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- Title
WAIVER: A FEMINIST ANALYSIS OF CHARGE BARGAINING IN SEXUAL ASSAULT PROSECUTION IN ONTARIO.
- Authors
NOVAC, NATASHA
- Abstract
This article offers a normative analysis of charge bargaining in the context of sexual assault prosecution in Ontario. It responds to two recent developments in the landscape of prosecutorial decision-making: R v Jordan, a 2015 Supreme Court of Canada decision that mandates a shortened trial timeline in accordance with Charter section 11(b), and the Globe & Mail's investigative report "Unfounded", focusing on the high rates at which Canadian police jurisdictions tend to dismiss sexual assault allegations. The collective effect of Jordan and "Unfounded" is to place added pressure on Ontario prosecutors to downcharge sexual assault claims during resolution discussions to non-gender-based crimes, such as common assault, in the name of expediency and resource efficiency. This article examines the ethical implications of a potential shift in Crown charging practices toward an increased reliance on charge bargaining to resolve sexual assault allegations. Drawing on feminist legal theory and ethics, the author posits that Crown prosecutors should carefully consider the social and ethical consequences flowing from reducing sexual assault claims in resolution discussions prior to engaging in downcharging. In particular, Crowns should consider that agreeing to decrease sexual assault charges to non-gender-based crimes may disrupt the ability of the criminal law to signal that sexual assault is socially reprehensible and will attract legal sanction. Building on R.A. Duff's communicative theory of punishment, the author suggests that deterrence in a sexual assault prosecution context is most effective when the criminal justice system communicates social opprobrium for impugned acts of sexual violence. Downcharging sexual assault to a non-gender-based crime imposes a punishment disconnected from the crime committed, obfuscating the fact that sexual violence has attracted criminal sanction. Downcharging also collapses sexual assault into the broader pool of violence, erasing the specificity of sexual violence as a specifically gender-based crime. If downcharging sexual assault becomes a trend in Crown prosecution offices, it may weaken the ability of the criminal justice system to signal that sexual violence is punishable by law, and ultimately reduce the extent to which criminal sanction can assist in creating a culture shift to eradicate violence against women. For these reasons, embracing downcharging in the name of prosecutorial efficiency may lose in long-term efficacy what it gains in short-term benefits. In examining the ethics of downcharging in the context of sexual assault, the author also explores a perennial feminist advocacy question: what criminal justice response, if any, constitutes a feminist response to sexual violence?
- Publication
University of Toronto Faculty of Law Review, 2018, Vol 76, Issue 1, p1
- ISSN
0381-1638
- Publication type
Academic Journal