Sexual Assault Sentencing: A Game of Diverging Interests Among Male and Female Judges? - Western OJS
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Journal for Social Thought 6(1) • April 2022
Sexual Assault Sentencing:
A Game of Diverging Interests Among Male and Female Judges?
Melania Soudouk
University of Guelph, Guelph, ON, Canada
msoudouk@gmail.com
The debilitating judicial process experienced by victims of sexual assault largely prevent women from seeking
justice for sexual offences. Sexual assault remains the most underreported crime, in part due to distasteful
stereotypes that operate to discredit the victim and favour the offender. Some scholars predict that the patriarchal
structures of gender influence judicial decision making. People who identify as female are familiar with how
patriarchal ideals discriminate against women and are better situated to understand the extend of harm that
accompanies sexual violence; as such, women are better suited to preside over cases of a sexual nature. The
following article investigates how male and female judges vary in their sentencing practices for sexual offenders
to determine to what extent gender makes a difference. By conducting an in-depth content analysis, this article
presents fascinating findings pointing to the diverging mitigating and aggravating considerations granted to
assailants of sexual assault.
KEYWORDS: Sentencing; Sexual Assault; Gender and the Judiciary; Gender Inequality
Introduction tion the intention of women during their interactions
with the accused, often painting women as seductresses
he #MeToo movement has prompted a rise in or liars who initially invite sexual behaviour, only to
T advocacy that strives for social change and jus-
tice for victims (Fletcher and Star, 2018). Social
movements related to feminist ideologies have changed
change their minds afterwards (Craig, 2016). The meth-
ods employed by the justice system when addressing
sexual assault often dissuade women from reporting
how politicians and public figures regard women’s incidents and ultimately prevent them from obtaining
rights issues (Fletcher and Star, 2018; Rasmussen and equitable justice (Craig, 2016).
Yaouzis, 2020). An influx of protests and lobbying in
recent years has forced federal and international lev- The possibility of aggressive cross-examination
els of government to address gender inequality found practices from the defence counsel and the use of lan-
within social, economic, and legal institutions which guage evoking blame on the victim (i.e., referring to the
maintain patriarchal and misogynistic ideals (Fletcher complainant as a prostitute) casts doubt on a victim’s
and Star, 2018). At all levels, change has been slowly credibility and often prevents women from seeking jus-
introduced, more punitive consequences have been tice. Even though judges are obligated to balance the
implemented for work harassment claims, female rep- claims of victims with the due process rights of the
resentation in positions of power has risen, and judicial accused, this legal standard typically translates into
bodies have begun to address how assault survivors a negative outcome for victims (Craig, 2016). Factors
are treated in court. Notably, Bill C-3 was adopted in such as a judge’s race, socio-economic background and
the House of Commons to address the issue of sex- gender can influence case outcomes (Rachlinski and
ual assault underreporting. Although, to a certain Wistrich, 2017). For the purpose of this study, how-
extent, these changes have improved the experience ever, gender will be the central theme analyzed. As
for women, the law largely continues to discriminate. previous studies have predicted that the gender of a
Women’s testimonies are discredited during legal pro- judge impacts decision making, this paper seeks to
ceedings and the blame of the crime is attributed to expand and investigate this matter further. A relevant
female behaviours and mannerisms that occur prior to study produced by Steffensmeier and Hebert (1999)
the assault (Craig, 2016). Often, the court tends to ques- found that women justices in the United States sen-
1 Defendant: A person who is being sued or accused of committing a crime. Complainant: An individual who make a complaint against
another in a legal proceeding
https://ojs.lib.uwo.ca/index.php/jst/index 1Journal for Social Thought 6(1) • April 2022
tenced sexual assault defendants 1 . more punitively history as a means of discrediting their testimony. Sub-
than their male colleagues. Similarly, a study by Glynn section 276 (1) of the rape shield excludes evidence of
and Sen (2015) revealed federal judges with daughters prior sexual history, when its relevance implies promis-
were 7% more likely to decide in favour of the female cuity and perpetuates rape myths (Craig, p.54, 2016).
complainant. The current study contributes to this liter- Such law reforms are considered to have had a positive
ature by providing further evidence that female judges effect, to the extent that they require judges to enforce
diverge from their male colleagues when sentencing caution in their approach to addressing victims (Ran-
sexual assault cases. dall, 2010). Since its introduction, judges have become
The current study suggests that women, on average, more apt to stop aggressive cross-examinations, includ-
are more inclined to favour Crown sentencing propos- ing those that question the victim’s intent and past
als, suggesting a more punitive approach to punish- sexual encounters (Randall, 2010). Nevertheless, there
ment. This outcome is significant as it reveals that remains a difference in how the law is constructed on
personal characteristics impact the role of sentencing the books and how it is applied in practice (Randall,
deliberations. Perhaps women, who perceive the crime 2010).
of sexual assault through the lens of patriarchal oppres- Feminist legal theory supports the belief that the
sion, anticipate the need for more punitive punishment law is founded on a structure that disadvantages
to grant justice for victims. This finding sparks the women in their pursuit of justice (Fine, 2018). Histori-
idea that female judges are better suited to preside over cally, the male dominated judicial system has operated
sexual assault causes concerning female identifying in the interest of the defendant (Fine, 2018) However,
victims. By more intimately understanding the posi- according to the Globe and Mail (2018), the number of
tion of women in society, female judges may be better female judges has risen in recent years, particularly on
equipped to assess the severity of the crime in ques- appellate courts3 where there are three female judges
tion and thus designate a more appropriate sentence, for each male. In fact, the appointment of female judges
especially considering that women are most often vic- has risen 30% since the Conservative Party of Canada
timized. Men who benefit from the patriarchy, may was in power in 2006 (Fine, 2018). Despite this rapid
not fully understand the extent of harm that women growth, female representation is still at a deficit (Fine,
endure from sexual crimes, and may consequently in- 2018). The women who do find themselves seated on
terpret the act to be less severe. Although it could be the bench report that their work is never perceived as
argued that harsher punishments fail to translate into equal to that of a man (Steffensmeier and Hebert, 1999).
more equitable justice, historically women have been One study conducted by Gill, Lazos, and Waters (2011)
denied any substantive justice for sexual crimes (Craig, found female judges, on average, receive lower perfor-
2016). Thus, an influx of harsher penalties may very mance evaluations than their male counterparts. As of
well be the necessary balancing factor. This finding today, women continue to find themselves the targets
does not suggest that all female judges perceive being a of unfairly harsh criticism by their male colleagues,
woman in the same way, nor does it imply that men are who identify female justices to be activists (Feenan,
unable of understand the harm victims endure. Rather, 2008). Female judges are accused of mobilizing emo-
it provides some evidence to suggest that gender does, tions to guide decision making, as opposed to reason
in fact, impact how sexual assault crimes are perceived. and law. Consequently, women may feel compelled
to mute their position on legal matters and opt for a
Literature Review more agreeable approach to decision making (Feenan,
In recent years, many statutory changes have been 2008). These findings support the ideals of feminist le-
enacted to protect victims of sexual assault from judi- gal theory which claims that the patriarchal structure of
cial bias and aggressive defence counsel tactics. For the judiciary frames women to be less competent than
one, "rape shield provisions"2 have been introduced to men, despite their equal qualifications and capabilities.
preclude defense counsel from using a victim’s sexual Nevertheless, it is argued that female judges would
2 Section 276(1) of the Criminal Code prohibits evidence of prior sexual conduct where it is used to make prohibited general inferences.
These inferences are known as the "dual myths", summarized as inferring "that unchaste women are more likely to consent to intercourse and
are less credible complainants.”
3 Appellate courts: judicial bodies that review decisions produced by preliminary trial courts to ensure that the law was applied correctly.
https://ojs.lib.uwo.ca/index.php/jst/index 2Journal for Social Thought 6(1) • April 2022
substantially improve the legal system by introducing and Tiller, 2008). In addition, case precedents and sen-
more diverse perspectives in the courtroom (Feenan, tencing principles in the criminal code largely deter
2008). Feminist legal theory contends that more women trial level judges from sentencing based on ideology
in positions of power would help eradicate sexist per- alone (Mallett, 2015).
ceptions of women in the judicial system (Goodin and Nevertheless, the disparity in sentencing prac-
Baer, 2013). tices across different jurisdictions suggests that val-
ues and preferences unavoidably affect case outcomes.
Background of the Current Study (Schanzenbach and Tiller, 2008; Gleason, Jones and
McBean, 2019). Several studies find that male and fe-
It is vital to examine how courtroom dynamics vary male judges approach cases from different perspectives
based on the gender of the appointed judge in order (Hunter, 2015; Gleason, et al, 2019). For instance, fe-
to address the problem of hostility towards victims male judges that preside over cases unique to women,
(Feenan, 2008). A lack of research persists largely are more likely to show empathy in the adjudication
because many courts prohibit the recording of pro- process, whereas men may perceive gendered violence
ceedings by anyone who is not a member of the press as less severe (Hunter, 2015; Gleason, et al, 2019). The
(Puddister and Small, 2019). Although prohibiting patriarchal construct of society places women in a
press reporting is said to protect the court’s indepen- lower hierarchal position to that of men. Consequently,
dence and mitigate the influence of outside forces on women are at higher risk of being victimized. The pa-
judicial decision making, it inevitably makes studying triarchally enforced social construct of gender not only
the phenomena more difficult (Puddister and Small, increases the likelihood of women being exposed to
2019). Most importantly, limiting recording prevents sexual abuse, but it also influences how one perceives
researchers from obtaining vital information on judi- the crime itself (Hunter 2015). Men who benefit from
cial behaviour. Consequently, most research on judicial the patriarchy, and are less often exploited by it, may
behaviour is limited to decisions of appeal level courts view historically oppressive acts such as sexual assault
(Smith and Skinner, 2012). Nevertheless, it is believed as minimally consequential. These diverging percep-
that female justices not only differ in how they sentence, tions may very well impact how cases are conducted in
but also in how they address victims and defendants court (Hunter, 2015; Gleason et al, 2019). Female judges
(Feenan, 2008). Judges are presumed to be restricted that preside over sexual crimes are more likely to show
by case law that prevents them from making decisions empathy in the adjudication process, perhaps from per-
freely based on ideologies. The level of judicial au- sonally experiencing and living through misogynistic
thority and discretion increases within each level of ideals set by society (Hunter, 2015; Gleason, et al, 2019).
court, with the Supreme Court of Canada wielding the Although men are also privy to patriarchal oppression
highest authority (Mallett, 2015; Richez and Crandall, and sexual assault, they are more often its benefactors,
2018). Canadian justices follow an “intuitive synthe- and thus may interpret the crime differently.
sis” doctrine when presiding over cases which entails
judges balancing a wide array of factors when deter-
Methods
mining sentencing outcomes (Mallett, 2015; Richez and
Crandall, 2018). The following study evaluated s.96 superior trial-
The Intuitive Synthesis Doctrine holds that there is level court case sentencing decisions in Canada, ex-
not an objectively “right” or uniform sentence that can cluding Quebec.4 Focusing on trial courts was impor-
be applied to a particular type of crime (Mallett, 2015). tant to determine how preliminary (rather than appel-
Judicial discretion and bias are limited by a series of late) courts process sexual assault cases. Furthermore,
checks and balances embedded in the judicial system trial-level cases were selected so that the behaviours of
(Mallett, 2015; Richez and Crandall, 2018). For one, judges could be evaluated individually, since appellate
lower court judgments are reviewable on appeal and courts hear cases in panels.
while it is common to have a case appealed to higher After filtering for the relevant timeframe, cases were
court, a judge who has their decision overruled numer- selected until the quota of 20 male and 20 female deci-
ous times may be viewed unfavourably (Schanzenbach sions was met. Only cases that explicitly listed s.271 as
4 Quebec cases were omitted due to their sentencing summaries being written in French.”
5 s. 271: Everyone who commits a sexual assault is guilty of (a) an indictable offence and is liable to imprisonment for a term of not more
https://ojs.lib.uwo.ca/index.php/jst/index 3Journal for Social Thought 6(1) • April 2022
an offence were analyzed.5 Case selection was limited Findings
to summaries processed within the past eight years.
The restricted timeline of the data ensured that all Judicial Sentencing in Relation to Crown and
conclusions were based on information of contempo- Defence Proposals
rary significance. Social advocacy movements such
as #MeToo have had a noteworthy influence on how In each case, both the defence and Crown put for-
courts interpret the "severe or pervasive" requirements ward a proposal on how a judge should sentence the
in harassment law (Tippett, p. 241, 2018). It is believed accused, which was supported by relevant precedent as
that public advocacy within the past decade has in- well as mitigating and aggravating factors. Although
fluenced the way judges address sexual assault cases the Crown counsel does not explicitly represent the
(Fletcher and Star, 2018; Tippett, 2018; Rasmussen and interests of the victim, their sentencing deliberations
Yaouzis, 2020). For example, judges are said to be more are based on the interest of society. Based on obser-
cautious in how they address victims (Fletcher and vations made in this study, sentencing proposals from
Star, 2018). As such, cases processed within the past the Crown were often lengthier and more punitive
eight years were selected to account for any changes than proposals from the defence. In general, after
in sentencing that may be the result of changing soci- the judge considers both sentencing proposals in con-
etal values. Although the #MeToo Movement gained junction with the relevant principles of sentencing, an
traction in 2017, it originated in 2006 from the work informed sentence is imposed. However, it should be
of Tarana Bruke. It’s recent growth and success can noted that this study relies on judge’s sentencing deci-
be attributed to a series of small changes throughout sions, rather than transcripts of sentencing submissions
the years that allowed for the movement to rise to such by counsel and there may be instances where some of
prominence (Brockes, 2018). After all, it was only in the nuance gets distorted.
2010 that the United Nations created “UN Women” in Table 1 displays cases where the sentence aligned
an effort to accelerate gender equality (Brockes, 2018). with the Crown and defence proposals. When con-
Discussions of female empowerment began prior to any sidering which legal side the decision aligns with, the
designated movement, but undeniably reached peak data was recorded based on the type and duration of
influence as women began to publicly express their incarceration imposed, not the length of probation nor
shared experiences. any credit issued for time served. If the case contained
multiple types of offences, only the proposals made
The 40 selected cases were read multiple times, us-
for the sexual assault were measured in relation to the
ing a line-by-line inductive approach to screen for re-
sentence imposed for the sexual assault conviction. In
occurring themes that were listed as contributing miti-
rare cases where a total sentence was proposed with no
gating and aggravating factors.6 While it was possible
distinction for each individual charge, the suggestions
to identify variables that were mentioned to be aggra-
issued by either counsel was measured against the total-
vating or mitigating in sentencing deliberations, it was
ity of the final sentence produced by the judge. Where
difficult to determine which elements were more per-
the chart below suggests that the judge produced a sen-
suasive in determining outcomes. In other words, it
tence that was in closer proximity to one side (Crown
was not possible to conclude whether a judge priori-
or defence), this indicates that the sentence was within
tized a certain mitigating or aggravating factor over an-
a 6 month-time range of what was originally recom-
other; however, if a certain principle was mentioned to
mended by that party and the opposition’s proposal
contribute to the sentencing decision, it was recorded.
exceeded or fell below the 6-month range. If a case is
indicated to be a “middle ground” sentence, it implies
the sentencing outcome is equally
than 10 years or, if the complainant is under the age of 16 years, to imprisonment for a term of not more than 14 years and to a minimum
punishment of imprisonment for a term of one year; or (b) an offence punishable on summary conviction and is liable to imprisonment for a
term of not more than 18 months or, if the complainant is under the age of 16 years, to imprisonment for a term of not more than two years
less a day and to a minimum punishment of imprisonment for a term of six months.”
6 Mitigating Factor: considerations that lessen culpability (E.g.: defendant’s age, mental capacity, previous good character, etc.). Aggravating
Factor: consideration that increase culpability (E.g.: defendant’s crime being motivated by hate/bias, defendant being in a position of authority,
the victim being under the age of 18, etc.)
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Table 1: Crown + Defence Sentencing Proposals Compared to Judicial Sentencing Decision
https://ojs.lib.uwo.ca/index.php/jst/index 5Journal for Social Thought 6(1) • April 2022
grounded between the Crown and defence recommen- that impact sentencing decisions. Other variables, such
dations. In these cases, either both parties suggested a as the circumstance of the offence, prior record of the
sentence duration falling within the sentence imposed accused, race, class, and strenuous life circumstances,
or a compromise was struck where one party proposed may all play a role. Also, experience and previous
the type of sentence (i.e., conditional sentence) and the careers held by a judge (such as a former Crown com-
other party proposed the duration. In this event, it pared to defence counsel) have not been controlled for,
could not be stated that the sentence was objectively which may influence how judges’ sentence. In gen-
closer to one side. If the chart indicates an “exact deci- eral, Canadian judges have discretion to select which
sion,” the judge issued a sentence reflecting the precise principles of sentencing (such as deterrence or denun-
recommendation issued by either Crown or defence. ciation) to emphasize; however, overall, there was no
The data reveals that more than half of the female significant variation detected in the cases studied. That
adjudicated cases (55%) produced sentences aligning said, significant differences were found in the empha-
closer to Crown proposals, (35%) favoured a middle sis of mitigating and aggravating principles in relation
ground approach, and (10%) favoured the defence. to the interpretation of remorse, youth and character
Only six cases with male issued sentences aligned considerations, and intoxication.
with the Crown (30%), seven cases favoured the de-
fence (35%), and five fell in the middle (25%). While The Interpretation of Remorse
four male-judged cases produced sentences aligning ex- In sentencing, an offender’s expression of remorse
actly with defence recommendations, only one female- is considered a mitigating factor that reduces the sever-
judged case resulted in the same outcome. Such data ity of the sentence. In Western societies, remorse is
suggests that male judges, on average, are less inclined indicative of regret and one’s desire to make amends
to favour Crown sentencing proposals, which are gen- (Hanan, 2018). While the presence of remorse often
erally more punitive. Thus, if female judges are more helps an offender receive a reduced sentence, the failure
likely to enforce sentences favoured by the Crown, it to express it is not considered aggravating. An offender
can be inferred that women may sentence sexual as- has the right to proclaim their innocence and must be
sault cases in a more punitive manner compared to given the benefit of the doubt, unless proven guilty.
their male counterparts. Automatically considering a lack of remorse as aggra-
Nevertheless, gender is just one of the many factors vating, would, in a sense, assume guilt. An individual
https://ojs.lib.uwo.ca/index.php/jst/index 6Journal for Social Thought 6(1) • April 2022
who is genuinely innocent may show no guilt, hence ashamed and embarrassed of his actions (para 26). Sim-
a lack of remorse cannot reasonably be assumed to be ilarly, in R. v. J.W.S (2013), the judge determined the
aggravating. The issues encompassing the construc- offender to be remorseful based on his elaborate apol-
tion of remorse, however, lie in how judges diverge in ogy letter (para 30). The compelling evidence of regret
interpreting it as a relevant mitigating factor. Judges may very well be the reason why these female judges
often believe they know what behaviours accompany considered remorse without a guilty plea. The same,
genuine regret, but the term is left rarely defined in however, cannot be said for the remaining two male
legal proceedings (Weisman, 2014; p. 26-27). Therefore, adjudicated cases.
its interpretation can vary based on judicial and defen- In R. v. S.E.L (2020) the male judge established re-
dant characteristics. Factors such as culture, youth, and morse based on a pre-sentence report that detailed the
race can affect the assessment of remorse (Bandes, 2016; offender’s apology (at para 11). The judge acknowl-
p.16). Judicial bias can discriminate against minorities edged that the offender’s statement did not hold the
or those who are not well versed in the Western norms same effect as a guilty plea, but he nevertheless consid-
and behaviours associated with apologetic behaviour. ers the apology to be significant and mitigating (R.v.
For instance, some judges may consider remorse to be S.E.L, 2020 at para 11). Perhaps the justice interpreted
genuine if it is accompanied by direct eye contact and a the demeanor of the accused to be remorseful; however,
demeanor of sadness, despite some cultures believing this cannot be assumed for certain, and no additional
direct eye contact to be a sign of disrespect (Bandes, information is provided to support the claim that the
2016). Meanwhile, minorities may be viewed to be accused was indeed apologetic. Similarly, in R.v. Tom-
less remorseful due to subconscious prejudices and pouba (2020) the judge problematically claims that the
racist beliefs that assume minorities to be less credible. accused is “not a bad guy”; although he may have
(Bandes, 2016). Conversely, establishing remorse for lacked insight into the seriousness of the sexual as-
wealthy, educated, white males may come more easily, sault, he was “respectful and apologetic” (at para 64).
because the patriarchal system prioritizes the interests The judge further states that he accepts the accused’s
of such individuals. The cases analyzed in this study, remorse based on interactions he has had with him
revealed gender to have a significant impact on the during sentence hearings (at para 62). Even though the
interpretation of remorse in sexual assault trials. judge declared that his interpretation of remorse was
Out of the 40 cases, 15 directly consider remorse to not mitigating per se, he did suggest it to be relevant
be a factor in case proceedings. Although, there is a in sentencing considerations (at para 62).
distinguished difference between not acknowledging a Perhaps the most shocking male case that gave re-
defendant’s expression of remorse and the defendant morse consideration was found in R. v. Bernier and
being remorseful. From the analysis of the cases, male Oliver-Morin (2018). This case included the sentenc-
judges appeared to be more lenient in accepting re- ing of two offenders who were convicted of the sexual
morse as a mitigating factor, without the presence of a assault of the same minor victim. The male judge in
guilty plea. Most instances of this phenomena involved this case appeared to justify the behaviours of the ac-
an offender who asserted that consent was originally cused, despite recognizing that the offenders lacked
granted by the complainant. Even though Canadian insight into the fault in their actions. For example, it
law requires verbal consent to be established, it is often was mentioned that one of the offenders offered to
difficult to discern whether the accused made a gen- pay witnesses to say he was not involved in the sex-
uine mistake in determining consent or if he willingly ual assault (at para 10). Despite this information, the
violated the interests of the complainant. In any case, judge finds Bernier to be remorseful and attributes
female judges appeared to be more wary of remorse his actions to be the fault of his inebriated state (R. v.
considerations without a guilty plea. Of the 15 cases Bernier and Oliver-Morin, 2018, para 15). However, this
that considered remorse, four determined that it was position is contradicted by the fact that Bernier offered
mitigating without a guilty plea. Out of these four to pay someone to claim he was not involved in the
cases, two were female (R. v. Berry (2014) and R. v. crime, which suggests he was aware of his actions and
J.W.S (2013)).However, on both occasions, the female attempted to avoid the consequences through bribery.
justices reached their conclusion based on compelling Furthermore, with regard to the second offender, the
evidence in support of their findings. In R. v. Berry judge found the accused displayed difficulties in ac-
(2014), the judge was provided with a psychological cepting responsibility in the crime. Yet, despite this
report which established the accused to be genuinely inference, the judge determined the accused was re-
https://ojs.lib.uwo.ca/index.php/jst/index 7Journal for Social Thought 6(1) • April 2022
morseful, based on his apology directed at the court as a valid mitigating factor did not produce any sub-
(para 20). This example can be contrasted with R. v. Bet- stantive examples or evidence to support their posi-
sidea (2018), where the offender apologized in a similar tion. For instance, several of the male cases would
manner, yet the female judge on the case rejected the list remorse as mitigating but would fail to cite the
apology as an acceptance of guilt, refusing to consider pre-sentence reports describing the demeanor of the ac-
remorse as a mitigating factor (para 39). Similarly, in cused and would omit any examples in support of the
R. v. Shrivastava (2019), the offender issued an apology notion that the accused was indeed “sorry”. More often,
that appeared genuine stating: “I’m aware that this if female judges established remorse as a mitigating
matter has affected a lot of people and for that I am consideration, they would provide examples to corrob-
truly sorry. . . I sincerely regret the entire incident. . . ” orate their claim. While some male cases would also
(at para 15). Rather than accept this apology as honest, provide examples, they were undeniably less common.
the female judge concludes that the offender continues Throughout the analyses of the 40 cases, the following
to minimize the gravity of his offence (R. v. Shrivastava, determined remorse with substantive examples: R. v.
2019 at para 98). TA, (2020), R.v. Berry (2014), R. v. J.L.H (2018), R. v. J.P.
Lastly, a disparity in establishing remorse is de- (2018), R. v. Johnson (2015), R.v Dyson (2016), R. v. J.W.S
tected in cases where a judge considers a guilty plea to (2013), and R. v. Comeau (2017). Six of these cases were
automatically indicate regret. Two cases in the dataset presided by female judges, while two were adjudicated
exemplify this: R.v. Fizzard (2020) (male judge) and R. by men. This finding may suggest that men, more
v. Greig (2017) (female judge). Although the presence commonly than women, choose to consider remorse on
of a female example suggests that both genders are more lenient grounds. Alternatively, it could imply that
prone to consider a guilty plea as remorseful, several male judges simply choose not to elaborate on their
other case examples suggest the contrary. Four cases in reasoning in sentencing decisions. On some occasions,
the dataset, R. v. Eyakfwo (2018), R.v. Shakleton (2017), male judges were shown to deliberate over the presence
R v. Werminsky (2019), and R. v. Wolfe (2016), reject the of remorse in the same substantive manner as female
notion of a guilty plea as automatically ascertaining judges. In R. v. J.P (2018) the male judge established
remorse. Of these cases, only R. v. Werminsky (2019) is remorse only after he witnessed the accused show grat-
sentenced by a male judge. A guilty plea accompanied itude towards the victim for reporting his actions to
by an apology can warrant two separate mitigating con- police (para 12). But, as previously stated, fewer male
siderations for sentencing, but it becomes problematic cases depicted the reasoning behind determining the
when judges infer that the presence of one of these presence of guilt.
factors presupposes the other. While assuming that
a guilty plea automatically suggests the presence of Youth and Character Considerations
remorse may be true in cases outside the scope of sex- One significant variable that lent itself as a mitigat-
ual assault, the data in this study suggests that male ing factor in sentencing was the age of the offender.
judges are more prone to make a connection between Typically, offenders who were younger (18-20), and
remorse and a guilty plea. Considering remorse as a older (50 and above) received less punitive punishment
mitigating factor in sentencing is problematic because (Hilinksi-Rosick, Freiburger and Verheek, 2014). Most
apologizing, making restitution, or seeking treatment offenders aged 18-25, within this study, were indeed
may reflect the offender’s interest in obtaining a re- granted the mitigating consideration of youth. How-
duced sentence, and may not be genuine (Wood and ever, male judges appeared slightly more inclined to
MacMartin, 2007, p.351; Bandes 2016). Furthermore, recognize youth as mitigating, particularly when the
in cases with overwhelming evidence of guilt, defence offender was in their late twenties. For instance, in R. v.
counsel might recommend their client plead guilty in T.A (2020) and R. v. Thakordeen (2019) both male judges
the hope of a reduced sentence (Wood and MacMartin, considered a 28-year-old offender to be youthful. In
2007; Bandees, 2016). This experience is exemplified in R. v. Allen (2017), the mitigating factor of youth was
the case of R.v. Fizzard (2020), where the accused ini- bestowed upon a 33-year-old accused. Conversely, the
tially pleads not guilty but changes his position based female adjudicated cases did not grant youth as a miti-
on the advice of his counsel (para 3). Unfortunately, the gating consideration for offenders over 25. In R. v. J.W.S
male judge in this case takes the guilty plea to denote (2013) the female judge rejected youth considerations
remorse and empathy (para 22). for a 28-year old accused.
Many cases where male judges considered remorse It is possible that youth is an influential mitigating
https://ojs.lib.uwo.ca/index.php/jst/index 8Journal for Social Thought 6(1) • April 2022
consideration because adolescents are more impulsive, Overall, it exacerbates inequalities and disadvantages
and thus prone to irrational behaviours. Though, in sexual assault victims.
truth, age has little relation to an offender’s ability To enhance victim reporting, it is necessary to mod-
to comprehend the gravity of their actions. A 2015 erate the reliance of an accused’s perceived character
study surveying college men at the University of North and avoid assuming that youth implies impulsivity and
Dakota, Edwards, Bradshaw, and Hinsz (2015) found immaturity. The case of R. v. Shrivsatava (2019) exempli-
that an alarming 1 in 3 participants indicated that they fies an insightful method of addressing mitigating con-
would commit rape as long as there was no accom- siderations. The judge interprets the accused’s vast aca-
panying punishment. The data also revealed that the demic accomplishments, volunteer involvement, and
participants were open to using force and coercion to employment opportunities as an indicator of his disci-
reach sexual gratification (Edwards et al. 2015). While plined nature and maturity. As such, she reasons that
this study may not be generalizable, it does suggest that the accused was inherently capable of subduing his
some young men are aware of the severity of sexual impulses, despite his youthful age of 27 years (para 52).
assault, but simply choose to pursue it for a lack of con- While youth inevitably plays a role in decision mak-
sequence. Men are influenced from a very young age ing, not every offender commits impulsive decisions
to believe that they hold relative impunity to commit because of a lack of discipline, nor is it pre-determined
sexual assaults (Edwards et al. 2015). that “good character” exempts people from commit-
ting crimes. If an offender displays the capacity to
This issue is exacerbated when judges overlook the
self-regulate in other aspects of life, then the sentence
nature of the offence in favour for the “good charac-
imposed should not be mitigated based on age or per-
ter” of the accused. At best, character analysis for
ceived character.
sentencing can be described as flawed for its inability
to understand human complexity (by making binary Intoxication Factors in Sentencing
distinctions between good and bad) and at worst can
be seen as perpetuating inequalities in offenders who An element that contributes to a lack of self-control,
may not have the privilege of adopting societal con- apart from age, is the influence of drugs and alcohol.
formities. The analysis of the 40 cases in this study Indeed, a large majority of offences included in this
revealed a significant disparity in how male and female study were committed under the influence. Research
judges assess character support in sentencing. Out of suggests that most sexual assaults involve an offender
the 40 cases available, 16 mention the influence of the who was under the influence of alcohol at the time of
accused’s character based on letters issued in support the crime (Scott, 2017). In many of these situations, the
of the accused or through references produced in the victim is also intoxicated and unaware of her circum-
pre-sentence report. A total of 11 of these cases were stances (Scott, 2017). Thus, the question of whether
adjudicated by male judges who directly determined consent was granted becomes a highly contentious is-
character support to be a relevant mitigating factor, sue. Canadian law stipulates that a victim must be
while only 5 female judges came to the same conclusion. capable and aware of consenting prior to any sexual
The case of R. v. Shrivastava (2019) may shed some light activity taking place (Scott, 2017). However, the law
on why female judges more often opt to reject character does not quantify a specific level of intoxication at
support as mitigating. Justice J.A. Antonio, the female which a victim loses the capacity to consent since ev-
judge who presided over the case, rejected character ery individual reacts to substances differently and, in
support based on the notion that sexual crimes are many circumstances, drunkenness alone does not lead
often perpetrated in private, out of the knowledge of to incapacity (Scott, 2017). The very notion of women
friends and family, and thus have little relation to one’s being capable of consenting despite being under the
publicly perceived character (para 77). Second, she influence casts shadows of reasonable doubt upon the
found that establishing good character based on one’s reliability of sexual assault testimony. The outdated
volunteerism and community engagement was a form view that victims may initially consent to sexual con-
of systemic bias against those who hold less freedom duct only to regret their decision the following day
to donate their time and energy (paras 79-80). Thus, places undue prejudice on women, perpetuates rape
granting youth and character considerations for the myths, and exposes women to adversarial trial proceed-
privileged can be viewed as a form of injustice fueled ings. However, assault cases are more nuanced and
by patriarchal ideals. It does not benefit minorities, require judges to use their discretion in determining
but rather provides more freedoms to those in power. culpability. This freedom of judgement is often where
https://ojs.lib.uwo.ca/index.php/jst/index 9Journal for Social Thought 6(1) • April 2022
male and female judges diverge in establishing the ba- lack of initiative in seeking addiction treatment as an
sis of consent. While the majority of judges analyzed aggravating factor (para 3). In most instances, female
in this study considered intoxication as an aggravating judges explicitly rejected intoxication as a mitigating
factor, some male judges interpreted the influence of a consideration, emphasizing the role of free will in al-
substance to limit the fault of the offender. lowing someone to decide whether they are capable of
Out of the 40 cases used in this study, more than controlling their actions while under the influence. In
half (26) involved the influence of a substance. While contrast, male judges would commonly mention that
most of these cases rejected the defense of intoxication, intoxication likely played a role, but more often would
some male judges showed sympathy towards it. In fail to give it any mitigating or aggravating designa-
contrast, not a single female adjudicated case consid- tion. Overall, there were no considerable differences
ered intoxication as mitigating. The most problematic between how male and female judges addressed the
case was seen in R. v. T.A (2020), where the male judge role of intoxication in sexual assault, apart from the des-
reduced the significance of the victim’s inability to con- ignation of intoxication as aggravating or mitigating.
sent. The male judge, LeGrandeur, initially recognized However, as previously mentioned, omitting certain
the victim’s state of vulnerability, acknowledging that factors does not automatically signify that judges do
she had consumed alcohol and fell asleep, yet reduces not consider it.
the seriousness of her state by asserting there to be In general, judges avoided considering substance
no evidence of her being “blacked out” (para 48). To abuse as a valid defence and do not give it substan-
further support his position on the matter, LeGrandeur tive attention. Although, the recent ruling from the
cites Justice Sopinka’s reasoning in the 1994 Daviault Ontario Court of Appeal7 has determined that accused
case (at para 107) stating: “... To the extent that it bears individuals could use the defence of intoxication in
upon his or her level of moral blameworthiness, an of- situations where it is demonstrated that their level of
fender’s degree of intoxication at the time of the offence consciousness at the time of the crime was akin to
may be considered during sentencing.” While the judge automatism (Fine, 2020). Although this legal defence
does not explicitly favour the position of the accused, has not yet been applied to cases of sexual assault, it
his lack of concern for the victim is clearly portrayed does carry a dangerous precedent that could dimin-
in the way he frames the circumstances. Similarly, in ish justice for victims (Fine, 2020). Most judges in
R v. Berry (2014), the judge considers substance abuse the database avoided applying the defence of intoxica-
at the time of the offence as a mitigating consideration, tion because of Parliament’s response to the Supreme
which differs from R. v. T.A (2020), where the judge Court ruling of Daviault, s.33.1 rejected the defence in
ultimately produced a sentence aligning with Crown some circumstances. However, the Ontario Court of
proposals. Appeal’s decision could once again change how judges
Although these two cases showed a greater consider- approach this controversial mitigating factor. Produc-
ation for intoxication, most others rejected determining ing more leniency for the intoxication defence would
substance abuse to mitigate moral culpability. If the exacerbate the hardship experienced by victims and
offender was extremely intoxicated and appeared un- would pose the risk of further diminishing incidents of
able to make a self-regulated decision, the judge would victim reporting. Factors that are within the control of
mention this factor, but deny it any additional consid- the accused, such as the decision to consume intoxicat-
eration. For example, in R v. Pijogge (2019), the female ing substances, should be banned from mitigating the
judge claimed to accept that alcohol likely played a accused’s culpability.
role in the behaviour of the offender; however, she em- Overall, the accused is granted a plethora of op-
phasized that, while it might explain the behaviour, it portunities to mitigate their culpability, while victims
did not excuse it (para 24). Similarly, in R. v. Dyson remain overlooked in the trial process. At most, the cir-
(2016), the judge acknowledged the accused acted out cumstances of the victim are acknowledged through the
of character but maintained that being intoxicated did Victim Impact Statement (VIS), which allows victims
not reduce responsibility (para 22). In R. v. Kelln (2013), to express the extent of harm experienced. However,
the female judge identified alcohol to play a signifi- these statements play a limited role in the court process
cant role in the crime but considered the offender’s and are not intended to influence sentencing (Manikis,
7 At the time of writing leave to appeal in R v. Sullivan has been granted by the Supreme Court of Canada.
https://ojs.lib.uwo.ca/index.php/jst/index 10Journal for Social Thought 6(1) • April 2022
2015). In total, only 24 cases in the study mention a of cases being brought to the attention of the police.8
VIS, with the remaining cases either failing to reference While it is vital to ensure a fair trial for those accused, it
it, or simply not including it. When a statement was should not impede victim’s faith in the judicial system.
present, a judge would typically give emphasis to the
Recently, Bill C-3, An Act to Amend the Judges
accompanying harm caused as a consequence of the
Act and Criminal Code, was adopted by the House of
crime. In situations with no statement, judges would
Commons in an effort to address the issue of victim
at times attempt to make an inferred reference as to
underreporting (Bryden, 2020).9 The Bill mandates all
how the crime may have impacted the victim, though
federally appointed judges to partake in training ses-
more commonly they would simply overlook their per-
sions designed to teach about rape myths and stereo-
spective. This institutionalized form of indifference
types associated with sexual assault (Bryden, 2020).
may contribute to the negative experiences of women
Additionally, the Bill requires judges to explain the
in sexual assault cases. Although, in theory, VISs hold
reasons for their decisions in sexual assault cases to
a mere expressive function, in reality, they are seen to
increase judicial transparency and subsequently reduce
provide judges with a better understanding of cases
bias (Bryden, 2020). Generally, these changes appear
(Manikis, 2015. p: 91). Most importantly, VISs give
to be a step in the right direction for improving the
victims the opportunity to have a voice in a process that
court process for victims. However, the Canadian Ju-
otherwise neglects and denies justice Manikis, 2015).
dicial Council has expressed concern that mandating
Thus, it is imperative for the wellbeing of all victims
judges to explain their reasoning compromises judicial
that judiciaries encourage the submission of Victim
independence (Bryden, 2020). While this is a valid con-
Impact Statements.
cern that deserves careful consideration, ultimately the
changes would produce more benefits than issues. For
Conclusion one, it would provide lawyers with a better understand-
ing of factors that contribute to sentencing decisions,
Improving Future Policy which could allow Crown counsel to construct better
cases in the interest of society. Better representation
Whether judges adjudicate differently based on gen-
would result in more confidence in the system and
der remains a highly contested issue. This study sug-
hopefully more justice for victims.
gests that, indeed, gendered differences impact the
process of judicial deliberation, though to what extent Victims are often treated as periphery figures in sex-
these factors influence sentencing decisions remains ual assault cases. In a legal perspective, victims matter
uncertain. Judges who benefit from patriarchal ide- only to extent that they can provide evidence through
als may approach such cases with a lack of sensitivity, testimony. Most recently, a sexual assault survivor
thus creating a more hostile court environment. Female was prosecuted for e-mailing transcripts of her trial
judges, who are more familiar with the experience of to friends and family (Fine, 2021). The charges where
being a woman, may approach such cases with more enforced based on the notion that the victim broke
caution and sympathy. In any case, any variance based a publication ban on her own identity (Fine, 2021).
on gender may suggest that the very structure of the Scholars were quick to note that these unprecedented
system should be re-evaluated. Judges are all similarly charges operated to revictimize the complainant and
educated and contain a certain degree of privilege; epitomized the justice system to be an institution op-
most often they are too far removed from an issue to erating against the interest of sexual assault survivors
effectively analyze the gravity of the problem. The ju- (Fine, 2021). Evidently, the patriarchal institutionaliza-
dicial system prioritizes the due process rights of the tion of the criminal justice system requires an overhaul.
accused, at times at the expense and harm of victims. For meaningful change to occur, new policies need to be
This finding is especially true for thousands of women introduced at every stage of the judicial process. Most
who are denied justice in sexual assault proceedings. importantly, victims must be provided with publicly
According to Statistics Canada (2017), sexual assault funded legal support during trial. Ontario has recently
remains the most under-reported crime, with only 5% initiated the introduction of four hours of free legal
8 Senate, Debates,1st Session, 42nd Parliament, 6 June 2017, p. 3264. Judicial Accountability Through Sexual Assault Law Training.
9 Bill C-3 is currently before the Senate Committee on Legal and Constitutional Affairs.
https://ojs.lib.uwo.ca/index.php/jst/index 11Journal for Social Thought 6(1) • April 2022
advice to sexual assault victims (Fine, 2021). While this divides among Canadians. The Globe and Mail.
undoubtedly is a step in the right direction, the extent https://www.theglobeandmail.com/canada/
of this support is insufficient. Legal advice should be at- article-ontario-court-ruling-on-extreme-intoxication
tainable for the entire duration of the court process and -defence-exposes-deep/
victims should be appointed a mental health counsellor Fine, S. (2021, April 07). Sex-assault victim’s
to help mitigate the effects of trauma that accompany breaking of publication ban results in calls
the trial process. In the future, if research proves that fe- for legal, policy changes. The Globe and Mail.
male judges adjudicate sexual assault cases with more https://www.theglobeandmail.com/canada/
caution and empathy, perhaps specialized courts could article-sex-assault-victims-breaking-of-publication-
be mandated to further ameliorate the experience of ban-results-in-calls-for/
victims. Such policy changes are an essential step in Fletcher, P., & Star, C. (2018). The influence of femi-
improving gender equality and the public’s confidence nist organisations on public policy responses to
in the judicial system. domestic violence and violence against women:
A systematic literature review. Social Alternatives,
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Author Biography
sions in Child Sexual Assault Cases. Journal
of Language and Social Psychology, 26(4), 343–362. Melania Soudouk is a JD student at Osgoode Hall Law
https://doi.org/10.1177/0261927X07306979 school. Melania previously completed a Master’s in
Criminology and Criminal Justice (2021) and a B.A in
Appendix Criminal Justice and Public Policy (2019), both at the
University of Guelph. Her research interests focus on
R c Berry, [2014] BCJ No 306, 2014 BCSC 284, 2014 judicial decision making and activism. At Osgoode,
https://ojs.lib.uwo.ca/index.php/jst/index 13You can also read
