At one time, it was impossible for a man to rape his wife in Canada, legally speaking. The Criminal Code stipulated that a man could be charged with rape only if he had non-consensual sexual intercourse with a woman who was not his wife.
If instead he sexually assaulted the woman he had married, no crime had taken place: “... the rape law granted a man an absolute right to sexual access to his wife,” noted a 1990 Department of Justice overview.
That law was not some 19th-century oddity; it was the state of the Criminal Code in 1982, a little over four decades ago. From the perspective of 2024, the 1982-era rape law is profoundly, even bizarrely, misogynistic, infused with the offensive notion that a woman was a man’s property.
The idea that the law should defer to a man’s libido might seem to be relegated to that ugly past. Major legal reforms in the early 1980s updated the Criminal Code, ending the exemption for marital rape, broadening the definition of sexual assault and introducing rape-shield laws.
But that history lingers, as a recent case in British Columbia makes all too clear. Last fall, a B.C. man was sentenced after pleading guilty in June to voyeurism, a sexual offence under the Criminal Code with a maximum sentence of five years in prison.
The 43-year-old man, whose identity is subject to a publication ban, rented a room to a female student. The woman eventually discovered that the toothbrush charger in her bathroom (which she shared with the man’s teenage daughter) was in fact a spycam. Evidence was presented that the man had recorded video of the woman while she was naked or partly clothed.
At the man’s sentencing hearing, the Crown’s submission to the judge included a reference to a psychiatric assessment that linked the man’s offence to “marital intimacy deficits.” The judge accepted the findings of that psychiatric assessment, saying “... it appears that marital intimacy deficits contributed to the offending conduct,” according to an audio recording of the Oct. 26 hearing given to The Globe and Mail.
“Marital intimacy deficits” were one of the factors that led the judge to grant the man a conditional discharge, meaning that he will not have a criminal record once he completes 30 months of probation.
Strip away the veneer of clinical language and it is clear that weight given to “marital intimacy deficits” is a throwback to the ugly past of the Criminal Code: the man’s actions, if not excused, were at least mitigated by his wife’s decision to sleep with him less than he wanted. His libido was not being properly tended to by his spouse, and so his violation of his tenant’s privacy and dignity was less grave.
It is an outrageous thought, both for women (who remain the chief victims of sexual crimes) and for men (who remain the chief perpetrators). For women, the B.C. incident is a sad reminder, if any were needed, that sexism remains embedded within the legal system, if somewhat better concealed than in decades past. And it is deeply insulting to men, who are implicitly being told that they are controlled by their sexual drives.
B.C. Attorney-General Niki Sharma has been vocal in her criticism of the decision, posting on X that “there are no good excuses to be a sexual predator.” That is blunt language – and exactly what the situation deserves, rather than sanitized euphemisms, despite ill-considered objections from the Canadian Bar Association and the BC Law Society.
In an interview, Ms. Sharma was careful to stress that she has no intention to intervene in any specific case. (Indeed, unless there were an appeal, which seems unlikely, the voyeurism case is at an end.) Instead, her interest is in driving a broader examination of the legal system and the problem of sexualized violence. Low rates of reporting are of a particular concern, she says. Updates to family law and a dialogue with the B.C. Prosecution Service about guidelines for Crown prosecutors are also part of the effort.
Those guidelines need to be revised to make it clear to all prosecutors that an offender’s lack of sexual satisfaction cannot be a mitigating factor in sentencing.
If the B.C. Prosecution Office won’t act promptly, Ms. Sharma should invoke her power to issue a public directive to that effect.
And if the office needs help with wording, here’s a suggestion: There are no good excuses to be a sexual predator.