This webinar is brought to you by CLEONet cleonet

1. This webinar is brought to you by CLEONet www.cleonet.ca CLEONet is a web site of legal information for community workers and advocates who work with low-income and disadvantaged communities in Ontario. 2010, Community Law School (Sarnia-Lambton) Inc.

2. About our presenter… Long-time educator, activist and lawyer, Zahra Dhanani is the Legal Director for the Metropolitan Action Committee on Violence Against Women and Children (METRAC), an agency that ensures access to justice for women, youth and children facing the threat of violence.

3. Sexual Assault and Harassment Presented by: Zahra Dhanani Legal Director, METRAC "Safer for Women, Safer for Everyone"

4. Who we are • METRAC The Metropolitan Action Committee on Violence Against Women and Children www.metrac.org • Ontario Women’s Justice Network www.owjn.org "Safer for Women, Safer for Everyone"

5. Sexual Assault Court Watch • Sexual Assault and Harrassment Public Legal Education Materials • Trainings • Public Education "Safer for Women, Safer for Everyone"

6. Today’s Objective • To provide accessible, general information about the law regarding issues of sexual assault and harassment. • I can answer general questions about the law, but I CANNOT provide legal advice. • If you require legal advice, we can refer you to lawyers in practice or legal clinics. "Safer for Women, Safer for Everyone"

7. Today’s Objective • There is NO right or wrong response! • This presentation is not intended to encourage you to make a particular decision. • Key: access to information to make well-informed decisions.

8. Overview (3) Social change What can you do to help end violence against women and children? No means No (4) Resources (1) Sexual Assault • What is it? • Social context • Law • Legal options (2) Sexual Harassment • What is it? • Social context • Law • Legal options "Safer for Women, Safer for Everyone"

9. Sexual Assault What is it? • An unwanted sexual act done by one person to another. • It can include everything from an unwanted kiss or touch of a sexual nature, to forced penetration, vaginal or oral. • There does nothave to be any physical injury. • Force, threats, intimidation or coercion to engage in sexual activity that is undesired may be sexual assault.

10. NO MEANS NO UNLESS YOU HAVE SAID YES THERE IS NO CONSENT "Safer for Women, Safer for Everyone"

11. Social Context • Sexual assault is an equality issue. • Estimated that 1 in 4 women will be sexually assaulted in Canada during her lifetime. • More than 40% of women report having experienced 1 sexual assault in their lifetime, this number increases if you add incest and childhood sexual abuse. • In 2007, over half of victims reported to police were under 18 years old. • Most under-reported crime (approx. 1 in 10 reported). • Victimization occurs in diverse communities, including LGBTQ communities, women with disabilities, racialized women and aboriginal women. "Safer for Women, Safer for Everyone"

12. Some Myths and Realities Myth Women cannot be raped by men they know. Reality The majority of sexual assaults are committed by men against women they know. It does not matter how well you know someone, if you do not want to have sexual contact with him and he makes you, he has sexually assaulted you. "Safer for Women, Safer for Everyone"

13. Some Myths and Realities Myth Sexual assaults only happen in “bad” areas and at night. Reality Sexual assaults can happen anywhere and at any time. More than half of sexual assaults take place in someone’s home. Men who sexually assault women do not discriminate about where they assault them. "Safer for Women, Safer for Everyone"

14. Some Myths and Realities Myth Elderly women and women with disabilities do not get Raped. Reality Sexual assault is a gender-based attack and does not discriminate based on age, race, religion, sexual orientation, profession and/or ability. Sexual assault is rooted in power and control, not sex. "Safer for Women, Safer for Everyone"

15. Current News • B.C. girl drugged and gang raped at weekend rave, and photos of assault posted on Facebook. • In Calgary, police charged a 16 year old boy with sexually assaulting a 12 year old girl in a school field in front of their peers. • In Toronto, two women sexually assaulted hours apart in late August. One of the women was believed to be homeless. "Safer for Women, Safer for Everyone"

16. The Law The Criminal Code in Canada • Assault - s. 265 • Criminal Harassment (aka. “stalking”) - s. 264 • Uttering threats - s. 264.1 • Unlawfully causing bodily harm - s. 269 • Sexual assault - s. 271 • Sexual assault with a weapon, threats to a third party or causing bodily harm - s. 272 • Aggravated sexual assault - s. 273 • Meaning of “consent” - s. 273.1 • Forcible confinement - s. 279(2) "Safer for Women, Safer for Everyone"

17. The Law • Unless you say “yes,” you have not consented. • Together, your actions, body language and words can communicate that you are saying “no.” • It does not matter if you have had sex with the person before, if you are married, or if you are a sex worker – without your consent, it is sexual assault. "Safer for Women, Safer for Everyone"

18. The Law The Criminal Code in Canada Child Victims • Sexual interference - s. 151 (under 16 years old) • Invitation to sexual touching - s. 152 (under 16 years old) • Sexual exploitation - s. 153 (position of trust or authority) • Sexual exploitation of person with a disability - s. 153.1 (position of trust or authority) • Incest - s. 155 "Safer for Women, Safer for Everyone"

19. Questions ? "Safer for Women, Safer for Everyone"

20. Should I call the police? • If you are in immediate danger: call 911 • If you are injured: call 911/go to the hospital • If you are NOT in immediate danger, think about whether you want to call police • Some women do not report sexual assault to police because of shame, fears, barriers, revictimization in criminal process, etc. • Criminal process most commonly used legal process • Key: Reporting a sexual assault to the police should be your own decision • Don’t let anyone push you into reporting it "Safer for Women, Safer for Everyone"

21. The Criminal Justice System • The charges police lay will depend on what law is at the time of the offence, not what law is now: • Criminal proceedings determine guilt in the legal sense • People who commit sexual assaults are not always found guilty in court • A not guilty verdict does NOT mean that the victim is lying "Safer for Women, Safer for Everyone"

22. The Criminal Justice System • Reasons why criminal courts don’t always get it right: • only evidence is one person’s word against another’s • negative societal myths about sexual assault • When deciding whether to report: • try not to be intimidated by the system • remember there is a lot of support available, e.g. victims advocates, Crown attorneys, judges, police officers, and others. • Knowledge is power "Safer for Women, Safer for Everyone"

23. The Criminal Justice System • If contacting police later... • support person first • Sexual Assault Squad • The charges are then laid by police • The Crown: • Crown Attorney represents society, not victim • if Crown wants you to act as a witness, you will receive a subpoena  you must appear in court • meet with the Crown before any hearings "Safer for Women, Safer for Everyone"

24. The Criminal Justice System Initial contact with police • describe what happened to you • ask for a break if you need one • you do not need to give the entire report immediately "Safer for Women, Safer for Everyone"

25. The Criminal Justice System Having a medical exam done is up to you • Advantages • physical evidence that can be used at trial • tests for pregnancy, STIs • Disadvantages • physical discomfort and emotional trauma from tests  Try bringing a trusted friend or family member along "Safer for Women, Safer for Everyone"

26. The Criminal Justice System Medical exam • rape kit • vaginal and/or oral examination • search for signs of struggle, bruises, scratches • blood test • once the exam is completed, the kit becomes police property "Safer for Women, Safer for Everyone"

27. The Criminal Justice System Follow up with the police to determine whether they will investigate your sexual assault claim. Remember: • DO NOT answer questions about your sexual history that are not relevant to your claim • Bring support person/s "Safer for Women, Safer for Everyone"

28. The Criminal Justice System • Do not sign your statement unless you agree with everything written on the page • Charges will be laid if police are satisfied that they have a case against your attacker • Accused will be in jail until released on bail • bail condition: cannot come into contact with you • special conditions • contact police if any of the conditions are broken "Safer for Women, Safer for Everyone"

29. The Criminal Justice System • you will NOT be an active part of the process • delays for adjournments • it is not necessary to attend preliminary hearings  Victim /Witness Assistance Program (VWAP) can keep you up to date on what happens • to find the VWAP office nearest you, call the Victim Support Line toll-free: 1-888-579-2888 "Safer for Women, Safer for Everyone"

30. The Criminal Justice System Limitation period • You can report a sexual assault to the police no matter how long ago it happened. • They will conduct an investigation to determine whether or not to lay charges against the person who assaulted you. • Sexual assaults that happened some time ago can be difficult to prosecute (memories fade, lack of evidence, impossible to locate offender, policies priorities). • If you want to pursue criminal charges, you should consider speaking with your local sexual assault centre so you will have an advocate with you when you go to the police. "Safer for Women, Safer for Everyone"

31. The Trial – Victim’s Personal Information • Sexual history • Can only be raised if directly relevant • E.g.: if the victim and the accused have a sexual past • Personal records • Diaries, therapists’ notes

32. Women and Criminal Law Requesting the victim’s private records requires: • The accused to serve all parties (the Crown, the victim and anyone whose records the defence wants to see) with a written Notice of Application in which the accused must set out what records they want and why

33. Women and Criminal Law The Criminal Code requires the judge to consider a number of factors in deciding whether or not the records should be produced: • the extent to which the record is necessary for the accused to make a full answer and defence • the probative value of the record • the nature and extent of the reasonable expectation of privacy with respect to the record • whether production of the record is based on a discriminatory belief or bias • the potential prejudice to the personal dignity and right to privacy of any person to whom the record relates • society’s interest in encouraging the reporting of sexual offences • society’s interest in encouraging the obtaining of treatment by complainants of sexual offences, and • the effect of the determination on the integrity of the trial process

34. Relevance and Records A list of assertions that might be made by the accused that are insufficient on their own to warrant production of records: • That the record relates to medical or psychiatric treatment, therapy or counseling that the complainant or witness has received or is receiving • That the records may disclose a prior inconsistent statement of the complainant or witness • That the record may relate to the credibility of the complainant or witness • That the record relates to the sexual activity of the complainant with any person, including the accused • That the record relates to the complainant’s sexual reputation

35. The Criminal Justice System General outcomes - verdict • if accused is found not guilty case is over • bail conditions are removed • if accused is found guilty • case moves to sentencing stage • Victim impact statement • only submit after guilty verdict; otherwise subject to disclosure rules and shared with defence General outcomes - appeal • Crown or defence can file for appeal within 30 days "Safer for Women, Safer for Everyone"

36. Questions ? "Safer for Women, Safer for Everyone"

37. Criminal Injuries Compensation Board (CICB) • financial compensation for crime committed against you • if accepted, hearing held (usually) • consideration: medical expenses, lost wages, pain and suffering • When one person is injured or killed as a result of a violent crime, the maximum award is $25,000. • must apply within two year of crime, but can seek extension (esp. if under 18 at time) • perpetrator does NOT need to be convicted or charged, though better • http://www.cicb.gov.on.ca "Safer for Women, Safer for Everyone"

38. Other Legal Options Civil Claims • Advantages • greater chance of success • monetary rewards • tell your story in court – victim has more control during proceedings • Disadvantages • expensive and lengthy • regular direct contact with perpetrator • only if perpetrator has money, e.g. institutions or class actions "Safer for Women, Safer for Everyone"

39. Other Legal Options • Civil claims • assault, battery, intentional infliction of emotional distress • sue for negligence if led to sexual assault • NO criminal responsibility • Focus: compensating the victim for damages suffered • NO Crown Attorney Victim and Defendant have own lawyers "Safer for Women, Safer for Everyone"

40. Other Legal Options Limitation period • Under the Limitations Act, the basic limitation period of two years does not apply to claims based on sexual assault. • There is no limitation period for a claim if, at the time of the sexual assault, one of the parties to it was in a position of trust or authority in relation to the claimant. "Safer for Women, Safer for Everyone"

41. Other legal options Workplace Assault • If your assault occurred at work, you may pursue a claim through • your union • Canada Human Rights Commission • Ontario Human Rights Tribunal • Ministry of Labour – Bill 168 • internal workplace mechanisms • sue your employer in civil court for vicarious liability • these do NOT replace a criminal charge "Safer for Women, Safer for Everyone"

42. Other legal options Assaulted by a Professional • e.g. doctor, therapist, teacher • courts will consider power relationships • file a complaint with professional administrative board, e.g. The College of Physicians and Surgeons of Ontario • counselling, suspension, revoke right to work • whether or not criminal charge filed "Safer for Women, Safer for Everyone"

43. Questions ? "Safer for Women, Safer for Everyone"

44. Sexual Harrassment  90% of all women working outside of the home will experience sexual harassment at some point in their working lives. "Safer for Women, Safer for Everyone"

45. Sexual Harassment What is it? • Discrimination based on sex. • An unwanted conduct or comments of a sexual nature in public environments, e.g. school, work, etc. • It does not always have to be of a sexual nature. • It may include harassing conduct or comments made to an individual because of their gender. • There does not have to be an intention to discriminate. "Safer for Women, Safer for Everyone"

46. Social Context • Sexual harassment and sexual assault share the same social realities of gender inequality. • Often relates to an attempt to assert power • Relationships of power are particularly evident in employment settings. • Victimization also occurs in diverse communities, including LGBTQ communities, women with disabilities, racialized women and aboriginal women. "Safer for Women, Safer for Everyone"

47. Recent News • B.C. human rights tribunal will hear a complaint from bartender who says she was forced to dress a certain way, and have hair and make-up done with “sex appeal.” • Two women made sexual harassment claims against former Penguin Canada President, David Davidar. "Safer for Women, Safer for Everyone"

48. The Law • In Canada, sexual harassment falls under human rights law in the Canadian Human Rights Act (CHRA) and the provincial Human RightsCode, e.g. Ontario Human Rights Code (OHRC). • To pursue a claim under the CHRA, you must apply to the Canadian Human Rights Commission. • To pursue a claim under the OHRC, you must apply to the Human Rights Tribunal of Ontario. "Safer for Women, Safer for Everyone"

49. The Law • OHRC applies to matters within provincial (not federal) jurisdiction.  • OHRC provides protection in five areas of social interaction: • services, goods and facilities • occupancy of accommodation • contracts • employment • membership in vocational associations, e.g. trade unions "Safer for Women, Safer for Everyone"

50. The Law • Code provisions attempt to create climate of understanding, respect and dignity • Fundamental human right: Code establishes right to equal treatment without discrimination based on sex. • Other prohibited grounds, e.g. race, disability, marital status, may be interlock with issues of gender. "Safer for Women, Safer for Everyone"