Sexual Assault and the Limits of the Criminal Justice System

Sexual assault refers to any non-consensual sexual contact. It is widely acknowledged as a gendered crime since most victim-survivors are women and girls, while most perpetrators are men and boys (Cotter 2024). Certain groups are also disproportionately affected, including Indigenous women and girls, sexual minorities, and women with disabilities (Conroy and Cotter 2017). 

In Canada, sexual assault is an offence under the Criminal Code (s. 271, s. 272, s.273) and can be prosecuted through the criminal justice system. However, much of the feminist legal and criminological scholarship has highlighted significant limitations in the criminal justice system’s capacity to deliver justice for victim-survivors of sexual assault. These limitations include:

- Few perpetrators facing justice. This is partly because sexual assault is the most underreported crime, with only about 5% of incidents being reported to the police due to reasons such as shame, fear of disbelief, lack of evidence, or the belief that the incident is not significant enough (Johnson 2017; Conroy and Cotter 2017). Sexual assault cases reported to the police are also dropped as they move through different stages in the criminal justice system, resulting in few prosecutions and convictions. The gap between the number of reported cases and convictions is often called “the justice gap” (Temkin and Krahé 2008). This issue is frequently linked to discriminatory attitudes toward sexual assault and victim-survivors (for an overview of the literature and statistical evidence, see Johnson 2012). Ultimately, low reporting and conviction rates limit the number of perpetrators who face justice for committing sexual assault. 

- Victim-survivors feeling revictimized. While this does not apply to every victim-survivor, many who report their sexual assault encounter negative experiences with the criminal justice system. Such experiences include invasive questioning, unresponsiveness, negative case outcomes, disbelief, judgment, and victim-blaming attitudes from criminal justice professionals, which are well-documented in the literature (see, for example, Maier 2024; Murphy-Oikonenet al. 2022). These negative interactions often lead victim-survivors to feel as if they have undergone a second victimization. This affects their emotional well-being by causing additional trauma and distress (Campbell et al. 2009). 

- Unfulfilled justice needs. In the criminal justice system, a successful case usually results in a conviction and sentencing. While this may satisfy the justice needs of some victim-survivors, research indicates that perceptions of justice vary from person to person and can evolve over time (McGlynn and Westmarland, 2019). Victim-survivors often seek validation, community safety, and the restoration of their dignity (see, for example, Clark 2015),but these needs often conflict with what the criminal justice system can provide. For instance, the rigid structure and adversarial nature of a criminal trial prevent victim-survivors from sharing their full story and receiving acknowledgment for the harm they experienced (Herman 2005).

These limitations persist despite decades of feminist activism and legal reforms across jurisdictions globally (for an overview of policy changes in the Canadian context, see Gotell 2010; 2023). In fact, many scholars have concluded that the impacts of criminal justice reforms are minimal in practice (see, for example, Craig 2018; Johnson 2012).

The limits of the criminal justice system underscore the need for feminist policy scholars to interrogate its primary role in addressing sexual assault and explore alternative ways to achieve justice for victim-survivors (for a discussion on alternative justice responses to sexual assault, see Powell et al. 2015).

‍