So long as myths persist among lawyers and judges, and women are disempowered to report to the police, spousal rape will remain under-reported and prosecuted. Women demonstrate against rape culture in front of an Ontario courthouse in 2017.DAVE CHAN/THE GLOBE AND MAIL
Sarah Weinman is the author of Without Consent: A Landmark Trial and the Decades-Long Struggle To Make Spousal Rape a Crime.
Spousal rape is a crime. But in North America and much of the world, the idea that a man could legally rape his wife is a relatively recent phenomenon. The first major American spousal rape trial took place in Salem, Ore., in December, 1978, when just three other states – Nebraska, Iowa, and Delaware – had similar statutes. (South Dakota had been the first, in 1975, but repealed their statute just 18 months later.) It would take another five years before Canada followed suit, and until 1993 for all 50 states to eliminate the marital-rape exemption. Yet the stubborn myths and misconceptions that prevented a swath of society from seeing the obvious – that sexually assaulting a spouse did constitute a criminal act – remain all too entrenched in the Canadian legal system.
Consider the case of R. vs. H.E., which spurred significant outrage in Canada in 2017. An Ottawa woman known as Z had come forward to the police and alleged that her husband, H.E., had sexually assaulted her in 2002, 10 years after they wed in an arranged marriage. Throughout their union, Z believed that her husband had the perpetual right to conjugal rights, and that she didn’t have the right to refuse. It was only when Z and H.E. separated in early 2013, and police came to the home to address custody issues pertaining to their three children, that she realized that what he’d allegedly done to her, specifically one night in 2002, counted as a crime.
At the 2017 trial, Z testified that her then-husband had grabbed her by the wrist, forced her onto the couch, pulled down her pants, and had sex with her – despite at least three entreaties by her to stop. Realizing he wouldn’t, Z closed her eyes and prayed for the alleged assault to end. When it finally did, she got up and took a shower. H.E. denied the assault, or ever having non-consensual sex with Z. He claimed the 2002 incident couldn’t have happened because he had just had a hair transplant and there was no sex between them in the two weeks afterwards.
Opinion: Canada’s sexual-assault law is not the problem – it’s the application of it
The presiding judge, Robert J. Smith, found Z’s testimony to be credible, finding “her evidence that the accused believed he had a right to have sex with his wife was not contradicted.” He also dismissed H.E.’s credibility, finding him “argumentative and evasive” on the stand and that his evidence “does not accord with common sense to a reasonably informed person.” Justice Smith also 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.”
Yet Justice Smith acquitted H.E. of sexually assaulting his wife. (He also found H.E. not guilty of two counts relating to assaulting and threatening one of their daughters.) Justice Smith expressed disbelief that if Z had been sexually assaulted in 2002, she would continue to have sex with her husband until 2013. It took a “dispute involving access” for Z to make the complaint, and Justice Smith saw these circumstances as suspicious – and as reasonable doubt.
As law professors Jennifer Koshan, Melanie Randall, and Elizabeth Sheehy wrote in the immediate aftermath of the verdict, “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.” Justice Smith was hardly the only judge to labour under this apparent misunderstanding. That same year, Justice Graeme Mew vacated the spousal sexual-assault convictions of an Arnprior, Ont., man, taking issue with the wife’s reluctance “to acknowledge any link between the outcome of these proceedings and her family law case.” This, despite Justice Mew saying “it does not mean that I find him more credible than her, nor does it mean that it is not possible that some of the incidents alleged by [the wife] to have occurred in fact happened.”
Criminal convictions require juries and judges to believe the defendant is guilty beyond a reasonable doubt. But these two cases, and far too many others, demonstrate that “reasonable doubt” is built upon rape myths and misunderstandings. They include the idea that a woman wouldn’t have consensual sex with someone after he had sexually assaulted them, or that she would make up an accusation to help her gain custody of their children, or that getting married means always consenting to sex. Such misconceptions never take into account the complexities of abusive intimate partner relationships, where women – notably women of colour and members of Indigenous communities – may have few other socioeconomic options, making the status quo the only choice.
Spousal rape myths date all the way back to the 17th century, when English jurist Sir Matthew Hale wrote that once married, a woman gives irrevocable consent to sex with her husband: “For by their mutual matrimonial consent and contract, the wife hath given herself up in this kind unto the husband which she cannot retract.” (Sir Hale also infamously described rape as “an accusation easily to be made and hard to be proved and harder to be defended by the party accused, tho never so innocent.”)
Reorienting the legal system around the needs of those who have been sexually assaulted by a spouse or partner would take a long time but would be worth the benefits. A protester during a demonstration in front of the Ontario Provincial court house in Ottawa, Oct. 30 2017.Dave Chan/The Globe and Mail
As far back as 1970, Canada’s Criminal Code still had an exemption, stating “A male person commits rape when he has sexual intercourse with a female person who is not his wife … without her consent.” By 1977, around the same time that feminists began agitating for rape-law reforms in the United States, the National Association of Women and the Law (NAWL) took issue with spousal rape immunity, arguing it was “one of the most serious deficiencies in the present offence of rape.”
It took another six years, but on Jan. 1, 1983, Bill C-127 removed the spousal rape exemption and created a new legal framework for treating it as a prosecutable crime. Or at least, it should have. Even though the statistics bear out that spousal rape is a persistent problem, criminal complaints – let alone trials leading to convictions – remain rare, with just 400 cases decided between 1983 and 2013. According to a Statistics Canada report on family violence, between 2009 and 2014, at a time when the overall rate of police-reported intimate partner violence declined, the rate of spousal sexual assaults rose 19 per cent for female victims during this same time frame – and continued to rise even more over the years, with a more recent StatsCan report suggesting intimate partner sexual assault was 163-per-cent higher in 2022 than in 2014.
So long as myths and misconceptions persist among lawyers and judges, and so long as women are disempowered to report to the police, spousal rape will remain woefully under-reported and prosecuted. The Canadian legal system is clearly not designed to find solutions, as the adversarial system too often ends up retraumatizing victims as they are forced to relive the worst thing that ever happened to them. This retraumatization is even more prevalent among First Nations groups and other minorities.
But a recent proposal by the feminist author and legal researcher Suzanne Zaccour offers an intriguing and radical possibility: to reframe the legal system for sexual assault primarily through the prism of repeated partner sexual violence. As Dr. Zaccour told me in a recent interview, the difference between “acute” sexual violence – what we might associate with stranger rape – and “chronic” sexual violence (involving spouses and intimate partners) requires different approaches.
“We don’t know as a society what sexual violence looks like,” Dr. Zaccour said. “We spent decades trying to tweak the rules and trying to fit partner sexual violence within the [legal] framework, and we should start from scratch: what is partner sexual violence, and how does stranger rape fit within that model?” The subtext, she noted, is that “we need to be careful about partner sexual violence because what if women lie? It’s a lose-lose prospect for women because there is no good timing to disclose [a sexual assault].”
Reorienting the legal system around the needs of those who have been sexually assaulted by a spouse or partner would take a very long time, but it would certainly help loosen the grip that marital rape myths have on those who operate within it. Any changes, however, would come too late for the woman named Z.
In 2019, her former husband, H.E., was retried in Ottawa for spousal sexual assault, after the Ontario Court of Appeal ruled that Justice Smith had made significant errors in his acquittal ruling by basing it on the accused’s belief he had a perpetual right to consent, since this wasn’t actually H.E.’s presented defence.
But this trial had a different judge who saw things differently. Where Justice Smith found Z a credible witness (despite acquitting her then-husband), Justice Julianne Parfett felt otherwise: “There were serious inconsistencies in [Z’s] evidence that have led me to conclude she is not a reliable witness,” Justice Parfett ruled. “In addition, there was a significant motive to fabricate,” relating to the custody dispute over their children.
For a second time, H.E. was acquitted of spousal sexual assault. His lawyer told the Ottawa Citizen that the “false allegations” had “taken a toll” on his client. “This acquittal is the first step toward rebuilding his life.” But in order for Z and others like her to rebuild, it may take upending every possible myth and misconception surrounding what can happen between spouses, especially without one partner’s consent.