https://orcid.org/0000-0001-9417-1799
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Abstract
Sexual assault is among the most challenging offenses to investigate and prosecute, a reality that is exacerbated when the perpetrator is a police officer. In this article, we analyze the attrition of 689 reports of police-involved sexual assault made to the Ontario Special Investigations Unit, between 2005 and 2020. The findings reveal that the vast majority of sexual assault reports do not result in criminal charges, with only 1.59% of complaints resulting in a conviction and sentence. We situate these findings within the wider context of criminal justice responses to sexual violence and police oversight and make suggestions for reform.
ACKNOWLEDGEMENTS
The authors thank Brendan Dell for research assistance and Dennis Baker for providing helpful comments on a previous version of this article. We also wish to thank the editors and reviewers of Women and Criminal Justice for their helpful feedback.
DISCLOSURE STATEMENT
No potential conflict of interest was reported by the author(s).
Notes
1 The statutory framework for the SIU, including its jurisdiction are found in Special Investigations Unit Act, 2019, S.O. 2019, c.1, Sched. 5.
2 In 2018, Statistics Canada in consultation with the Canadian Association of Chiefs of Police conducted a review of how police forces across the country classify reports as “founded” or “unfounded,” and found significant discrepancies across the country. For this reason, there have been efforts to re-define unfounded to solely include instances where it is determined that no offense has occurred. Prior to this development, some police forces erroneously described instances where there the police believe that an offense likely did occur but proceeded to not lay charges due to little supporting evidence. This means that Statistics Canada data on “unfounded” incidents prior to 2018 likely report higher rates of unfounded reports than what the true figure should be, see the Canadian Centre for Justice Statistics (Citation2018) for a detailed discussion on these developments.
3 Half of sexual assaults did not proceed to Court during the period under study (2009–2014), compared to only one in four of physical assaults.
4 While popularized in 2017, it is important to note that #MeToo was in fact built upon the important work of long-time civil rights activist and organizer, Tarana Burke (Jaffe, Citation2018). Nearly 10 years before the #MeToo hashtag exploded, Burke founded a non-profit organization and campaign called “MeToo” aimed at supporting young, racialized, women who had experienced sexual violence (Jaffe, Citation2018).
5 Kraska and Kappeler (Citation1995) make similar observations.
6 Sexual offences include crimes such as sexual interference, exploitation, voyeurism, and child pornography, and can be found in sections 150.1–174 of the Criminal Code of Canada. Sexual assault is found in section 271. There is no specific crime of rape in Canadian criminal law, instead the term used is sexual assault, which encompasses a wider range of conduct.
7 R.S.C., 1985, c. C-46.
8 R.S.O., 1990, c. P.15.
9 The SIU was established in 1990 but did not begin publishing internal statistics until 2005.
10 This figure may not be exact as the SIU changed its reporting practices in 2015. From 2005 to 2014, the agency reported data that corresponded to the fiscal year. In 2015, they shifted to reporting data based on the calendar year. Therefore, there could be some overlap in the aggregate number of complainants reported in the fiscal year of 2014–2015, and the calendar year of 2015.
11 We used CanLII and Westlaw for court transcripts, and multiple newspaper databases including the Canadian Business & Current Affairs Database, Canadian News Online, the Canadian Newsstream, Canadian Periodicals Index Quarterly, Factiva, and Toronto Star-ProQuest Historical Newspapers.
12 In notable exceptions the releases will also contain some demographical information about the complainant and the context surrounding the event. We did not systematically collect this information since it was not a standard practice.
13 As prescribed by the Special Investigations Unit Act, 2019.
14 Section 34(6) of The SIU Act states: “If the incident investigated under section 15 was the reported sexual assault of the affected person, and the SIU Director is of the opinion that the person’s privacy interests in not having the report published clearly outweighs the public interest in having the report published, the SIU Director may decide not to publish the report, subject to prior consultation with the person.” There were two notable exceptions in 2020 and two in 2021 where the SIU released a full director’s report into unsubstantiated sexual assault investigations—however, this practice is exceptional and thus the reports were not included in our study.
15 As mentioned in the text, this rate reflects only those complainants for which demographical information was available.
16 This is not a perfect or infallible comparison. The way Statistics Canada and police forces operationalize “unfounded” has undergone changes due to problems of disparity, where some police forces were under or over reporting “unfounded” cases based on erroneous interpretations of the definition of “unfounded.” Additionally, the SIU’s definition of “terminated” (which, we use as a measure of the unfounded rate), is slightly broader to also include cases that fall outside of SIU jurisdiction. Nonetheless, the discrepancy in unfounded rates identified here are important and offers one of the only ways to empirically measure how the legal and investigatory outcomes of police officers differ from the general public.
17 We exclude in this calculation investigations that are still ongoing or were re-directed elsewhere. For instance, in 2021, a number of investigations linked to the OPP Wellington were transferred to the OPP to investigate due to complex jurisdictional issues.
18 The charging rate was calculated using data from the Uniform Crime Reporting Survey. The UCR Survey is administered annually by Statistics Canada and includes only crimes that were reported to the police. Specifically, we calculated this range by dividing the number of sexual assault incidents “cleared by charge,” by the number of “actual incidents” of sexual assault reported each year. This rate is comparable to the national rate of sexual assault incidents “cleared by charge,” which has fluctuated from 41% to 46% between 1998 and 2015 (Statistics Canada, Citation2019).
19 We were unable to identify whether the incident took place on- or off-duty in 14 cases. It is quite possible that the on-duty incidents are overrepresented in our study because these cases are perhaps more likely to receive news coverage. Part of this plays into tropes about what constitutes “true” sexual violence, and what is ultimately deemed newsworthy. For example, sexual assault that is committed off-duty by a police officer on a personal friend or family member would probably not garner an equal amount of media attention as an on-duty incident between strangers.
20 This finding only reflects the cases in which we could locate information following charges. The number could be lower or higher considering that there are 14 cases that we were unable to locate information.
21 There is no statute of limitations for sexual assault in Canada.