Abstract
A major challenge in adjudicating criminal cases of sexual assault concerns the typical characteristics of sexual offences (for example, the frequent lack of physical harm to victims and the usual absence of obvious antisocial conduct by offenders). It has been claimed that these features are often used to discount the seriousness of sexual offences. Moreover, the sexualised aspects of these crimes are viewed as undermining recognition of their inherent violence, such that references to the sexual motives of offenders or to the sexual details of the offences guarantee that they will not be taken seriously. Some feminist theorists and legal critics have argued that sexual assaults, including child sexual abuse, must be seen as acts of power and violence; both offences and offenders’ motives must therefore be described in terms of violence. Such claims are frequently offered in the context of social justice considerations related to judicial decision-making. However, there are a number of problems with both the arguments and the analyses on which they are based. We first consider Canadian law, review some relevant Canadian literature and discuss some of these problems. We then further explore these concerns in relation to our previous analyses of Canadian judicial sentencing decisions in cases of child and adolescent sexual assault. The chapter concludes with a discussion of the implications for the sex-versus-violence debate in theorising about sexual crimes and for social justice issues in sentencing.
This research was supported by the Social Sciences and Humanities Research Council of Canada.
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References
Bavelas, J. and Coates, L. (2001) Is it sex or assault? Erotic versus violent language in sexual assault trial judgments. Journal of Social Distress and the Homeless, 10 (1): 29–40.
Boyle, C. (1985) Sexual assault and the feminist judge. Canadian Journal of Women and the Law, 1: 93–107.
Brownmiller, S. (1975) Against our will: Men, Women, and Rape. New York: Simon and Schuster.
Cahill, A. J. (2000) Foucault, rape, and the construction of the feminine body. Hypatia: a Journal of Feminist Philosophy, 15 (1): 43–63.
Coates, L. (1997) Causal attributions in sexual assault trial judgments. Journal of Language and Social Psychology, 16 (3): 278–96.
Coates, L., Bavelas, J. B. and Gibson, J. (1994) Anomalous language in sexual assault trial judgments. Discourse & Society, 5 (2): 191–205.
Coates, L. and Wade, A. (2004) Telling it like it isn’t: Obscuring perpetrator responsibility for violent crime. Discourse & Society, 15 (5): 499–526.
Doob, A. N. (1999) Sentencing reform: Where are we now? In J. V. Roberts and D. P. Cole (eds), Making Sense of Sentencing. Toronto: University of Toronto Press pp. 349–63.
Fischer, D. G. and McDonald, W. L. (1998) Characteristics of intrafamilial and extrafamilial sexual abuse. Child Abuse & Neglect, 22 (9): 915–29.
Kelly, L. (1988) Surviving Sexual Violence. Minneapolis: University of Minnesota Press.
MacKinnon, C. (1987) Feminism Unmodified. Cambridge, Mass: Harvard University Press.
MacKinnon, C. (1989) Toward a Feminist Theory of the State. Cambridge, Mass: Harvard University Press.
MacMartin, C. (2004) Judicial constructions of the seriousness of child sexual abuse. Canadian Journal of Behavioural Science, 36 (1): 66–80.
MacMartin, C. and Wood, L. A. (2005) Sexual motives and sentencing: Judicial discourse in cases of child sexual abuse. Journal of Language and Social Psychology, 24 (2): 139–59.
Matoesian, G. M. (1993) Reproducing Rape: Domination through Talk in the Courtroom. Cambridge: Polity Press.
Mohr, R. M. (1994) Sexual assault sentencing: Leaving justice to individual conscience. In J. V. Roberts and R. M. Mohr (eds), Confronting Sexual Assault: a Decade of Legal and Social Change. Toronto: University of Toronto Press. pp. 157–91.
Pomerantz, A. (1986) Extreme case formulations: A way of legitimizing claims. Human Studies, 9 (2–3): 219–29.
Potter, J. and Edwards, D. (2001) Discursive social psychology. In W. P. Robinson and H. Giles (eds), The New Handbook of Language and Social Psychology. Chichester: Wiley. pp. 103–18.
Renner, K. E., Alksnis, C. and Park, L. (1997) The standard of social justice as a research process. Canadian Psychology, 38 (2): 91–102.
Roberts, J. V. and von Hirsch, A. (1999) Legislating the purpose and principles of sentencing. In J. V. Roberts and D. P. Cole (eds), Making Sense of Sentencing. Toronto: University of Toronto Press. pp. 48–62.
Roberts, R. V. and Mohr, R. M. (eds) (1994) Confronting Sexual Assault: a Decade of Legal and Social Change. Toronto: University of Toronto Press.
Ruby, C. C. (1994) Sentencing (4th edn). Markham/Vancouver: Butterworths.
Sas, L. D., Wolfe, D. A. and Gowdy, K. (1996) Children and the courts in Canada. Criminal Justice and Behavior, 23 (2): 338–57.
Segal, L. (2001) Nature’s way? Inventing the natural history of rape. Psychology, Evolution & Gender, 3 (1): 87–93.
Spohn, C. C. (1994) A comparison of sexual assault cases with child and adult victims. Journal of Child Sexual Abuse, 34 (4): 59–78.
Sykes, J. B. (ed.) (1976) The Concise Oxford Dictionary of Current English (6th edn). Oxford: Oxford University Press.
Tang, K.-L. (1998) Rape law reform in Canada: The success and limits of legislation. International Journal of Offender Therapy and Comparative Criminology, 42 (3): 258–70.
Wood, L. A. and Kroger, R. O. (2000) Doing Discourse Analysis: Methods for Studying Action in Talk and Text. Thousand Oaks, Calif.: Sage.
Woolgar, S. and Pawluch, D. (1985) Ontological gerrymandering: The anatomy of social problems explanations. Social Problems, 32 (3): 214–27.
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MacMartin, C., Wood, L.A. (2007). Sentencing Sexual Abuse Offenders: Sex Crimes and Social Justice. In: Cotterill, J. (eds) The Language of Sexual Crime. Palgrave Macmillan, London. https://doi.org/10.1057/9780230592780_10
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DOI: https://doi.org/10.1057/9780230592780_10
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