Rape in the Criminal Law and the Victim's Tort Alternative: A Feminist Analysis

NORA WEST

ABSTRACT

In her note, the author discusses the continuing existence of rape in Canadian society and the apparent failure of the criminal law to deter its commission. Surveying feminist explanations of the roots of the crime, she suggests that rape is a violent manifestation of an imbalance of power between genders. Rapists attack women as a means of asserting physical and psychological control over them. Women's experience of these attacks can produce self-identification with victim roles, keeping these women - and women as a gender - vulnerable to further instances of physical, emotional or economic abuse. Because the criminal law and its accompanying rules of evidence do not take into account the sociological framework of the crime, they cannot effectively combat the problem. Therefore, solutions must be looked for elsewhere. In examining the extra-legal strategies that have been used successfully by certain women in their fight against rape, the author submits that the most effective responses are those that place women in a position of power vis-a vis their attackers and that permit them to challenge their identity as potential victims. The suit in tort for rape allows women to "prosecute" their attackers and to articulate from a feminist perspective the elements of the crime. As such, the use of the tort suit for rape may prove to be a powerful tool in the fight against women's sexual subjugation in society.

------------------------------------------------------------------------------------------

Citation: (1992) 50(1) U.T. Fac. L. Rev. 96.
Copyright © 1992. University of Toronto Faculty of Law Review.
All rights reserved.