UBC Theses and Dissertations
Subtle expressions of gender inequality : exploring the application of aggravating and mitigating factors in sentencing decisions for sexual assault offences Burnett, Tamera Ashley Margaret
Sexual assault is a serious and prevalent crime in Canada, and the legal responses addressing this phenomenon represent a failure to truly understand its causes and harms. From the justice system’s first interactions with those affected by sexual assault to the highest levels of appeal, the legal system has shown an inability to conceptualise this offence as a systemic issue of oppression that is deeply connected to equality rights. This failure is well-illustrated in the sentencing decisions resulting from these cases: they are unpredictable, often justified using a variety of rape myths that diminish the effects of the crime, and encourage society to view sexual assault as a far less serious offence than it truly is. The academic literature on this topic, however, is sparse. This thesis fills part of that gap by exploring the use of aggravating and mitigating factors in sexual assault cases through a feminist lens. These factors prompt the courts to either increase or decrease sentences. They are meant to humanise and contextualise the sentencing process; however, their use is negatively influenced by rape myths and stereotypical assumptions about gender and the crime of sexual assault. In order to demonstrate the validity of this claim, a case law survey was prepared to qualitatively investigate contemporary jurisprudence from Ontario. The results of this research showed that aggravating factors were not consistently used when relevant, and often applied in a manner that minimised the harms suffered by the complainant. Mitigating factors, on the other hand, were used to disproportionately favour the offender by justifying or excusing his criminal behaviour. While some decisions showed that aggravating and mitigating factors can be used in a manner that challenges systemic issues of gender discrimination, this capacity for progressive change was largely ignored.
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