advances before the age of eighteen; three out of five of these victims were threatened or physically coerced. These numbers are startling. The Badgley report stated, “Child sexual abuse is a largely hidden yet pervasive tragedy that has damaged the lives of tens of thousands of Canadian children and youths. For most of them, their needs remain unexpressed and unmet…”. Historically, testimony by children was given little weight, especially in sexual abuse cases; there was a hesitation to convict on a child’s testimony alone. People believed that child sexual abuse simply did not happen. John Wigmore, whose writings on the law are still accepted today, warned about accepting the complaints of women and children regarding sexual offenses. However, the Badgley report showed that sexual abuse of children was prevalent in Canada. The laws were improved in 1988, but there is still progress to be made concerning attitudes toward sexual abuse of children.
It has been a long and hard struggle to get recognition for any type of child abuse and even with recognition it is difficult to spark a change on this topic. Throughout history, children were seen as property and parents could do whatever they wanted to them without repercussions. Unfortunately, child sexual abuse is not a new phenomenon; nothing was done about it in the past and even now it takes a lot for it to be reported, investigated or stopped.
Problems with Original Laws
Prior to 1988, laws governing child sexual abuse did not reflect the reality of the situation. Some of the problems were:
- Gender bias – many offenses were only applicable to female victims and male offenders. The reality was that many young boys were sexually abused and they were not protected.
- Limited range of sexual activity – many offenses only covered vaginal intercourse and did not encompass the many different types of sexual molestation, such as touching or fondling. Invitation was not an offense.
- Requirements of previous chaste character – girls who had some previous (consensual) sexual experiences were not considered “of chaste character” and were not protected. A victim’s sexual reputation could be used to discredit them and thus made it more difficult for these victims to report the abuse.
- Time restrictions – the offense had to be prosecuted within a year of the offense. Many victims take many years to gather up the courage to report their victimization.
- Lenient sentences- prior to recent legislation, the sentences connected with sexual offenses against children did not reflect the reality of the damage that these crimes did to the victims. For example, for the crime of incest, there was no minimum punishment, or for the crime of sexual exploitation, an offender may only be required to serve a prison sentence of 45 days.
Current Child Sexual Abuse Laws
In 1988, changes were made to the Criminal Code in an effort to combat some of the shortcomings of previous laws. As child sexual abuse does not always involve intercourse, changes were made to include other sexual behaviour. Furthermore, the Safe Streets and Communities Act, which was passed in 2012, introduced or increased many mandatory minimum sentences associated with these laws.
The following is a summary of the laws governing child sexual abuse in Canada:
- Sexual Interference (Section 151 of the C.C.C.)
This section makes it an offense to directly or indirectly touch, for sexual purposes, any part of the body of a child less than sixteen years of age. The touching includes anything with either a body part or an object. The maximum punishment for this offense is imprisonment for a term of no less than one year and no longer than fourteen years when the offense is indictable. For summary offenses, the maximum term of imprisonment is two years less a day and the minimum is 90 days.
- Invitation to Sexual Touching (Section 152 of the C.C.C.)
This section makes it an offense to invite, counsel or incite a child less than sixteen years of age to directly or indirectly touch another person (including the person who invites, counsels or incites) for a sexual purpose. The touching includes anything with either a body part or an object. The maximum punishment for this offense is imprisonment for a term of no less than one year and no longer than fourteen years when the offense is indictable. For summary offenses, the maximum term of imprisonment is two years less a day and the minimum is 90 days.
- Sexual Exploitation (Section 153 of the C.C.C.)
This section makes it an offense for anyone who is in a position of trust or authority over a young person or in a relationship of dependency with a young person, to sexually touch them in any way (including with either a body part or an object), or to invite, counsel or incite them to touch another person, including the person who invites, counsels or incites, in any way (including with either a body part or an object). The maximum punishment for this offense is imprisonment for a term of no less than one year and no longer than fourteen years when the offense is indictable. For summary offenses, the maximum term of imprisonment is two years less a day and the minimum is 90 days.
* “Young person” refers to someone sixteen years of age or more but under the age of eighteen years.
- Incest (Section 155 of the C.C.C.)
This section makes it an offense to have sexual intercourse with someone who is related by blood; this means a parent, child, brother (half-brother), sister (half-sister), grandparent or grandchild. To be convicted of this offense, the offender must have had sexual intercourse with an individual that was known to be a blood relative. The maximum punishment for this offense is imprisonment for a term no longer than fourteen years, and if the victim is less than 16 years old the minimum penalty for this crime is 5 years in prison. Offenders who commit incest with a child can also be charged with the general child abuse sections of the Criminal Code of Canada.
- Sexual Assault (Sections 271, 272 & 273 of the C.C.C.)
These sections are not specifically aimed at children, but do carry specific penalties if committed against a child under the age of sixteen.
Sexual assault is the legal term for ‘rape’. In Canada we have three ‘degrees’ of sexual assault – sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated sexual assault. Sexual assault is the intentional application of force, directly or indirectly, to another without their consent for sexual purposes. This section can include behaviours such as unwanted touching, forcing an individual to touch another, assaulting with a weapon, threatening to harm a third party, wounding an individual in the course of a sexual assault or endangering the life of an individual during the course of a sexual assault. The penalties for these crimes committed against children under the age of 16 include a maximum term of fourteen years and a minimum term of one year for an indictable sexual assault (more serious) or a maximum penalty of two years less a day and a minimum of six months if the assault was a summary offense (less serious). For a sexual assault offense where a weapon or threat to a third party was used, the maximum penalty is 14 years and the minimum penalty is 5 years for the first offence, any subsequent offences are subjected to a penalty of seven years. Where the sexual assault against the child was aggravated, the minimum penalty is also 5 years but the maximum length of imprisonment is increased to a life sentence.
- Parole Conditions and Record Suspensions (Pardons)
Offenders convicted of a sexual offense against a child can be prohibited from frequenting public parks or public swimming areas, daycare centres, school grounds, playgrounds, or community centres where children are likely to be found. The offender can also be prohibited from using a computer for the purpose of communicating with a person under the age of sixteen years. They may also be prohibited from seeking or obtaining employment in a position of trust or authority over children. This can be a lifetime ban; a decision is made by the court whether or not there will be a ban and how long it will be.
Additionally, with the passing of the Safe Streets and Communities Act on March 13, 2012, offenders convicted of sexual crimes against children are limited in their eligibility to apply for record suspensions (pardons). In fact, if the offender was in a position of trust or authority over the child, if they used, or threatened to use, violence, intimidation, or coercion in relation to the victim, or if the offender was more than 5 years older than the victim, they may not be eligible to apply for a record suspension at all.
- Peace Bonds
Under section 810 of the Criminal Code of Canada, any person who fears on reasonable grounds that another person will hurt him or her, his or her spouse or child, or damage his or her property can apply to obtain a peace bond. A peace bond, or recognizance, is a court order requiring the person to whom it is directed (the defendant) to keep the peace and be of good behaviour. Conditions may also be added to the peace bond in order to ensure good conduct. Many conditions include that the defendant avoids contact and remain a certain distance from the home of the person that requested the peace bond. A peace bond can be issued for up to a year, and common-law peace bonds for longer. If a person refuses to sign a peace bond it may result in imprisonment for up to a year and, when signed, it is a criminal offense to violate the conditions of the bond. However, signing a peace bond or recognizance does not result in a criminal record. Amendments were made in February 1995 to make it easier to obtain protective orders where police and others can apply on behalf of a person at risk of harm. In 1997, Bill C-55 came into effect and significantly toughened the Dangerous Offenders provisions. It also created new peace bond provisions that focus on individuals that appear likely to commit violent or sexual offenses.
Consent is defined by the Criminal Code of Canada as the “voluntary agreement of the complainant to engage in the sexual activity in question.” The Tackling Violent Crime Act, enacted in 2008, raised the legal age of consent for sexual activity in Canada from fourteen to sixteen, the first time it had been raised since 1892. However, the age of consent for sexual activity that exploits a young person is eighteen. A clause in the age exemption allows youth aged fourteen to sixteen to consent to sexual activity with a partner within five years of age. An accused cannot use the defense of consent if that person is in a position of trust or authority over the child under the age of eighteen. It is not a defense to this crime for the accused to say that he did not know the child’s age; the accused must have taken all reasonable steps to ascertain the correct age. For children who are legally able to consent to sexual activities, the accused is required to have taken reasonable steps to ascertain the victim’s consent. Consent cannot be assumed based on the victim’s silence.
Children as Witnesses
There is much concern in the criminal justice system surrounding the testimony of young people. Many people have serious concerns about allowing children to testify, especially in sexual abuse and assault cases. One of the concerns is that children cannot tell the difference between truth and fantasy and that the abuse may be a fantasy. Another concern is that children will lie to get back at a parent or someone else, or that a parent can coach children to lie; which is typically seen in custody disputes.
Children often find it very difficult to testify in open courtrooms; it is easy to imagine how a child would be very nervous and intimidated in a courtroom atmosphere. The kind of subjects surrounding sexual crimes are often embarrassing for children to talk about in private, let alone to disclose to a courtroom full of strangers. Children may also be afraid of retaliation from the accused since threats against the child are often a part of their attempts to keep the abuse a secret. A support person or relative can be permitted to sit near the child while they are testifying, sometimes children are permitted to bring in a toy or blanket, and props such as dolls and drawings can be used to assist the child. Depending on when the crime occurred in the child`s developmental process, they may not have had the capacity to understand what was taking place. Children sometimes have trouble with specifics – such as dates – and this can lead to problems in the laying of charges and conviction. The Crown prosecutor can help by asking the child if the abuse happened around Christmas time, or close to some other significant event in the child’s life; however, this may be construed as leading the child witness.
Despite all the negative beliefs about child witnesses, research conducted in Canada, the United States, Australia, England, Ireland and Scotland has demonstrated that children are highly undervalued in the legal system. Empirical studies done in the 1980’s showed that the memory of a person is not directly correlated to age. Children from the age of three or four are capable of providing reliable information. It was also established that children are no more likely to fabricate evidence than adults. Psychological and medical studies also reveal that, although children engage in imaginative play, they are capable of discerning fact from fantasy in the context of witnessed events. Research on improving the reliability of child witness testimony in court provides four recommendations; focusing on the manner in which a child’s evidence was obtained (when determining the reliability of the statement), addressing the problem of leading and closed questioning during cross-examination, increasing the feedback to investigative interviewers regarding the judicial reaction to their interviews and providing more training to police, lawyers and the court around the issue of children’s suggestibility and the relative impact of various questions. Under the Canada Evidence Act, persons who are under the age of fourteen are presumed to have the capacity to testify. Furthermore, children under that age of fourteen whose mental capacity is challenged may give testimony after the court has deemed that the child understands and can respond to any questioning nature. A witness under fourteen does not need to take an oath or make a solemn affirmation in order to testify.
Children under eighteen years of age can be permitted to testify behind a screen or through a video display setup outside the courtroom. The judge must first be convinced such an arrangement would be necessary to obtain a full account of the child’s evidence. The accused and their lawyer must be permitted to hear the evidence and make answer to it. Screens are used much more frequently than are closed circuit televisions, but some people feel that televisions are better because the jury would infer that the child is afraid of the courtroom and not necessarily the accused. The legalities of the use of screens and videos has been questioned but, as one court put it, “the right to face one’s accusers is not in this day and age to be taken in the literal sense…(it is) simply the right of an accused person to hear the case against him and to make answer and defence to it…”. The reality is that screens and closed circuit televisions are used in few cases. One reason for this is that few courtrooms have access to screens or televisions.
For cases where the accused has chosen to represent themselves, a judge is permitted to appoint a counsel for the sole purpose of cross-examining the child victim since it could be very traumatic or intimidating for the child to be confronted by the accused. Young victims can also be videotaped in advance of the trial and the tape played at the trial. However, the child will still have to take the stand to “adopt the contents of the videotape,” or to testify that what is contained on the tape is the truth. The child may have to be cross-examined also since the defence must be able to answer the charges. The rules governing the use of these types of tapes are very strict to ensure they have not been edited in any way. For example, a clock must be visible to the camera at all times to prove that the tape was not stopped or paused for any reason. Tapes must be made as soon as possible after the abuse has been reported.
In the past, it was required by law that a complaint of sexual abuse had to be reported within one year of the offense. It is now known that it often takes years for people to build up the courage to report abuse and the law has since been changed. There is no longer a requirement that the complaint be recent. The credibility of the complaint should not be affected by the time it took to make the charge. However, as is often the case, the law is different from reality. The reality of it is that many victims are still questioned in court about why they did not tell someone sooner so the abuse would stop. In this way, it is no surprise that many victims feel worse after reporting because of the treatment they receive on cross-examination. Cases where there has been a delay in reporting are often difficult to prosecute. The following remarks made by a judge involving a sexual abuse case in which the offender had already pleaded guilty, emphasize this problem: “I have difficulty accepting that the plaintiff would sit and say nothing for 20 minutes and 15 minutes respectively while the accused did what she said he did to her, and never bring the subject up for nine years.” The judge then acquitted the man in spite of the fact that the accused had admitted guilt. The difficulty one must endure to report sexual abuse may be astounding, however, it is absolutely necessary in the fight to eliminate this threat to children and adults alike.
When it comes to suspected or verified abuse about a child, the safety of that child should be your first priority. Parents, caregivers, and professionals have an obligation to report suspected child abuse; failure to protect a child from further abuse becomes a matter of child protection and, in many jurisdictions, requires statutory intervention. Many professionals are now required by law to report child abuse. The more information you provide, the greater the chances of an effective investigation.
The law has been changed with respect to corroboration. Corroboration is the confirmation that a fact or statement is true through some sort of evidence. It used to be that a person could not be convicted of a sexual offense unless there was some kind of corroborating evidence, or proof, to back up the child’s testimony; this is no longer the case. An accused can be convicted on the evidence of the child’s testimony alone. This does not mean that the court has to convict on that evidence, only that it has the option to do so. The prosecution still must prove the case beyond a reasonable doubt, so it is important to gather as much evidence as possible.
Most cases of sexual abuse are committed in a private setting where only the offender and the victim are present. Since many cases are not reported right away, there may be little physical evidence. Cases involving no other evidence than the child’s testimony are difficult to prove and often result in an acquittal. The fact that the child has information of a sexual nature that they should not otherwise have is a good indicator that they are telling the truth. Many judges still comment on the risks of convicting an accused solely on the child’s testimony.
Past Sexual History
Past sexual history is not an issue for young children but it may be for older children. Prior to 1992, a defendant who was accused of a sexual offense could use the victim’s past sexual history in a trial in order to portray the victim as more likely to consent or less worthy of belief – basically, to discredit the victim. Past sexual history could involve a multitude of things, such as the number of previous sexual partners. In 1992, however, legislation amended the Canadian Criminal Code to ensure that past sexual history may not be permitted in the legal system. This is commonly referred to as Canada’s “rape shield law.” The rape shield law limits a defendant’s ability to cross-examine sexual assault victims about their past sexual behaviour; it also prohibits the publication of the identity of an alleged rape victim. It has been said that the rape shield law, “is a fair balance between the rights of suspects and of alleged sexual assault victims.”
A publication ban is a judge’s order prohibiting the public and the media from broadcasting or publicizing any identifying information about a victim or witness of crime; it is intended to protect their privacy. A publication ban may enable victims and witnesses to actively participate in the criminal justice system without any adverse consequences. A victim of a sexual offense or any child victim can have a publication ban put in place; in cases where the release of the accused person’s name may indicate the identity of a child victim, a ban can be placed on the name of that accused person as well. As of 1999, the Criminal Code provides that “a judge may make an order to protect the identity of any victim or witness, or any information that could disclose his or her identity, if the judge is satisfied that the order is necessary for the proper administration of justice.” The Criminal Code also states that a judge must order a publication ban to protect all victims of sexual offenses and witnesses of sexual offenses who are less than eighteen years of age. The judge may also remove the public from the courtroom if the child desires.
Sentences for Child Sexual Abusers
The following cases illustrate that child sexual assault offenders tend to receive relatively lenient sentences:
- Graham James (junior hockey coach) – convicted of sexually assaulting 6 of his former hockey players – 10.5 years collectively
- Vadim Scott Benderman – convicted of sexually abusing 4 homeless teen boys – 4 years, was given a lenient sentence because of his “sincere apology”
- Cyril Keats – convicted of sexually assaulting four children – considered a sexual predator but only sentenced to 2 years
- Carson Dickie (gymnastics coach) – convicted of luring a child, invitation of sexual touching, and sexual exploitation regard two incidents with young girls in 2008 – sentenced to 2.5 years and made to pay $600 in fines
- Phillip Nolan – convicted of 5 counts sexual assault, sexual interference, and sexual exploitation of a minor – 2 years and 3 years probation
- Scott Stanley – convicted of 16 counts related to the sexual assault of 4 victims – 5 years, but was credited for his pre-custody house arrest, so will serve 3 years and 281 days in prison
These are just a few examples of the sentences given to child sex offenders. Even though sexual assault is seen as a serious criminal offense, it is not reflected in the sentencing of perpetrators with most offences being around the 5 year mark – even for multiple convictions. These offenders are also able to apply for parole 1/3 into their sentences, and most offenders are released 2/3 into their sentence on mandatory supervision. Furthermore, many offenders receive lenient sentences for showing remorse for their actions, like Vadim Scott Benderman.
Judges do not have the authority to impose mandatory treatment for these offenders because such an imposition was ruled unconstitutional by the Supreme Court of Canada. In 2004, however, in partnership with provinces and territories, the Canadian Government created a National Sex Offender Registry in order to provide rapid access to vital information to the police about convicted sex offenders. The public does not have access the registry. Under court order, an offender may be required to register before their release from prison and must register annually and any time they change address or legal name. Offenders may be required to remain registered for 10 years to life, depending on the maximum length of the sentence for the crime. Federal legislation requires provinces to send information about sex offenders to the national database. Currently, there is a push for a stricter monitoring of sex offenders and to update Ontario’s provincial registry to be in line with the federal one.
Effects of the Changes
A study of the effects of the 1992 changes to the law governing child sexual abuse was done in 1998. It found that more cases were being reported and that more charges were being laid due to the fact that the law covered a wider range of forms of abuse. More cases involving younger victims were being prosecuted, and younger victims were being allowed to testify in court. More cases involving male victims were being reported because the gender specific crimes were eliminated and higher conviction rates imply that the changes have been successful.
The Canadian Incidence Study of Reported Child Abuse and Neglect (1998) helps us understand the topic. The study collected information on over 7,000 child welfare investigations from child welfare authorities across the country during a three-month period in 1998. The study estimated that at the time there were 135,573 child maltreatment investigations in Canada and an estimated 14,406 (11%) involved sexual abuse as the primary reason for investigation – 38% of these were substantiated, 22% remained suspected, and 40% were unsubstantiated. Despite all the information and statistics, it is still difficult to obtain a complete picture of child abuse in Canada. A child who is being abused is usually in a relationship of dependency with their abuser, thus the child will not, and cannot, tell anyone what has happened to them. The child may endue the abuse for a long time before reporting it or they may in fact never report it.
Although the laws governing the sexual abuse of children have improved, attitudes about victimization within the justice system have been much slower to change. Until society becomes more educated on the causes, signs and effects of sexual abuse, change will be difficult; the idea that children are unaware and fabricate stories of sexual abuse needs to be rethought. Some proposed changes are: adding new child-specific offenses to the Criminal Code, ensuring that that the Criminal Code provisions concerning age of consent are always appropriate, ensuring the Criminal Code contains sentencing provisions to better protect children, and improving the experience of child witnesses and facilitating their testimony in criminal proceedings.
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