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Child Sexual Abuse Revised Laws – Research

Child Sexual Abuse Revised Laws – Research

(Source: http://www.victimsofviolence.on.ca/rev2/index.php?option=com_content&task=view&id=331&Itemid=21)

Sexual abuse of a child is one of the most despicable acts that can be committed. The true extent of child sexual abuse in Canada has only come to light in the past two decades. The Badgley Report (1984) provided a cross Canada study on the abuse of children. It revealed horrifying statistics about how prevalent these crimes are in Canada. It stated 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 were startling. The Badgely 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 the 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 it just 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 offences. 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 towards sexual abuse of children.

 

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 as follows:

1.    Gender bias – many offences were only applicable to female victims and male offenders. The reality was that there are many young boys out there who were sexually abused, and they were not protected.

2.    Limited range of sexual activity – many offences only covered vaginal intercourse, and did not encompass the many different types of sexual molestation, such as touching or fondling. Invitation was not an offence.

3.    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 the victim.

4.    Time restrictions – the offence had to be prosecuted within a year of the offence. Many victims take many years to gather up the courage to report their victimization.

 

Current Child Sexual Abuse Laws

In 1988, changes were made to the Criminal Code in an effort to combat some of the problems. As child sexual abuse does not always involve intercourse, changes were made to the law to include other sexual behaviour. 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 offence to touch a child under 14 years of age. The touching can be directly or indirectly, and can be with a body part or an object. The touching must be for a sexual purpose. The maximum punishment for this offence is a term no longer than 10 years.

 

Invitation to Sexual Touching (Section 152 of the C.C.C.)

This section makes it an offence to invite, counsel or incite a child under 14 years of age to touch another for a sexual purpose. This touching can be direct or indirect, with a part of the body or an object. The maximum punishment for this offence is a term no longer than 10 years.

 

Sexual Exploitation (Section 153 of the C.C.C.)

This section makes it an offence for anyone who is in a position of trust or authority over a child, to sexually touch in any way, or to invite, counsel or incite a young person to touch another person in any way. The maximum punishment for this offence is a term no longer than 10 years.

 

Incest (Section 155 of the C.C.C.)

This section makes it an offence to have sexual intercourse with a blood relation. A blood relation is defined as parent, child, brother, sister, grandparent, grandchild, half-brother or half-sister. To be convicted of this offence, the offender must have had sexual intercourse (vaginal penetration) with an individual that was known to be a blood relative. The maximum punishment for this offence is a term no longer than 14 years.

 

Sexual Assault (Sections 271, 272 & 273 of the C.C.C.)

This section is not aimed specifically at children. This 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 part 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.

 

Parole Conditions

Offenders convicted of a sexual offence 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 14 years. They may also be prohibited from seeking or obtaining employment in a position of trust or authority over children. This ban can be a lifetime ban. The decision is made by the court whether or not there will be a ban and how long it will be. The maximum sentence is a term no longer than 2 years.

 

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 that peace bond in order to ensure good conduct. Many conditions include that the defendant avoid contact and not go near 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 then a criminal offence 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.

 

Consent Issues

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 sexual consent in Canada to 16 from 14, the first time it had been raised since 1892. A close in age exemption allows youth aged 14 to 16 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 18. 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, such as in the case of a custody dispute.

Children often find it very difficult to testify in open courtrooms. It is not difficult to imagine that children would be very nervous and intimidated in a courtroom atmosphere and setting. This kind of testimony is often embarrassing for children to talk about in private, let alone to disclose to a courtroom full of strangers.

Children also have troubles 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. It may be hard to defend oneself if the victim cannot give you specifics.

Children may be afraid of retaliation from the accused since threats are often a part of the accused’s attempts to keep the abuse a secret. A support person or relative can be permitted to sit near the child while he/she is testifying. Sometimes booster seats are used, children are permitted to bring in a toy or blanket, and props such as dolls and drawings can be used to assist the child.

However, studies have been conducted in Canada, the United States, Australia, England, Ireland and Scotland that 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 revealed that although children engage in imaginative play, they are capable of discerning fact from fantasy in the context of witnessed events.

Despite issues raised with child testimony, under the Canada Evidence Act, persons who are under the age of fourteen is presumed to have the capacity to testify. Also, children under that age of fourteen whose mental capacity is challenged may give testimony after the court has deemed that the child understands the nature of an oath or solemn affirmation and is able to communicate the evidence.

 

Use of Screens/Videotapes

Children under 18 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 much more likely than 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 defense 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 accused to cross-examine the child.

Young victims can also be videotaped in advance of the trial, and this tape can then be 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 defense 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.

 

Reporting Abuse

In the past it was a requirement by law that a complaint of sexual abuse must be reported within one year of the offence. It is known now that it often takes years for people to build up the courage to report abuse, and the law has 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 didn’t 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. Judges often have difficulty convicting in such cases. The following remarks made by a judge involving a sexual abuse case, where 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.

Obviously, problems still plague the legal system in terms of reporting abuse, as can be empathized. 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.

 

Corroboration

The law has been changed with respect to corroboration. Corroboration is basically some sort of confirmation that some fact or statement is true through some sort of evidence. It used to be that a person could not be convicted of a sexual offence 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 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 in which he/she should not 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. Therefore, the fact that corroboration is no longer required is good, it does not solve all of the problems of getting more convictions.

 

Past Sexual History

For young children, past sexual history is not an issue, but for older children, it may be. Prior to 1992, the defendant who was accused of a sexual offence 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 items, 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. It may more commonly be referred to as Canada’s “rape shield law.”

 

Publication Bans

A victim of a sexual offence, or any child victim can have a publication ban put in place to prevent the release of their identity. For cases where the release of the accused person’s name may indicate the identity of the child victims, a ban can be placed on that of the accused person as well. The publication ban is the decision of the child or the child’s parents. It is not automatic. The judge may also remove the public from the courtroom if the child desires.

 

Sentences for Child Sexual Abusers

While offences for sexually molesting children carry a maximum sentence of 10 years, and incest carries a possible 14 year sentence, the reality of sentences is that they seem quite low. He following cases illustrates this well:

1.    Bill Bradley – convicted of molesting (including rape and sodomy) 19 children – 6 years.

2.    Wray Budreo – convicted of molesting 3 children (30 year history of molesting boys with more than 22 convictions) – 6 years

3.    Cecil Miller – molested 8 children (including rape and sodomy, with one victim still in diapers) – 7 years

4.    Man convicted of sodomizing and molesting his stepdaughter for more than two years – 23 months because the judge said he “spared her virginity.”

5.    man convicted of sexually assaulting two 12 year old girls – $500 fine, 45 days in jail to be served on weekends (he was drunk at the time)

6.    Donald and Sandra Rutter – convicted of abusing children from the ages of 8 to 13 – 5 years for Donald and 1 year for Sandra

7.    Dr. Masura Fujibayashi (a dentist) – convicted of 17 counts of sexual/indecent assault against child patients from 1962 to 1988 (estimated over 450 victims) – 4 years

8.    Msgr. John Monegahan (Catholic priest) – 14 counts of indecent assault; 3 counts of sexual assault (victims as young as 6; estimated over 250 victims) – 4 years

These are just a few cases that illustrate the realities of the kinds of sentences that child abusers get. Six and seven year sentences seem to be on the high end of sentences. It must also be noted that these people can apply for parole after 1/3 of their sentence has been served, and they will be released automatically after 2/3 of their sentence has been served on mandatory supervision. For Bill Bradley, his entire sentence works out to less than 4 months for each victim; if he gets out in 2 years, it will mean less than 2 months for each victim.

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. Under court order, an offender may be required to register before the release of 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.

 

Effects of the Changes

A study of the effects of the changes made to the law governing child sexual abuse in 1988 was done in 1992. It found that more and more cases were being reported. More charges were being laid due to the fact that the law now covers more 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 are successful.

However, it is still a difficult to obtain a complete picture of child abuse in Canada, and even harder regarding child sexual abuse. A child who is being abused is usually in a position of dependency and the child will not, are can not, tell anyone what has happened to them. The child may endue the abuse for a long time before reporting it, or even worse, never report it. The most recent study done in Canada on child abuse, the Canadian Incidence Study of Reported Child Abuse and Neglect (1998) helps us understand the topic a little more.

The study collected information on over 7 000 child welfare investigations conducted across the country during a three month period in 1998 from child welfare authorities. The study estimated that there were 135 573 child maltreatment investigations in Canada in 1998 and a little more than one in ten of those investigations involved sexual abuse as the primary or secondary reason for investigation, estimating that more than 15 000 children were sexually abused in some way. 21% of those cases were substantiated, 15% were suspected and 64% remained unsubstantiated, which is terrifying that so few are ever convicted of an actual criminal offence.

Conclusion

Advancements in the laws governing the sexual abuse of children have improved, but attitudes about victimization by the system are much slower to change. Until it is accepted that few children lie about being sexually abused, advancements in the battle against child sexual abuse will be difficult. Some changes that are proposed are adding new child-specific offences to the Criminal Code, ensuring that the Criminal Code provisions concerning age of consent are 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.

 

References

1.     Badgely Report. (1984). Report of the committee on sexual offences against children and youth.

2.     Bessner, R. (2002). The voice of the child in divorce, custody and access proceedings. Retrieved October 17, 2007, from Department of Justice Canada Web site: http://www.justice.gc.ca/en/ps/pad/reports/2002-fcy-1e.pdf.

3.     Department of Justice Canada. (1992). Criminal code. Retrieved October 17, 2007, from Department of Justice Canada Web site: http://laws.justice.gc.ca/en/showdoc/cs/C-46///en?page=1.

4.     Department of Justice Canada, Research Section. (1992). A review of the implementation of child sexual abuse legislation in selected sites. Joseph P. Hornick and Floyd Bolitho (Editors). Ottawa: Department of Justice Canada.

5.     Department of Justice Canada. (2007). Child abuse: A fact sheet from the department of justice Canada. Retrieved October 17, 2007, from Department of Justice Canada Web site:http://www.justice.gc.ca/en/ps/fm/childafs.html.

6.     Fraser Commission Report. (1985).

7.     Government of Canada. (1986). A guide to the federal government’s response to the reports on sexual abuse of children, pornography and prostitution.

8.     Graham, C. F. (1990). Sequestration screens for young complainants in criminal prosecution. Criminal Law Quarterly 32.

9.     Jiwa, S. & Olgilvie, C. (1993). Sexual predators. B.C. Province Special Report, February.

10.   Marshall, W. & Barrett, S. (1991). Criminal neglect: Why sex offenders go free. Toronto: Seal Books.

11.   National Association of Women and the Law. (1993). Four year review of the act to amend the criminal code and the Canada evidence act.

12.   National Clearinghouse on Family Violence. (2006). National clearinghouse on family violence. Retrieved October 17, 2006, from Public Health Agency of Canada Web site: http://www.phac-aspc.gc.ca/ncfv-cnivf/familyviolence/index.html.

13.   Newsweek. (1988, May 14). Children and the courts. Newsweek.

14.   Ron Jourard Criminal Lawyer. (2007). Assault: Ontario criminal lawyer discusses peace bonds. Retrieved October 17, 2007, from Ron Jourard Criminal Lawyer Web site: http://www.defencelaw.com/assault-1.html.

15.   Royal Canadian Mounted Police. (2005). Fact sheet: National sex offender registry. Retrieved October 17, 2007, from Royal Canadian Mounted Police Web site: http://www.rcmp-grc.gc.ca/techops/nsor/index_e.htm.

16.   Rogers, R. (1990). Reaching for solutions: The report of the special advisor to the minister of health and welfare on child sexual abuse in Canada. Retrieved October 17, 2007, from Public Health Agency of Canada Web site: http://www.phac-aspc.gc.ca/ncfv-cnivf/familyviolence/archives/html/1reach2.htm.

17.   Trocmé, N., MacLaurin, B., Fallon, B., Daciuk, J., Billingsly, D., Tourigny, M., Mayer, M., Wright, J., Barter, K., Burford, G., Hornick, J., Sullivan, R. & McKenzie, B. (2003). Canadian incidence study of reported child abuse and neglect: Final report. Retrieved October 17, 2007, from Public Health Agency of Canada Web site: http://www.phac-aspc.gc.ca/publicat/cisfr-ecirf/pdf/cis_e.pdf.

18.   Wells, M. (1990). Canada’s law on child sexual abuse: A handbook. Ottawa: Communications and Public Affairs, Department of Justice Canada.

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