Odeta E. Rizea
My latest research, related to the topic of women and the law, involved a comparative study of the sentencing stage between Canadian and American gang rape case law,1 research that was an integral part of Special Topics in Law: Sexual Assaults Offences course.2 Gang rape is an aggravated sexual assault that does not discriminate against class, but discriminates against gender. Consulted case law shows that complainants are always females.3 While analyzing how trial judges balance the denunciatory purpose4 and the fundamental principle of sentencing5 along with aggravating and mitigating factors6 in sexual assaults with multiple offenders, without infringing upon convicts’ rights and denying their entitlement to the principle of parity,7 I became aware of an additional pressing issue common to both jurisdictions. Half of the consulted cases reveal a gang rape pattern,8 which emerges through a subtle, yet undeniable, degree of planned and deliberate actions of the assailants.9 The main components of the aforementioned pattern include: the instigator, the circumstantial and geographical background where the said offence took place, and finally, the role that alcohol, drugs and pornographic movies play in this pattern that ultimately leads to the most violent of sexual assaults. The insurmountable hurdle for Crown Prosecutors is an evidentiary one, namely the lack of probative evidence to show offenders’ planned and premeditated actions.10 To address this issue, the following short article intends to demonstrate that whenever factual settings reveal orchestrated gang rapes, in order to avoid undermining the nature and gravity of aggravated sexual assault offences, defense should be stomped from arguing offender’s opportunistic character as mitigating circumstances.
To say that the offender is simply an opportunist and not a calculated premeditating individual flies in the face of the nature and gravity of aggravated sexual assault when the totality of the evidence hints towards the offenders’ organized actions, their setting the stage for a gang rape to occur.11 For instance, a victim may be lured onto the offenders’ domicile by one of the assailants, provided with alcoholic drinks and illegal substances, invited to playfully wrestle with the assailants, and made to watch a pornographic movie. This sequence depicts the typical gang rape pattern and prelude to a horrifying sexual assault.12 The pattern continues until the catalyst for the gang rape occurs: one of the offenders decides to either push the victim in a closet, or bedroom, and starts raping her while others are pinning her down, and/or also raping her and/or fighting over who gets her next.13 The threats, the violence, the cruelty and brutality, the gang activity and the vulnerability of the victim are all inherent to this offence.
Finally, gang rape cases do not revolve around the issue of consent, but around common intention and deliberate actions of the assailants. Case law makes it abundantly clear that the victim at no point in time consented to any sexual activity with the assailants, even though the victim’s capacity to consent has been vitiated with alcohol and/or drugs by the offenders.14 Hence, assailants’ active efforts to impair the victim’s capacity to consent through drugs and alcohol point towards two important elements in criminal law: common intention15 of offenders and planning and deliberation16 of acts. First of all, in sexual assaults with multiple offenders, establishing assailants’ liability under section 21(2) CCC is a straightforward process. All offenders in the previously mentioned cases fulfill the “intention in common” criterion: they have common intention, unlawful purpose and they know or ought to have known of the probable commission of the offence.17 They are clearly parties to the offence, hence, they are held liable. Second of all, proving the “planned and deliberate” element in gang rape cases is somewhat of a thorny issue from an evidentiary stand. The Supreme Court of Canada (SCC) held that “in criminal law […] the expression ‘planned and deliberate’ means the carefully thought out design which precedes the carrying out of an unlawful act. So it is the commission of an unlawful act after having thought about it. It is an act which is planned and desired.”18 This definition echoes the gang rape pattern previously discussed. It is undeniable that from a practical perspective, the lack of probative evidence needed to demonstrate offenders’planning and premeditation of an alleged orchestrated gang rape remains a considerable hurdle for the prosecution in these cases. Nevertheless, offenders’ acts should be considered as deliberate. The SCC concluded that while planned could be defined as a “scheme [that] was conceived and carefully thought out before it was carried out”, deliberate referred to an action that was “not impulsive”.19 The meaning of deliberate leaves no room for opportunism as a mitigating factor. More so, deliberation combined with offenders’ common intent excludes unwary, thoughtless, imprudent and spontaneous acts, therefore rejecting the possibility for defense to argue assailants’ opportunistic character in gang rape cases that foreshadow a setting of the stage.
Gang rape victims do not benefit from an escape similar to that of the complainant in Sansregret. They cannot “hold out some hope of reconciliation” to avoid physical injury by the accused.20 This is why sentencing judges take the time to underline that one “cannot imagine anything more degrading than a gang rape to a female or anything more shattering to a female’s sexual integrity. This is indeed a very serious sexual assault and there is bound to be emotional trauma to the complainant for many years.”21 The nature and the gravity of this offence are obviously considered as aggravating factors and the offence itself, as “deserving of a significant sanction so as to demonstrate society’s abhorrence of the conduct and deter others from committing similar offences.”22
(1) My research is based on the following cases: R v Dhillon, 2006 BCCA 531 (available on CanLII), R v Dow, 1994 CanLII 6993 (NB CA), R c Virgile, 2007 CanLII 1229 (QCCQ), R v Michel, Michel and Marlowe, 2005 NWTSC 94 (available on CanLII), R v Steward, 2001 SKCA 40 (available on CanLII), Alvarez v State (1989), 767 S.W.2d 253 (Tex Ct App), Miranda v State (2012), 391 S.W.3d 302 (Tex Ct App), Wheelock v U.S. (2013), Not Reported in F.Supp.2d (Wis Dis Ct), People v Funtanilla (1991), 1 Cal.App.4th 326 (Cal Ct App), People v Morrow (2013), Not Reported in Cal.Rptr.3d (Cal Ct App), People v Robles (2015), Not Reported in Cal.Rptr.3d (Cal Ct App), People v Singh (2013), 109 A.D.3d 1010 (NY Sup App Div). This case law excludes gang rapes that occurred in the Army/Forces, prisons or penitentiaries as well as gang rapes that were followed by the death of the victim.
(2) Fall semester 2015, taught by Me Sara Henningsson.
(3) Supra note 1.
(4) Criminal Code of Canada, RS C 1985, c C-46, at s 718(a). Criminal Code will be hereafter abbreviated as CCC.
(5) s 718.1 CCC.
(6) s 718.2 CCC.
(7) s 718.2 CCC.
(8) I came up with this term.
(9) The cases that I refer to include: R v Dhillon, 2006 BCCA 531 (available on CanLII), R v Dow, 1994 CanLII 6993 (NB CA), R c Virgile, 2007 CanLII 1229 (QCCQ), Alvarez v State (1989), 767 S.W.2d 253 (Tex Ct App), Miranda v State (2012), 391 S.W.3d 302 (Tex Ct App), Wheelock v U.S. (2013), Not Reported in F.Supp.2d (Wis Dis Ct).
(10) R v Michel, Michel and Marlowe, 2005 NWTSC 94 (available on CanLII) at 5.
(11) R c Virgile, 2007 CanLII 1229 (QCCQ) at para 3, R v Dhillon, 2006 BCCA 531 (available on CanLII) at paras 13-14.
(12) Supra note 9.
(14) Supra note 9. This is particularly problematic in cases where the victim is under eighteen years of age. See: R v Michel, Michel and Marlowe, 2005 NWTSC 94 (available on CanLII) at 6-7, R c Virgile, 2007 QCCQ 1229 (available on CanLII) at para 11, People v Robles, Not Reported in Cal.Rptr.3d (2015) at page 1, para 1.
(15) R v Briscoe, 2010 SCC 13,  1 SCR 411.
(16) R v Nygaard,  2 SCR 1074, R v Aalders,  2 SCR 482. See also s 231 CCC.
(17) S 21(2) CCC, R v Kirkness,  3 SCR 74 at 105-111, R v Briscoe, 2010 SCC 13,  1 SCR 411 at paras 7 and 17.
(18) R v Aalders,  2 SCR 482 at 503.
(19) R v Nygaard,  2 SCR 1074 at 1084.
(20) Sansregret v The Queen,  1 SCR 570 at para 2.
(21) R v Dow, 1994 CanLII 6993 at 2 (NB CA).
(22) R v Michel, Michel and Marlowe, 2005 NWTSC 94 (available on CanLII) at 3. The specific pattern is inapplicable to cases where the victim was kidnapped (see R v Michel, Michel and Marlowe, 2005 NWTSC 94 (available on CanLII)) or met the assailants randomly in a public place prior to the aggravated sexual assault (see People v Robles (2015), Not Reported in Cal.Rptr.3d (Cal Ct App)).