The law of sexual assault has undergone distinct changes since the Canadian Charter of Rights and Freedoms came into effect. In 1982, the Canadian Criminal Code stated that the offence of rape only included vaginal intercourse without consent (Shaffer 2012). Whereas in 2012, sexual assault was defined as more than unconsensual vaginal intercourse, and included any sexual touching to which the complaintent has not consented (Shaffer 2012). However, despite Canadian legal definitions aiming for neutrality and proper sentencing there remains an implicit gender bias that continues to shape how courts, lawyers, and juries interpret and apply the concept of consent — often to the detriment of survivors, particularly women and gender-diverse individuals. 

Subsection 273.1 of the Canadian Criminal code defines consent as the “voluntary agreement of the complainant to engage in sexual activity” (Justice Canada). Further, it states that situations where the complainant is incapable of consenting, where the accused induces the complainant to engage by abusing a position of trust, power or authority, or where the complainant expresses a lack of agreement to engage or continue in the activity are not situations of consent (Justice Canada). However, why then if the law defines consent as an enthusiastic and ongoing “yes,” are women still asked why they didn’t say “no” louder? Why does the burden so often fall on the victim to prove they didn’t want sex — instead of on the accused to prove they had consent? 

You would expect these definitions to be understood or at least recognized, however in a 2022 study by the Canadian Women’s Foundation (2022), 55 percent of people in Canada reported to not fully understand consent. While the law states consent must be both positive and ongoing, only 45% of survey respondents said they would need both indicators from another person to qualify the sexual activity as consensual (Canadian Women’s Foundation, 2022).

 Further, according to Statistics Canada, approximately 4.7 million women aged 15 and older have been sexually assaulted outside of an intimate relationship, with women of color and gender diverse individuals being at statistically higher risk–and that’s if they even report it Canadian Women’s Foundation, 2022). Countless women stay quiet and don’t report these experiences in fear of being humiliated and judged for it. This hesitance is reflective of the kinds of underlying inconsistencies that exist. Therefore, while the legal system has identified clear conditions for consent, this does not always align with how consent is treated or recepted, both inside and outside of the courtroom. 

We’ve seen how in online discourse cultural norms, practices and assumptions shape public perception on consent. Posts upon posts with comments such as “she was asking for it” or “she didn’t say no” or “she shouldn’t have worn that” cloud the viewer’s perception of both the individual and the situation, and blur the lines between facts and falsities. Much of the online discourse fails to define consent as specific, revocable, and persistent, and is framed instead within the context of cultural and gendered norms (UN Women, 2019). However, the greater issue ensues as we examine how the effects of bias bleed into the courtroom, and these gendered narratives place victims of sexual assault in greater harm and create a more difficult pathway to proper justice.

In the Canadian judicial system, it has been widely seen that in sexual assault cases full protection of the law is only afforded to “ideal victims,” meaning women whose “morality, behavior, and conduct are beyond reproach, and who behave, post-sexual assault, as expected” (Dick, 2020). The ideal victim is expected to be virtuous, respectable, and dependent. However, the courtroom and the online world are not always distinct entities. The prominence of this gendered and biased talk about sexual assault is unrealistic and harmful and begins to shift how women and viewed in the courtroom, and affects how their assaulters are sentenced. 

In the case of these “ideal victim” situations, women are expected to be acutely aware of their alcohol consumption, dress, location, expressions of sexuality, and proximity to men (Dick, 2020). They must “live circumscribed public lives in which they anticipate abuse and limit their sexual freedom, despite the fact that it is male violence that drives sexual assault” (Dick, 2020). Women who do not follow these guidelines can be denied the law’s protection because the harm they experience is a consequence of their own failure to “regulate themselves and their sexuality” (Dick, 2020). These less-than-ideal victims are transformed into protagonists and precipitators of sexual assault, which reflects the media discourse surrounding many sexual assault victims. 

The case of R. v Rhodes demonstrates how sexist stereotypes, rape myths, and victim blaming are persistent issues in sexual assault cases for non-ideal victims. On the night of the assault, the victim and her cousin happened upon Rhodes and his friend in a bar parking lot. The victims were blamed by the judge upon the start of the trial for having engaged in a full night of partying, describing the girls as “looking for a party” and the men as simply “looking for a ride home” (Dick, 2020). And while the men “found their way onto the parking lot,” the women “spilled over” into the lot (Dick, 2020). The four adolescents travelled to the lake, where the victim rebuffed a sexual advance by Rhodes and asked to be let out of the vehicle. When they arrived at the lake, the victim ran into the woods to try to escape Rhodes, however ultimately had to re-emerge, pretended to be interested in Rhodes for her protection, and was then sexually assaulted. 

Judge Dewar discriminated against the clothing and the behaviour of the women, stating that they had “made their intentions publicly known” and stating that since the victim’s cousin had been making out with the accused’s friend, that this could further heighten anticipation in the mind of the accused that further sexual activity could well occur” (Dick, 2020). Despite the fact that the victim was not interested in Rhodes’ advances, the judge concluded that her feigned interest at the lake gave the impression that she was interested in sexual activity, even while she had not consented, and was not a willing participant. The victim’s efforts to hide from the accused and protect herself by feigning affection for Rhodes failed to earn her full-fledged victim status. Rhodes was shielded from the full impact of the law and the victim denied its full protection, demonstrating how gendered norms and biases had a direct effect on sentencing and the granted justice and perception of the victim.

These instances are seen worldwide. One particular instance was the Brock Turner/Chanel Miller case (2015/2016), in which gender biases both humiliated Miller, and disproportionately tried to praise Turner. In January of 2015, Miller was invited to a Stanford University fraternity party. She reported drinking and having fun, stating the last thing she recalled was drinking lukewarm beer and handing it to her sister (ABC News). Miller was later sexually assaulted by 19-year-old Stanford swimmer Brock Turner. The assault was stopped by two men who noticed that Miller was undressed and unconscious. Miller’s next memory was waking up in the hospital and being given medication. Her bruises were photographed and a rape kit exam was conducted.

In trial, Miller’s nude body photos were shown in court as evidence for everyone in there to see- a deep indication of how women in the cases can often be overlooked, or placed in further situations of humiliation and shame. Brock Turner was found of three consecutive felony charges namely, assault with the intent to commit rape of an intoxicated or unconscious person, penetration of an intoxicated person and penetration of an unconscious person. He was initially meant to face up to fourteen (14) years in prison — however, the prosecutors requested for six (6) years instead. This sentence was refuted by Turner’s father, who stated to the judge that “20 minutes of action” should not change the course of his son’s future (ABC News). As a result, Turner was later sentenced to six months in jail with three years of probation by Judge Aaron Persky — in which he was released three months later. 

This sentence was not only an inconsiderate and incomparable "punishment" for his actions, but also directly reflects the kind of gender bias that influences how the court interprets consent. Miller did not consent to being violated by Turner, however because of Turner’s “bright future and promising career,” Miller is left with no justice and persistent trauma, and Turner walks away unscathed, his entire life ahead of him. This case demonstrates how gender norms and privileged power positions play an unequal role in sentencing, and minimize the victim’s power and voice.

Miller stated feeling her “character was just as much on trial” as Turner's. Part of this leads me to wonder how implicit it is for female victims of sexual assault to anticipate the judgement, the backlash, the pushback, all within a situation that was physically and unconsensually inflicted upon. The prominent discourse of “she was asking for it” or “she was into it” is so widely socially acceptable, but completely disregards the reality living as a sexual assault victim, and only perpetuates a strong discourse of disbelief towards victims who are facing life-long trauma.

Where is the sense of justice when victims like Miller— or the millions of other women around the world — are left carrying persistent, lingering trauma, while their assaulters receive incomparable punishments? As conversations surrounding sexual violence are ever changing, it’s difficult to reconcile cases like these within legal systems that often fail to uphold their own standards. Despite clear legal definitions, gender bias and norms continue to shape how consent is interpreted — not only in courtrooms, but in the broader socio-cultural narrative.

What survivors want is simple: to be heard, believed, and protected by the very system meant to deliver justice. However, the gap between what the law promises and how it is applied tells a different story — one where definitions of consent are ignored, and women are still forced to fight for their credibility. The unfortunate reality remains that until the law begins to reflect its own principles in action, true justice will remain out of grasp for many victims.