Colonization through Disclosure: Confidential Records, Sexual Assault Complainants and Canadian Law
| Author | Lise Gotell |
| DOI | 10.1177/a018600 |
| Published date | 01 September 2001 |
| Date | 01 September 2001 |
| Subject Matter | Articles |
COLONIZATION THROUGH
DISCLOSURE: CONFIDENTIAL
RECORDS, SEXUAL ASSAULT
COMPLAINANTS AND
CANADIAN LAW
LISE GOTELL
University of Alberta, Canada
ABSTRACT
This article explores the Canadian experience of widened access to sexual assault com-
plainants’ private records. It dissects legal developments from the mid-1990s, when
the Canadian Supreme Court established a liberalized disclosure regime in the land-
mark O’Connor decision. A legislative reform passed in 1997 that sought to establish
a stricter regime was recently upheld and at the same time weakened by the Supreme
Court in Mills. The article contends that access to complainants’ records stands as a
critical example of how a liberal legalistic discourse of sexual assault is extending its
hegemony by colonizing and silencing, in particular, feminist and therapeutic dis-
courses. At issue is the relative status of legal ‘Truth’ and dissonant and emergent
feminist narratives, as well as our ability to understand and speak about sexual viola-
tion outside of the narrow confines of law.
I had to quickly learn what the ramifications of the O’Connor decision meant
for my case . . . I went to the application hearing on the Friday. I just wanted
this guy to leave me alone. The ordeal made me feel that I was the crazy one
with all the psychological problems not him . . . As I listened to the defence
lawyer attack my psychological state, it was very difficult for me not to scream
out ‘that’s a lie’ – probably just the response he was looking for . . . even if the
records were irrelevant(,) (t)he effects of the application process was horrible.
Why was my sanity on trial? (One complainant’s story of a production appli-
cation; Sinclair, 1997)
SOCIAL & LEGAL STUDIES 0964 6639 (200109) 10:3 Copyright © 2001
SAGE Publications, London, Thousand Oaks, CA and New Delhi,
Vol. 10(3), 315–346; 018600
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SOCIAL & LEGAL STUDIES 10(3)
INTRODUCTION
THIS ARTICLEtells the story of how in Canada defence counsel have
gained constitutionally sanctioned entry into the therapeutic, medical,
social service and other confidential records of sexual assault com-
plainants. This is a story that has distressing implications for feminist activists
in other countries who look to legislative change to ensure the legal accept-
ance of women’s stories of sexual violation. During the 1990s, the scope of
access to complainants’ private records was radically widened in a series of
Canadian Supreme Court decisions that relied upon an almost inviolable
interpretation of the right to a fair trial.1 The liberalized disclosure regime
that ensued made Canada unique in comparative terms, allowing for almost
routine, legally endorsed intrusions into the extralegal domains where com-
plainants have chosen to tell their stories of assault. Federal legislation (Bill
C-46) enacted in 1997 in response to these legal developments sought to
restrict access to private records and affirm the equality and privacy rights of
complainants. But this legislative regime for disclosure was very quickly
found to violate the accused’s legal rights and struck down in several contro-
versial lower court decisions. The issue of disclosure was once again thrust
back to the Canadian Supreme Court in R. v Mills (1999). Canadian femin-
ists have hailed the resulting decision as a victory because it upheld the statu-
tory test for access. A careful scrutiny of Mills, however, demonstrates how
the meaning of the federal government’s disclosure legislation was seriously
undermined in a decision that privileges defendants’ rights and emphasizes
the importance of judicial discretion and authority in decisions about access.
Emerging out of this complicated push and pull between Canadian judicial
and political actors is a situation in which complainants’ extralegal stories of
sexual assault have been opened, albeit in restricted circumstances, for con-
sumption by the courts. In part, my objective here is to chronicle this develop-
ment and its consequences. Yet in departure from most of the existing
literature on disclosure, preoccupied as it has been with the legalistic dissec-
tion of key decisions, my purpose is broader. I seek to explore the topic of
access to complainants’ records as a critical example of how a liberal legalistic
discourse of sexual assault is extending its hegemony by colonizing and silenc-
ing, in particular, feminist and therapeutic discourses. At issue is the relative
status of legal ‘Truth’ and dissonant and emergent feminist narratives, as well
as our ability to understand and speak about sexual violation outside of the
narrow confines of law.
DISCLOSURE AND THE CREEPING HEGEMONY OF A LIBERAL
LEGALISTIC DISCOURSE OF RAPE
In many ways, the sexual assault trial represents a central act in what Butler
refers to as the performativity of gender (1993: 12–16). Through it we
can observe the endless repetition of a heteronormativity’s key scripts: the
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GOTELL: COLONIZATION THROUGH DISCLOSURE
317
assertion and reassertion of an active, uncontrollable male sexuality and a
passive female sexuality; the incredibility of sexual coercion; and the con-
struction of women as more emotional, less rational and less reliable than
men. In short and as Smart insists, the rape trial confirms what we already
know about heterosex and about masculinity and femininity. The rape trial
illustrates some of the central problems that feminists have identified in law
including the ‘problem of legal method’, ‘the masculinity of law’, the ‘dis-
empowerment of women’ and the celebration of all these things (Smart, 1995;
84).
But constitutional decisions on the issue of disclosure, removed from the
events of specific cases, have very little at all to say about women. The images
and assumptions about heterosex and women’s (in)credibility that virtually
leap from the page in sexual assault trial decisions2 are obscured beneath an
almost single-minded focus upon the accused’s legal rights. It is of, course,
a function of constitutional discourse that issues and events become
unhinged from context and are transformed into abstracted battles over
rights (Fudge, 1989). In constitutional decision making in the area of sexual
assault law, the dyad of state versus accused is highlighted as the only legally
relevant conflict. The interests and rights claims of complainants fade into
the background or else are subsumed by their legal construction into the
interests of the state (McInnes and Boyle, 1995). Despite the Canadian
Charter’s enunciation of equality rights3 and despite statutory recognition
of the equality interests of complainants in sexual assault legislation, consti-
tutional decisions concerning disclosure seem resistant to equality analysis.
Nevertheless, what is unstated about women’s subjectivity and sexuality in
these cases speaks volumes; it forms the backdrop against which the meaning
of rape (and by extension ‘normal heterosex’) gets constructed within liberal
legalistic discourse.
Canadian judicial decisions that support a wide scope for the disclosure of
sexual assault complainants’ private records illustrate what Smart refers to as
‘the creeping hegemony of legal discourse’.4 Against feminist efforts to open
up spaces for alternative and complex discourses of sexual violation stands
the narrow, linear and increasingly restrictive liberal legalistic construction of
rape. The liberal legalistic construction is premised on a conception of rape
as a discrete and isolated incident – as a violent sexual incident and a matter
of individual deviance. Constructed as a crime, the ‘reality’ of rape (that is,
whether or not a set of events can properly be called rape) can only be dis-
cerned through the rigorous application of legal method. Through a careful
consideration of all ‘relevant’ evidence and through an adversarial confron-
tation between the accused/defence attorney and the crown prosecutor, it is
assumed that judges will be able to arrive at the ‘Truth’ of the matter at hand
– a determination of the guilt or innocence of the accused. This ‘Truth’ is
empowered by the manner in which law is viewed as akin to western science,
capable of revealing reality through disciplined, ‘objective’ and ‘impartial’
consideration of (legally relevant) facts. The rape trial as the stage of this dis-
cursive play takes the form of an abstracted exercise of logic unrelated to the
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SOCIAL & LEGAL STUDIES 10(3)
context of sexual interactions (Dawson, 1987–8: 316). Coherence, consis-
tency and the rational knowing subject are highlighted within this discursive
arena where everything turns upon the consent/coercion dichotomy and the
only legally relevant conflict is between the state and the accused.
As feminists have long argued, the liberal legalistic construction of rape,
although variable and evolving, is one that has tended to disqualify women’s
experiences of violation (MacKinnon, 1987: 86–8; Smart, 1989: 26–49).
While my analysis follows from this well-established claim, I do not intend
to invoke the experience of the ‘really’ raped woman against the distortions
of legal discourse. This form of epistemic strategy assumes that law acts
upon pre-existing gendered subjects and disregards the role of rape law in
constituting masculinity, femininity and the nature of their relation. The
claim that women’s true ‘experience’ of violation can be used to undermine
and challenge the...
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