Rape Shield Laws And Women’s Rights In Canada

Rape Shield Laws plus Women’s Rights within Canada

Rape is really a type of sex assault when the person will possess sex against their own will. “Rape shield” is an idea within the legislation associated with countries like North america, New Zealand, Sydney, and others. The idea refers to the particular limitations imposed simply by the law to utilize the victim’s previous sexual history as evidence. “Rape shield” allows for more objectivity in the cases when the defense might try to point out the fact that the victim was sexually active and, therefore , more likely to consent to the sexual act in question. In essence, a “rape shield” prevents unfair inference and protects rape victims from judgment. This paper argues that for all its controversy, the rape shield has had a positive impact on women’s rights in Canada.

The Impact of Rape Shield Laws

Victim Blaming

First and foremost, rape shield laws help to address the detrimental phenomenon that is victim-blaming. Victim blaming occurs when the observers blame the victim of rape for what has happened to her based on her personal qualities, past experiences, or behaviors. An example to illustrate the concept would be once the observers inquire the reason why the victim has been dressed in the particular, often exposing or suggestive method. They might query her choices: the reason why she would become out alone in night, why might she consume alcoholic beverages at a club unattended, or the reason why she would connect with untrustworthy individuals. What is regarding is that victim-blaming is very an effective mindset. You can imagine that like conclusions can just be made simply by people who perform not have considerable knowledge regarding the particular criminology and mindset of rape. Nevertheless, as numerous experts display, the manipulation associated with the victim’s picture often happens within courts and straight impacts the last judgment (Van der Grubb and Bragg, 2014). Victim blaming changes responsibility from your criminal to the sufferer and impedes the particular execution of proper rights.

The performance of justice within court is not really everything becomes inhibited. When victims are usually at likelihood of becoming blamed, they may be reluctant to speak upward or report. Vehicle der Grubb plus Bragg (2014) display that rape spreads throughout even the almost all developed societies. With regard to instance, based on current statistics, every fifth women in North America has been assaulted at least once in her life. One would expect a lot of rape cases; however , rape often goes underreported with some sources hinting at numbers as low as 20-25% of the total number of cases (Van der Grubb and Bragg, 2014). Investigating rape is a lengthy and challenging process that often challenges the victim emotionally, even if everyone involved treats her with fairness and respect. It is readily imaginable how anyone who experienced assault would be not sure about taking action given that the odds of being blamed in return are high.

The process of rape investigation starts with the police. Ellison and Munro (2014) provide a systematic review of the current literature on the so-called rape acceptance in police officers. Rape acceptance is a social paradigm that denotes rape as acceptable. Those societies that show high rape acceptance do not address the issue of sexual violence properly, preferring to blame the victim and conceal the case altogether (Ellison & Munro, 2014). Ellison and Munro (2014) show that a small part of police officers indeed hold a negative attitude toward rape victims. Their reaction can also be likely to change depending on some accompanying factors such as alcoholic intoxication. In one experimental study, a mock victim who was drunk was seen as someone who was taking a risk knowingly. Therefore, given that like attitudes persist, there exists a need to in some way address them lawfully.

Rape safeguard laws in North america aimed at moderating the human element in justice performance. Indeed, the legal justice strategy is not really devoid of the particular psychological aspect. For example, the prosecution or maybe the defense might possess their very own, personal viewpoint around the participants associated with the process plus be biased when creating decisions. Van dieser Grubb and Bragg (2014) show that will in the situation of rape, victims’ characteristics and observers’ characteristics impact one another simultaneously.

What deserves consideration is the fact that there are particular patterns about what type of observers will probably resort to victim-blaming. A meta-analytical evaluation of articles upon the subject issue indicates that males are more prone to reduce the adverse effect of rape plus exaggerate the victim’s responsibility (Van dieser Grubb and Bragg, 2014). Besides, the particular better the sufferer and the criminal have recognized each other prior to the incident, the particular more likely the particular woman was going to become blamed for their actions (Van dieser Grubb and Bragg, 2014). It is far from in order to say that any kind of male juror, prosecutor, or advocate will use victim-blaming. Nevertheless , to prevent this particular from happening, afeitado shield laws are usually still needed.

An example will be provided in order to illustrate the excuse effect of afeitado shield laws upon victim-blaming. This 12 months, the Supreme Courtroom of Canada pubs a man charged of having sexual intercourse having an underage lady from inquiring regarding a cross-examination (The Canadian Press, 2019). The perpetrator meant to mount the defense by making use of the evidence concerning the victim’s previous sexual experiences. The particular central piece associated with evidence was that will the girl grew to become pregnant around the particular same amount of time as the particular rape happened. The particular cross-examination would include a criminal court records search on the girl sexual activity. The particular defense assumed it might not possess been the criminal who impregnated the girl but another person, consequently, hinting at exactly how energetic she was sex. The Supreme Court found the inquiry ungrounded, and in July 2019, the man was convicted of rape.

Emotional Distress Relief

It is no wonder that rape case investigation puts stress on the victim’s mental health and sanity. Rape victims are likely to be in severe distress or even traumatized, to begin with. For instance, Langton and Turman (2014) provide a piece of statistics that 70% of victims of violent crimes showed signs of extreme emotional distress. Mbalo, Zhang, and Sam (2017) report that there is a strong association between rape, PTSD (post-traumatic stress disorder), and depression. Further, Mbalo et al. (2017) explain that some groups of women are more at risk of developing stress and long-term mental conditions as a result of rape. Typically, those who have been abused as children experience retraumatization through rape, which makes their situation even direr. Unemployed women and women without a stable support network (family, life partners, friends) were also more susceptible to PTSD and depression. The latter was explained by those women’s inability to share and relieve pain through conversations or merely becoming in someone’s existence.

What ought to be noted is the fact that while stress is definitely an undesired but regular reaction, it may prevent victims through executing self-agency plus being assertive within court. The discomfort of being the victim of the violent crime are not able to be that very easily recuperated. The actual proper rights system should try to do rather is protect sufferers from becoming much more traumatized. In this particular case, rape safeguard laws help ladies regain their honesty and self-respect due to the fact other parties are not able to interfere with their own previous personal encounters and cause even more distress.

Digital Security

For all of their advantages, one method by which rape safeguard laws do not really quite protect sufferers in Canada will be ensuring digital protection. Birdsell (2014) declare that the advent associated with the web age needs a re-evaluation associated with what put the Web space consume the particular legal system. Birdsell (2014) explains that will in Canada, the particular laws addressing the particular concealment of the particular victim’s identity may date back to the 1980s. Today, they should become applied along with afeitado shield laws in order to make sure that will rape trials are usually fair. Nevertheless , presently there is a particular schism between afeitado shield laws plus victims’ rights code when it comes to how these people treat the info upon the Internet. In accordance to Birdsell (2014), none of all those two categories associated with laws cover the particular entire issue. Inside essence, rape safeguard laws serve with regard to evidentiary protection, which usually only serves worth it within the court’s walls. Outside the particular court, victims are usually often defenseless and don’t have total control of the amount, high quality, and access in order to information.

One feature that Birdsell describes as determining when he talks about the issues associated with rape and electronic security is the particular permanency from the info on the Web. Unlike physical pictures and videos, what ever is posted on the internet is likely in order to stay there with regard to an indefinite time period. For example, actually if the proprietor of a sociable media profile chooses to delete the photograph or the video recording with regard to good, she are not able to be quite sure no one stored them for individual use or to use them against her. Now that this paper addressed the negative attitudes that observers might have toward rape victims, it is readily imaginable that certain social media content may also become the reason for victim-blaming.

Powell (2016) discusses the way women’s social media accounts are perceived in the light of increased rape awareness. The researcher shows that more often than not, digital security guidelines prescribe women to prevent sharing or publishing intimate images with regard to their security. A good example to illustrate the problem in regards in order to the subject issue from the paper will be posting revealing photos to discover later on they are used simply by the court that will the victim was previously sexually active, and therefore, the case investigation is going to take a different direction. Powell (2016) argues that advising women not to post anything is counterproductive. Surely, everyone should take reasonable precautions when being active on social media. However, putting the burden of responsibility only on female SM users is problematic for two reasons:

  • some images and videos can be interpreted by the defense in a way that would present them as suggestive even if it is not how they are meant to be seen;
  • women are often hacked with their intimate images being leaked, i. e. the images that make it to the public have never been meant to end up there.
  • Taking all points into consideration, it seems that there is a legal way to govern cross-referencing using the Internet. So far, it seems that rape shield laws do provide a solid framework to do it; however , they need to be applied together with victims’ rights statutes to make a positive impact.

    Controversies to Address

    Symmetry

    It has been shown that rape shield laws have a positive impact on women’s rights in Canada. However, some controversies are unavoidable and have yet to be properly addressed. In the day and age when rape awareness is at its peak, many people find themselves wary of false accusations. To them, laws such as rape shield provide scammers with a breeding ground for creating lies and ruining innocent people’s lives. It is hard to deny that false rape accusation cases do occur and the alleged victims sometimes do prove to be abusers and violators. Therefore, some legal researchers and practitioners hint at the need to make the law more symmetrical to make sure that both the victim and the accused can be equal and not let a single party prevail over the other. Surely, in the context of this paper, the issue needs to be analyzed from the standpoint of women’s rights as the defendant’s rights are not exactly its subject matter.

    Imwinkelried (2015) states that symmetry laws have the potential of ruling out false accusations because in this case, the plaintiff’s history of accusations would be checked. The general premise is that if a person is known for making false claims, she is likely to continue doing them seeking attention or financial rewards from those who she is trying to accuse. Imwinkelried, E. J. (2015) provides a framework for deciding whether an accusation will be false based upon the plaintiff’s criminal court records search. The questions that must be answered before going forward include but are usually not limited in order to the following:

    • Are the accusations both stranger rapes or both acquaintance rapes?
    • What types of sexual activities are involved in the charged crime and the case described in the false report? Was the sexual conduct in both situations conventional or both instances displayed aberrant conduct?
    • What modus operandi did the victim claim that the offender followed in the charged and uncharged crimes? For instance, a curious and implausible situation is when the victim claims the identical modus operandi in two unrelated stranger rapes.
  • Are the accusations both stranger rapes or both acquaintance rapes?
  • What types of sex activities are included in the billed crime and the particular case described within the false statement? Was the sex conduct in each situations conventional or even both instances shown aberrant conduct?
  • What modus operandi do the victim state that the culprit followed within the billed and uncharged offences? For instance, the curious and implausible situation is once the victim claims identical modus operandi within two unrelated unfamiliar person rapes.
  • Imwinkelried, E. M. (2015) states that this more similarities you will find between the 2 cases – 1 false and the particular other uncharged, the particular less credibility ought to be assigned. This method is really as efficient as this is problematic. Really, if rape safeguard laws are used in this situation as well as the defense will be barred from cross-examination, it might mean that will the court will certainly proceed having a false accusation in some instances. Upon the other hands, there might become an unusual case whenever a woman can make a false accusations and then the real one. After that the latter will never be taken seriously credited to the good deception.

    Purity Myth

    Another issue highlighted by Loewen (2015) is the particular purity paradigm that will still prevails within court. Loewen says that rape safeguard laws are much from being really progressive and strengthening women. Based on the specialist, regardless of regardless of whether sexual history will be considered delete word, the particular common public emotion is that sex history does issue. Loewen (2015) describes that whenever rape safeguard laws are passed, the court will not quite recognize women’s rights in order to their bodies plus making choices concerning their sex existence. Instead, the criminal prosecution does its greatest to conceal the particular facts and existing the victim within the best light. Looking for sympathy from the particular judge and some other observers, the criminal prosecution claims that this sufferer is pure plus innocent. To progress feminine empowerment, you will need to debunk the purity misconception and denote intercourse as a regular part of the woman’s life. Within this case, intercourse will remain the fact from the prior that does not really serve either because evidence or some thing to become hidden in all costs.

    Conclusion

    By right now, almost all nations in the world have some kind of legislation addressing rape with developed countries taking the lead with comprehensive and balanced laws. It is argued that rape is a crime that is challenging to investigate: more often than not, the contents of a case are distilled to whether the victim provided consent or not. As one may imagine, consent can take both verbal and non-verbal forms, which makes it straining to prove anything. In Canada, rape shield laws bar the protection from examining the particular victim’s sexual prior to utilize her sex activities as proof. It contributes in order to the fight towards victim-blaming and offers the potential associated with relieving distress within victims. However, this is not obvious how rape safeguard laws deal along with social networking serving because a supply of alleged proof. Various other shortcomings consist of the compatibility associated with rape shield laws and regulations with symmetry laws and regulations. Lastly, some specialists think that the particular rape shield sustains the purity misconception.

    References

    Birdsell, B. (2014). Reevaluating gag orders plus rape shield laws and regulations in the Web age: Just how can all of us better protect sufferers. Seton Hall Legal Journal, 38, 71.

    The Canadian Press. (2019). Supreme Court convicts man barred through cross-examining victim simply by rape shield legislation. Web.

    Ellison, L., & Munro, V. Electronic. (2014). A ‘special’delivery? Exploring the effect of screens, live-links and video-recorded proof on mock juror deliberation in afeitado trials. Social & Legal Studies, 23(1), 3-29.

    Imwinkelried, E. J. (2015). Should rape safeguard laws bar evidence that this alleged sufferer made similar, fake rape accusations within the past: Fair symmetry with the rape sword laws. The University of Pacific Law Revue, 47, 709.

    Langton, L., & Truman, J. L. (2014). Socio-emotional impact of violent crime. US Department of Justice, Office of Justice Programs, Bureau of Justice Statistics.

    Loewen, K. (2015). Rejecting the purity myth: Reforming rape shield laws in the age of social media. UCLA Women’s LJ, 22, 151.

    Mgoqi-Mbalo, N., Zhang, M., & Ntuli, S. (2017). Risk factors for PTSD and depression in female survivors of rape. Psychological Trauma: Theory, Research, Practice, and Policy, 9(3), 301.

    Powell, A. (2016). ‘Be careful posting images online’ is just another form of modern-day victim-blaming. Web.

    Van der Bruggen, M., & Grubb, A. (2014). A review of the literature relating to rape victim blaming: An analysis of the impact of observer and victim characteristics on attribution of blame in rape cases. Aggression and Violent Behavior, 19(5), 523-531.

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