Reimagining sexual assault law in Canada: a feminist, trauma-informed approach to restorative justice

Abstract

Every person should have the right to live their life free of violence. However, women and girls in Canada experience sexual assault at disproportionate rates. Systemic violence against them remains commonplace. The crime of sexual assault is gendered, underreported and born disproportionately by communities who face multiple barriers to justice, such as Black, Indigenous and immigrant women, women of colour and women with disabilities. Race, ethnicity, Indigeneity, gender, social location, sexual identity, geography, age and ability, for example, are aspects of one’s identity that prevent many groups of people from accessing justice through the criminal justice system. The criminal justice system also perpetuates systemic barriers to justice and most often will further the trauma, harm and inequities among those who engage with it. For all their dimensions and their impacts on peoples lives, sexual assault cases deserve to be treated with care not only throughout the criminal justice system but beyond it. However, myths and stereotypes about women and sexual assault still play a substantive role in the criminal justice system in Canada, despite years of substantive repeals and change. Decades of law reforms did not make a real difference in how victim-survivors of sexual assault experience the criminal justice system. The criminal justice system fails and has been historically failing victim-survivors of sexual assault. Further, a justice response for victim-survivors of sexual assault does not align with carceral punitivism. Rethinking appropriate responses to sexual assault cases and alternatives to the criminal justice system has become a necessity. The appropriateness of restorative justice in cases of gendered violence, including sexual assault, is controversial. The critiques of using restorative justice in the context of sexual assault in Canada are substantial, especially from the perspective of some feminists and Indigenous-focused scholars. Through feminist and trauma-informed lenses, that are intersectional, decolonial and anti-carceral at their roots, a restorative justice theory and practice for sexual assault cases is possible and can eliminate and/or mitigate the risks associated with restorative justice processes in cases of gendered violence. A reimagined restorative justice provides a viable and transformative path to justice for those who choose this approach to justice and offers a degree of hope, particularly for victim-survivors who face multiple and intersecting barriers to justice.