Breaking the Silence on Father-Daughter Sexual Abuse of Adolescent Girls: A Case Law Study

The Peter A. Allard School of Law 2020

Breaking the Silence on Father-Daughter Sexual Abuse of Adolescent Girls:
A Case Law Study

Janine Benedet
Allard School of Law at the University of British Columbia,
benedet@allard.ubc.ca
Isabel Grant
Allard School of Law at the University of British Columbia,
grant@allard.ubc.ca
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Part of the Citation Details Janine Benedet & Isabel Grant, "Breaking the Silence on Father-Daughter Sexual Abuse of Adolescent Girls: A Case Law Study" (2020) 32:2 CJWL. This Article is brought to you for free and open access by the Allard Faculty Publications at Allard Research Commons. It has been accepted for inclusion in All Faculty Publications by an authorized administrator of Allard Research Commons. Breaking the Silence on Father-Daughter Sexual Abuse of Adolescent Girls: A Case Law Study Janine Benedet and Isabel Grant De toutes les étapes de leur vie, les femmes sont plus souvent la cible de violences sexuelles à l’adolescence. La plupart du temps, les filles font l’objet de violences sexuelles aux mains d’hommes qu’elles connaissent et en qui elles ont confiance dans leurs propres familles et pourtant, ce type d’agression a largement échappé à l’attention du mouvement #Moiaussi. Dans le présent article, les autrices désirent relancer la discussion sur les agressions sexuelles commises par les pères sur leurs filles adolescentes. L’article fait partie d’une étude plus vaste qui examine toutes les .décisions judiciaires canadiennes concernant des infractions d’ordre sexuel contre des filles âgées de 12 à 17 ans sur une période de trois ans. L’examen de ces cas ré.vèle que plus d.un quart de tous les cas d’agression sexuelle signalés contre des ado.lescentes sont commis par les beaux-pères et les pères biologiques. Les autrices ont trouvé des similarités entre les comportements violents et le contrôle coercitif décrit par les femmes adultes dans leurs relations intimes avec des hommes exerçant un contrôle dépassant la seule sphère sexuelle. Même si la proportion de déclarations de culpabilité est relativement élevée, elle est plus faible pour les pères que pour les autres groupes d’agresseurs. Les autrices concluent que les agressions sexuelles commises par les pères sont les plus faciles à perpétrer, les plus difficiles à mettre au jour et les plus dommageables pour les victimes. Adolescent girls are targeted for sexual violence at a rate higher than females at any other life stage. Girls most often face sexual violence at the hands of men who they know and trust within their own families, yet this type of abuse has largely evaded scrutiny from the #MeToo movement. In this article, the authors seek to revitalize the discussion of sexual abuse against adolescent girls by their fathers. The article is part of a larger study that examined all reported Canadian judicial decisions involving sexual offences against girls between the ages of twelve and seventeen inclusive over a three-year period. An examination of these cases shows that more than one-quarter of all reported decisions involving sexual assault against adoles.cent girls were committed by stepfathers and biological fathers. The authors found patterns of violence similar to those of coercive control described by adult women in intimate relationships, with men exerting controlling behaviours that extended beyond the sexual activity itself. While conviction rates were relatively high, they were lower for fathers than for other groups of perpetrators. The authors conclude that sexual abuse by fathers may be the easiest to perpetrate, the hardest to uncover, and the most damaging to victims. Introduction Sexual assault is committed against teenage girls more often than any other demo.graphic group, with thirteen and fourteen being the peak ages for victimization.1 Much of the legal scholarship in this area, especially in the United States, consists of critiques of the criminal law’s application to sexual activity between teenage girls and young men through so-called “statutory rape” laws.2 In an earlier article, we outlined our findings from a study of sexual assault against adolescent girls by look.ing at the types of cases that are coming before the Canadian courts.3 We examined over six hundred judicial decisions involving 625 girls between the ages of twelve and seventeen inclusive from all Canadian provinces and territories over a three-year period. We found that prosecutions were not targeting very young men just outside the “close-in-age” exceptions to the age of consent and that, in fact, the average age difference between the complainant and the accused was almost sixteen years if fam.ily relationships were excluded and over nineteen years when they were included.4 We argued that the focus on age of consent in the literature on sexual assault against adolescent girls risks obscuring the kind of sexual abuse by older adult men that makes up the large majority of these cases. Media accounts, by contrast, tend to focus on cases of adults with institutional .authority abusing large numbers of girls (and sometimes boys), such as sports coaches or priests.5 This attention is important; the exposure of sexual abuse within Indian residential schools,6 religious institutions,7 facilities for persons with .disabilities,8 and sports programs,9 to name only a few examples, has been instructive as to how power operates to insulate abusers and to silence victims. It has also provided an opportunity to dismantle or change some of these institutions. Our previous research on the sexual abuse of women with mental disabilities and older women has engaged with some of these questions.10 Yet our research revealed that, while a small number of cases involved abusers in positions of institutional authority, like teachers or coaches, the largest number of cases involved prosecutions against fathers and other male family members.11 Almost half of all prosecutions involved an accused who was a male family member of the complainant and, in more than a quarter of all cases, was the girl’s biological, adoptive, step, or foster father.12 In this article, we seek to explore father-daughter sexual abuse cases in more detail to see what we can learn about the features of sexual abuse of teenage girls by fathers, the barriers to successful prosecution of this abuse, and the ways in which such cases are treated by the criminal justice system. We use the term “fathers” broadly to refer to biological, adoptive, step, and foster fathers. Where we are making distinctions among these groups, we use the more specific language such as biological fathers, stepfathers, and so on. The cases themselves demonstrate the similar patterns of offending by fathers, which can involve grooming and escalating sexual behaviour over time. We also saw patterns of abuse similar to those described in the literature about coercive control in the context of male intimate partner violence against adult women.13 The cases reveal the extraordinary barriers these girls have to overcome in order to have their reports believed and acted upon. While conviction rates were relatively high, they were lower for fathers than for other groups of perpetrators. There are still signif.icant numbers of acquittals that are difficult to explain, other than by reference to reasonable doubts that are rooted in suspicions about the truthfulness of teenage girls. While significant sentences are imposed in many cases, there is a lack of con.sistency and coherence in sentencing these cases. The sentencing judgments also paint a tragic picture of the devastating harm experienced by these girls. The abuse of trust involved in these sexual assaults, which often continue over months or even years, causes profound harm to its victims that, as demonstrated by the high number of historical cases, can last over a lifetime. We think it is crucial not to lose sight of the fact that women and girls most often face sexual violence at the hands of men that they know and trust within their own families, an institution that has thus far largely avoided scrutiny in the context of the #MeToo movement.14 Attention to the barriers to successful prosecution of these cases is necessary, as one part of the essential feminist project of how to dismantle the exercise of patriarchal power within the family. We must not slip back into seeing the family as a private sphere beyond scrutiny and feminist critique. In fact, it is the most powerful social institution implicated in sexual violence against girls, and we hope that this work can contribute to reinvigorating the discussion of this pervasive problem. Father-Daughter Incest as a Site of Feminist Struggle How society recognizes and understands the sexual abuse of children, and, in partic.ular, the sexual abuse of daughters by fathers, has been contested terrain for many decades. In a 1993 article, Erna Olafson, David Corwin, and Roland Summit refer to this process as “cycles of discovery and suppression.”15 They argue that we have passed through repeated periods in which child sexual abuse is the subject of concern and alarm, followed by an attempt to minimize or silence the issue. While the liter.ature in this area is extensive, we offer a brief summary of it here because it demon.strates a pattern of resistance to holding men accountable for the sexual abuse of girls. .Sigmund Freud, who single-handedly created just such a cycle, might well be con.sidered the originator of this tension. In his 1896 work “The Aetiology of .Hysteria,” Freud proposed that symptoms of mental illness in adults could be the .result of trauma they had endured through sexual abuse as children.16 Freud suggested that the frequency of “hysteria” in women was the product of girls more .frequently being targeted for sexual abuse.17 He also suggested that incest was more common than previously suspected and was not limited to poor or otherwise disreputable families.18 Under criticism from his colleagues, Freud abandoned this theory in favour of the Oedipal complex, in which children, especially daughters, sought sexual contact with their fathers and were troubled by their own unfulfilled fantasies.19 This denial led to a lack of scholarly interest in child sexual abuse,20 which was also reflected in the public policy of the time. Although some first-wave feminists in England and the United States tried to press the issue in the domains of criminal justice and public health, they faced stiff opposition.21 Scientists continued to look for explana.tions for the outbreak of gonorrhoea in pre-pubescent girls that were attributable to anything other than the obvious—that they were being abused sexually by infected adult men, usually within their own families.22 When researchers did acknowledge the existence of sexual contact between adults and children, they often blamed the children.23 In a widely cited 1937 article, Lauretta Bender and Abram Blau argued that, while the “seduction” of children by adults is a recognized phenomenon, it is relatively harmless to the child.24 Moreover, they “frequently … considered the possibility that the child might have been the actual seducer rather than the one in.nocently seduced.”25 Where the sexual contact was between fathers and daughters, mothers were also blamed. Oedipal theories posited that mothers in these families were neglectful or absent in relation to their marital duties, which encouraged men to turn to their willing daughters to fill this void.26 By the 1970s, however, a second wave of feminist activists and scholars chal.lenged the ideas that father-daughter incest was rare, natural, and harmless. These writers argued that prevailing ideas about child sexual abuse were nothing more than a misogynist attempt to maintain patriarchal power within the family and male sexual entitlement more generally.27 While this research was not “intersectional” in the way that this term is used today, its explicit focus on white middle-class families served as a rejoinder to the prevailing assumption that such incestuous .behaviour was confined to poor, often racialized, families.28 Feminist analysis of child .sexual abuse, and father-daughter incest, in particular, was responding both to the pro.foundly sexist psychological literature described above and to the construction of “stranger danger” as the primary source of documented cases of child rape and .murder. Abuse by persons outside the family, especially when it was combined with abduction and homicide, was much harder for law enforcement and the public to ignore and provided a convenient context to further divert attention away from abuse by male family members.29 This feminist analysis of child sexual abuse met with direct backlash from those who alleged feminists were contributing to unjustified panic and wrongful convic.tions. Those who directly rejected the need for increased attention to this issue used gendered language of “hysteria” to blame feminists for creating a “moral panic.”30 Women were accused of making false complaints of abuse to gain unfair advantage in family law disputes,31 while children’s accounts of abuse were attributed to “false memory syndrome” or “witch-hunt” investigative techniques.32 The feminist analy.sis of father-daughter incest also met with indirect resistance from the development of the family systems approach to child sexual abuse. This approach does not deny the existence of sexual abuse within the family nor that abusers bear some respon.sibility for this behaviour but, rather, casts the abuse in terms of the dysfunctional or “incestuous family,” all members of which require treatment.33 The goal is to rehabilitate and reunite the family, not to punish the offender.34 The term “incestuous family” is deeply problematic in that it obscures both gen.der and power. It also carries with it an element of victim blaming that echoes earlier theories of the seductive child as well as of mother blaming that repackages the Oe.dipal theories of the daughter as a replacement wife. This approach remains influen.tial. For example, in a 2017 article, Keith Beard and colleagues criticize the “victim advocacy model,” contrasting it with a humanistic approach that rehabilitates fathers without incarceration, thus “maintaining the marriage in the nuclear family, and re.unification of the family.”35 The authors rest this approach on the conviction that much behaviour that is labelled abusive may be “part of the normal human develop.mental process” (what they call “affection-based incest”) and only harmful when it is labelled as such.36 Mothers are blamed for trapping men in “problematic marriages to women who are unable or unwilling to provide affection” and for tempting men by placing them in the role of caregiver of female children.37 We believe that these profoundly sexist ideas should not continue to determine the appropriate response to what are, in fact, acts of violence.38 We believe that the insights offered by a feminist analysis of father-daughter sex.ual abuse are crucial to understanding why this abuse can so often occur with im.punity and why it has such a profoundly destructive impact on girls. When large numbers of girls are targeted for sexual abuse by men who are supposed to love and care for them, and who are in positions of both trust and authority, this forms a key component of the male violence against women and girls that creates and sustains the intersecting inequalities of sex and age. In other words, the patriarchal family struc.ture facilitates and shields from view fathers who sexually abuse their daughters.39 Our Research Questions In looking at these cases, we wanted to consider a number of related questions and factors to shed light on this hidden form of sexual abuse. In each of these lines of inquiry, we sought to evaluate whether common assumptions about teenage girls and sexuality were borne out by the case law and, if not, whether they amounted to myths and stereotypes with the potential to distort the response of the criminal justice system. We acknowledge that our sample is not necessarily representative of all sexual abuse of adolescent girls by their fathers over this period of time or even of all cases that lead to charges. These cases may be weighted towards more serious forms of abuse since these are more likely to be reported and prosecuted. We do not have .access to jury verdicts that were not appealed nor do we have access to cases where the Crown declined to proceed, and we recognize that particular factors may be concentrated in those cases. We also, of course, do not have cases where girls tried to report to some adult but were dissuaded, disbelieved, or silenced. However, we believe that with the large number of complainants involved in our study, covering every level of court in every Canadian jurisdiction over a three-year period, we have been able to draw some conclusions about the types of abuse being prosecuted in our courts. First, we wanted to understand what kind of sexual abuse is being perpetrated against girls in these cases, including its duration, the extent of the sexual acts in.volved, and its impact on the victims. We also wanted to shed some light on the coercive techniques fathers used: were these cases in which girls were groomed so as to normalize the abuse; were girls subjected to additional force or threats; were they assaulted when they were asleep or intoxicated? Second, we also wanted to consider the role that pornography might play in these cases. We know that many young people are routinely exposed to violent and .degrading pornography as part of their online media consumption. Many boys .report frequent pornography exposure from a young age,40 with smaller numbers of girls also having viewed these materials.41 What boys and men see in pornography influ.ences their sexual expectations; it can become a “preferred sexual script.”42 Social science research on the effects of pornography continues to demonstrate a link be.tween pornography consumption and acceptance of rape myths as well as a correla.tion with sexually aggressive or harassing behaviour, especially where the materials present girls and/or women as enjoying or deserving force or violence.43 Perhaps most significantly, pornography presents the consent of women and girls as omni.present. Women and girls are never presented as sexually unavailable, even if there is initial refusal or disinterest. Teenage girls are typically portrayed as desiring sex with adult men. We wanted to know whether pornography was present in these cases and, if so, in what ways it impacted the sexual abuse. Third, we also wanted to examine the role of mothers in these cases. Were girls disclosing the abuse to their mothers or to other third parties? We were interested in whether judicial decisions mentioned the reactions of mothers to such disclosures and, in particular, whether mothers took steps to remove their daughters from the abuser or were instead described as believing their male partners. We believe that the role of mother blaming in these cases deserves scrutiny, especially because the role of mothers in father-daughter incest has featured so prominently in the .literature. We also wanted to know how often mothers were actually involved in the offending along with their male partner. Finally, we wanted to examine how our courts have dealt with these cases both in determining guilt or innocence and in imposing a sentence. Did fathers plead guilty to spare their daughters the trauma of a trial? In cases that went to trial, what arguments did the defence use to attempt to undermine the credibility of the com.plainant’s claim? How did trial judges evaluate these arguments and the complainant’s .evidence on the stand and was this approach being informed by an understanding of the impact of prolonged trauma on these girls? We wondered whether constructions of teenage girls as seductive or vindictive might be deployed by .counsel or the courts and whether these might influence the verdict or the sentence. Our Case Law Study In a previous article, we presented the results of our three-year case law review of sexual assault against girls between the ages of twelve and seventeen inclusive.44 Of the 625 complainants in the study, 292 girls (47 percent) reported sexual abuse perpetrated by a family member, which included foster and stepfamilies as well as biological family members. In total, 168 of these girls (27 percent) reported .sexual abuse against a father, with four girls (0.6 percent) also reporting abuse by a mother, in combination with a father.45 We found that abuse committed by a family .member usually targeted younger girls within this group but often continued over many years.46 While, on average, abuse started around the age of nine or ten, we saw cases where the abuse began as early as four years of age and continued at least until the girl was within the age group under study.47 Roughly 20 percent of the prosecutions in the larger study were historical cases, which we defined as cases involving at least a ten-year gap between the abuse and the charges being laid.48 Abuse by family members generally was overrepresented in the historical cases with approximately 70 percent of the historical cases involving intra-family abuse involving a total of ninety-one complainants.49 Of these ninety-one complainants, thirty-four (37 .percent) alleged sexual abuse by a father. All but one of the cases alleging sexual assault by a foster father were historical cases. These findings are consistent with the assertion that it is particularly difficult for girls to report sexual abuse against a father or to be believed by the authorities when they do.50 Girls in state care may face the greatest barriers in having their allegations believed and taken seriously by child welfare authorities.51 Complainants in these cases sometimes went to extraordinary efforts to reveal the sexual abuse against them after being disbelieved or otherwise silenced for years.52 Conviction rates for each category of fathers were below the overall conviction rates in our study, whereas other family members were convicted at a higher than .average rate.53 While, overall, the conviction rate was approximately 71 percent of the cases leading to a verdict, the conviction rates for biological and stepfathers were 65 percent and 61 percent respectively.54 In general, we found that, when .fathers were convicted, significant sentences were being imposed, with the majority of men being sentenced to penitentiary time.55 Nonetheless, sexual assaults by strangers were sentenced more severely than those committed by fathers, even though the abuse by fathers was rarely an isolated event and often extended over many years.56 In the following section, we highlight what we found for the 168 complainants in these cases who reported sexual abuse by a father.57 Fathers made up the single larg.est group of accused persons in our case law survey. Approximately 26 percent of the girls in our entire study reported abuse by a father.58 Put another way, 58 percent of the girls reporting abuse by a family member were abused by a father. Of the cases involving accused fathers, 62 percent of girls reported abuse against a stepfather and 32 percent against a biological father. The remaining complainants reported abuse against a foster or adoptive father. We recognize that these categories of fathers are not always distinct (for example, a stepfather might adopt his stepdaughter) and that the accused men within each category varied in the nature of their relationship to the complainant. It is important that the dif.ferences between these formal labels not be overstated. In many cases, the stepfather had lived with the complainant since she was very young and was the only father the girl had ever known.59 By contrast, there were biological fathers who only made contact with their daughters when the girls were in their teens, and the sexual abuse commenced almost immediately.60 Overall, however, most of the men in both groups were in a clear and usually exclusive male parental role with the victim at the time of the abuse. Our findings are consistent with other research that suggests that stepfathers, in par.ticular, are among the most likely sexual abusers of teenaged girls.61 Most of the step.fathers in our study occupied a parental role in relation to the complainant in the sense of supervision and authority rather than being viewed merely as the mother’s boyfriend. Why are stepfathers overrepresented relative to biological fathers in these cases? Early research on this topic has posited that the “incest taboo” might inhibit some biological .fathers from engaging in the sexual abuse of their daughters,62 while more recent research has suggested no difference in incest propensity or disgust towards incestuous behaviour between these groups, instead positing that the higher incidence of pre-.existing indica.tors of anti-social behaviour in stepfathers may be a better explanation.63 It is also possi.ble that some of the difference could be explained by differences in .reporting. Where a stepfather has been involved in a girl’s life for a shorter period of time, it may be easier to come forward against a stepfather than against a biological father. The social science research as to whether the kinds of abuse perpetrated by bio.logical fathers differ from stepfathers is also inconclusive and somewhat contradic.tory. There is some research that indicates that biological fathers who commit acts of sexual abuse are more likely than stepfathers to engage in full vaginal intercourse with their daughters, possibly out of a stronger sense of ownership and control.64 Our cases did not show any difference in this regard; roughly 42 percent of both biological fathers and stepfathers were alleged to have subjected their daughters to intercourse (vaginal and/or anal) as part of the abuse. Notably, we did not find signif.icant differences in terms of the impact of the abuse on complainants, who reported grave and long-lasting harms from abuse by both biological fathers and stepfathers. Patterns of Abuse: Grooming, Force, Incapacitation, 
and Coercive Control The cases involving biological fathers demonstrated a number of patterns to the abuse. In some cases, the fathers used prolonged grooming techniques from a young age, creating a sexualized environment in the home beginning at age nine or ten and pro.gressing from sexual conversations to massages to sexual activity as the girl reached adolescence.65 These acts were explained as sex education, sometimes with the asserted purpose of protecting the daughter from the attentions of other boys or men.66 As one complainant testified at trial about her biological father grooming her, “[h]e raised me to be .molested.”67 For example, in R v JL, the accused began to have conversations about sexual activity with his daughter when she was nine years old.68 She testified that he would explain what a male would do to a female during sexual activity and that he would want to touch her breasts and genitals and that she would enjoy that and enjoy looking at and touching a man’s penis.69 By the time she was twelve, he had progressed to touching and kissing her neck and thigh, ostensibly to simulate what a man might do to indicate his interest in her. This progressed to grinding his erect penis against her and finally to unpro.tected vaginal intercourse by the time she was thirteen years old.70 The accused told the complainant that, by doing this with him, it would stop her from doing it with other guys who would get her pregnant.71 He would give her money from time to time, which she perceived as a bribe to keep quiet.72 He told her not to tell her mother .because she would not understand and would not forgive her.73 He also used physical violence against other family members, kicking, hitting, and throwing objects when he was angry. When the complainant disclosed the abuse to her mother, they left the home and lived in a shelter with her three siblings. By the time of the trial, the mother supported the .father and pres.sured the complainant to recant or minimize the abuse to avoid .sending the father to jail.74 In other cases, girls came to live with their biological fathers in early adolescence, and the abuse started almost immediately, with fathers using the fact that they had not been involved in their daughters’ lives to act like boyfriends rather than parents.75 For example, in R v WHY, the accused had no contact with his daughter until she was thirteen years of age.76 She was having some problems, and her mother encouraged her to contact her father through Skype. Eventually, the complainant and her mother, who were residing in the United States, went to visit the accused at his home in Ontario for a week. The complainant was then sent back to her .father the following summer, when she was fourteen years old.77 Four days after she .arrived, her father began to send her text messages saying he wanted to have oral sex and intercourse with her. When she rejected this suggestion, saying that he was her .father, he told her to think of him as a boyfriend. He persisted and, for the next two months, subjected her to vaginal and oral sex on a daily basis. He also took nude photos of her.78 The abuse was discovered when the girl’s older half-sister observed the father perform.ing oral sex on the victim while she was intoxicated and asleep.79 We did not see a meaningful difference in the kinds of abuse perpetrated by step.fathers as opposed to biological fathers. The age of the daughter and the extent of the parenting role were more important in predicting the techniques used by abusers rather than formal labels. Once again, we saw cases in which the abuse was normal.ized as sex education,80 in which additional physical force was used,81 or in which the complainants were incapacitated,82 and some cases combined these features.83 The sexual acts that stepfathers inflicted on their stepdaughters included all manner of sexual activities, including touching, oral sex, and vaginal and anal intercourse. While grooming behaviours were evident in many of the cases, physical force and emotional manipulation were not mutually exclusive. When girls resisted or objected notwithstanding the grooming, fathers simply forced themselves on their daughters.84 There were also a significant number of cases in which fathers sexually assaulted their daughters while the girls were either asleep and/or incapacitated by alcohol or other intoxicants, sometimes supplied by the father.85 Out of a total of 168 complainants reporting sexual abuse by a father, forty-one of them (24.4 .percent) reported being sexually assaulted when they were asleep or intoxicated. Some girls provided harrowing accounts of trying to stay awake all night or barricading .bedroom doors in an attempt to prevent these assaults.86 We saw many cases in which fathers assumed an entitlement to control their daughter’s sexuality, although this was expressed in different ways. In some cases, fathers purchased sexual aids or sexualized clothing for their daughters and pres.sured them to use or wear it.87 In other cases, fathers used their daughters’ supposed promiscuity as an excuse to control and restrict them.88 These controlling behaviours can be seen in R c MS, where the accused was found guilty of sexually abusing the complainant beginning when she was ten years old.89 Her father accused her brother, with whom she was very close, of looking at her inappropriately.90 He physically attacked the brother and then refused to let the siblings speak to each other or spend time together, including requiring them to eat meals separately.91 The sexual abuse of the daughter started at the same time as this forced estrangement from her closest sibling and consisted of repeated acts of both masturbation and intercourse over the next seven years until she left home. During this time, the accused exerted extreme control over what the complainant wore, forbidding dresses or skirts as too reveal.ing, and sweatpants as too easy to remove.92 She was not permitted to ride the school bus and was told to hide in her room if a man came to the house.93 He justified some of this behaviour under the guise of religion.94 We were struck by how similar the behaviours in these cases were to the patterns of coercive control exhibited by male abusers in cases of domestic violence against their adult female partners. These men were asserting ownership over their daughters in the same way that abusive men assert ownership over their adult .female .partners, limiting their access to other people and exhibiting behaviours to control their .sexuality and other aspects of their lives.95 Sometimes men went so far as to .describe themselves as their daughters’ “boyfriend,” but usually these coercive patterns were demonstrated in the context of a clearly authoritarian father-daughter .relationship. Just as in male intimate partner violence against women, these .behaviours serve to heighten the fear, isolation, and helplessness of these girls.96 The Role of Pornography While child pornography offences were charged in only a small minority of cases, por.nography was used by fathers in a number of interrelated ways to sexualize the home environment and to normalize their abusive behaviour. First, girls were sometimes encouraged to view pornography as an instruction manual for how to engage in sexual activity or in the hope of encouraging interest in sexual activity.97 Second, in some cases, fathers also made pornography of their daughters, asking for nude photographs or making their own recordings.98 For example, in R v RRI, the accused had no contact with his daughter until she was the age of twelve or thirteen.99 When she began visit.ing him, he showed her pornography while exposing and touching himself. He gave her a vibrating dildo for her birthday and both bribed and pressured her to send explicit photos of herself ostensibly to other men but, in reality, to online accounts that he controlled. He rationalized this behaviour as “virtue testing.”100 Third, in a few cases, the sexual abuse itself included behaviours commonly seen in pornography, such as shaving pubic hair,101 penetration with objects,102 and bestiality.103 Victim Blaming The ways in which adolescent girls can be socially constructed as sexual tempt.resses were visible in the ways that fathers rationalized the abuse. In many of these cases, fathers blamed the daughters for initiating the sexual activity or coming on to them.104 These were clearly cognitive distortions based on the facts; we did not see any cases in which girls spontaneously initiated sexual activity with their fathers. In fact, in very few of these cases did the girls even acquiesce in the sexual activity without objection, and, in most cases, the accused had to use some combination of threats, pressure, coercion, and/or physical force.105 This included cases in which the accused hit, kicked, or choked his daughter and/or used violence towards other .family .members.106 Girls were also pinned down or physically confined in some cases.107 Some men persisted with these cognitive distortions even during sentencing.108 Victim blaming and isolating a girl from her family sometimes came together in these cases. For example, in R v CG, the accused got a court order in Jamaica com.pelling his sixteen-year-old daughter to live with him in Ontario.109 He initially did not enrol her in school and stayed home with her during the day while his wife was at work. He started the abuse by making the complainant put cream on his body. This soon progressed to intercourse during which he would pin down her arms and force her legs apart. The abuse continued for several years, and the complainant .became pregnant twice. The children were placed for adoption. Despite DNA evidence of his paternity, the accused maintained that the children were not his and that the com.plainant was “loose” and a “bad girl.”110 After the first child was born, the complainant told her aunt that her father was abusing her, but she recanted when he threatened her that she would be left alone with no one to care for her.111 The .accused’s warning was prophetic, as family members continued to support the accused and blame the complainant, leaving her without family supports at the time of trial. We saw many cases in which fathers warned girls that they would not be believed and would get in trouble or that reporting these activities would destroy the family.112 In many cases, defence counsel sought to undermine the complainant’s credi.bility by pointing to her bad behaviour in other contexts, such as skipping school or lying.113 For example, in R v SH, the accused argued unsuccessfully that the complainant fabricated her abuse allegations to deflect attention from a shoplift.ing charge.114 In some cases, this type of evidence was relied on in acquitting the accused.115 In other cases, however, judges recognized that such behaviour is both common in adolescence and may even be a product of the sexual abuse: That KB had difficulties at school, had been acting out in one way or another, had been involved in drug use, perhaps sexual relationships with other girls, and generally, that she had issues, is of no assistance here. It is not evidence of a propensity to fabricate sexual assault allegations, and is more likely to be evidence that she was subject to considerable stress such as, for example, long term sexual abuse. In the absence of expert evidence, however, I am not prepared to conclude that her acting out in various ways is evidence of anything except that she was a young teenager facing personal challenges.116 Consent Before starting this study, we wondered if we might see cases in which the defence would try to rely on the complainant’s apparent consent to her stepfather, given the lack of a biological connection. We knew of cases from the 1990s, when the age of consent was fourteen, where some appellate courts found that consent could exist in such circumstances.117 Since 2008, the Criminal Code has provided that a girl younger than sixteen cannot consent to sex with an adult.118 In most of our cases involving fathers, the abuse began well before the complainant reached the age of consent. There were only a few cases where the defence made such arguments, either with older girls or to mitigate the sentence imposed.119 In R v OR(F), the accused pled guilty to sexual exploitation of a young person in relation to the seventeen-year-old complainant.120 He had been in a relationship with her mother from the time the complainant was eight years old until she was twelve. During this time, the accused and the complainant’s mother had two children, who were half-siblings to the com.plainant. The accused kept in touch with the family and ultimately engaged in an intimate relationship with the complainant for a few months beginning just prior to her eighteenth birthday.121 The accused was sentenced to ninety days intermittent incarceration plus probation, one of the most lenient sentences we saw in our study. The Role of Mothers The reaction of mothers who received reports of abuse was varied. We recognize that the extent to which judges comment on the complainant’s mother in their reasons may itself be a product of deeply embedded beliefs about “good” and “bad” mothers. As Corry Azzopardi, Ramona Alaggia, and Barbara Fallon note, “[n]onoffending mothers of children who have been sexually abused have implicitly and explicitly borne the burden of blame for the transgressions of predominantly male offenders in the professional and public discourse, both historical and contemporary.”122 Mothers are blamed for precipitating the abuse through their absence from their expected roles and blamed for prolonging the abuse by taking the side of the abuser in an attempt to preserve their relationship. As these authors recognize, the factors that influence child sexual abuse, and mothers’ roles in responding to that abuse, are complex and constructed in a context of gendered power: While the nature of blame may have shifted over the years from claims of collusion and complicity to judgments of failure to protect, non-offending mothers continue to be held accountable, ideologically and legally, for the violent actions of men and social obligations of the state. These unreason.able expectations fail to take into account cultural variations in mothering and the challenging circumstances of women’s everyday lives, often charac.terized by limited social and material resources, intimate partner violence, conflicted loyalties, and the debilitating effects of trauma, not to mention highly effective perpetrator tactics to conceal crimes and silence victims.123 While there were certainly a number of cases where the mother of the complainant sided with her husband or male partner and asserted that the complainant’s allegations were fabricated or overstated,124 we also saw cases in which mothers immediately called police and separated themselves and their children from the abuser.125 In some cases, the mother confronted the father but then did not go to the police and instead took (sometimes futile) steps to protect her daughter, like putting a lock on the girl’s bedroom.126 There were still other cases where the complainant’s mother was not pres.ent in her life due to addiction or illness, death, physical distance, or other barriers127 or where the complainant had a particularly difficult relationship with her mother.128 These girls disclosed the abuse to friends, teachers, and other trusted adults. Overall, many girls went to extraordinary efforts to report the abuse against them.129 While in some cases the abuse occurred when mothers were absent from the home due to work,130 divorce, or other reasons, in only a small minority of cases were the girls taking on the main housekeeping or caregiving responsibilities. In a significant number of cases, the abuse started when the girl was very young and continued into adolescence, which is inconsistent with the “surrogate wife” construction of abuse .favoured by some earlier researchers.131 Some of the cases involved families who were poor or isolated, but there were also many cases of families whose situation appeared to be more affluent. The cases portrayed not only many dysfunctional and chaotic households132 but also many that appeared to be quite ordinary, in which the adults did not suffer from any addictions, there was adequate and stable housing, as well as employment providing sufficient income for family vacations and extracur.ricular activities.133 We note that there were also three cases in our sample, involving four girls, in which biological mothers were convicted of sexual offences against their teenage daughters.134 These cases were among the most serious in our sample in that they involved prolonged and repeated sexual and physical abuse and neglect. In all of these cases, the abuse was carried out along with a male spouse. In two of the cases, there was evidence that the father was physically violent to the mother and that he was clearly the main perpetrator of the sexual abuse, although the mothers also participated in sexual activity on at least one occasion and, at other times, facilitated the fathers’ sexual access or tried to intimidate the girls into keeping si.lent.135 In neither case, however, did the defence argue that the mother was threat.ened to such an .extent that she should be entitled to a defence of duress. In the third case, the mother was described as the instigator of the sexual abuse and had sought out a male partner with similar inclinations.136 The devastating impact of these cases for the girls involved is obvious, with the complainant losing both her parents and having to deal with the impact of their betrayal without any parental support.137 Girls in State Care Our cases included seven girls alleging sexual abuse by a foster father in a total of six cases.138 Some of these cases involve the abuse of other biological or step.children along with the foster daughter.139 The foster father cases were particularly tragic cases with some girls who had been sexually assaulted in multiple homes by different foster fathers.140 All but one of these cases141 were historical prosecutions, demonstrating how difficult it is for these girls to come forward or to have their sto.ries believed when they do. The complainants in the foster father cases showed remarkable courage in trying to get some adult to listen to what was happening. Some of these girls did try to tell someone about the sexual assaults by a foster father, but nothing was done. In R v HS, for example, the complainant, who was fifteen years old at the time of the sex.ual offences against her, had lived in twenty-two homes, many of which had been abusive, prior to being placed in the home of the accused.142 She testified that she had felt “[the accused’s] home provided the stability that she had been so wanting from her previous homes.”143 However, shortly into her time there, the accused be.gan having unprotected sexual intercourse with her. She became pregnant and was removed from the home and placed in a home for unwed mothers by the Catholic Children’s Aid Society. She testified that she went to the society’s social workers for help and was called a liar.144 These events were not reported to the police at that time. The accused had known the complainant was pregnant when she was removed from his home and clearly knew he had had unprotected sex with her on more than one occasion, but testified that he did not know he was the biological father of her child until thirty-five years later when the complainant notified police and a DNA test was performed. There were other cases where girls testified to having made reports earlier that were not acted on, and, ultimately, the Crown relied on DNA testing on a child to convict a foster father in a historical prosecution.145 In a study of sexual abuse against children and youth in care in British Columbia, the BC Representative for Children and Youth, Mary Ellen Turpel-Lafond, found that there was a lower standard for ministry investigations of sexual violence when children and youth were in care than when they were not.146 Turpel-Lafond also found that Indigenous girls were significantly overrepresented in the population of girls subjected to sexual abuse, while Indigenous boys were not.147 Sadly, our study supports this finding that our most vulnerable girls are having the most difficult time getting their allegations of sexual assault taken seriously. Effects of the Abuse on Victims Consistent with the literature, sexual abuse by a father had a particularly .devastating impact on the girls in our study.148 Girls reported an inability to develop trusting .relationships with other adults149 and profound impacts on every aspect of their lives. The abuse affected their school performance,150 interest in extracurricular activi.ties,151 and their self-image and sense of self-worth.152 Some girls expressed guilt, blaming themselves for what happened to the accused or their families as a result of 
reporting.153 Others engaged in self-harming behaviours such as cutting themselves154 or overeating in an attempt to make themselves unattractive.155 There were nineteen pregnancies arising out of the sexual abuse in our study, across 625 complainants. Nine, or almost half, of these pregnancies were the result of abuse by a father. These girls had to either terminate the pregnancy,156 give birth and place the child for adoption,157 or raise the child themselves,158 with each option leading to distinct and serious harms. Some girls were removed from their family home by child protection .authorities,159 while others had to leave their family home.160 Some were on medications to deal with the impact of the abuse;161 others struggled with drug and/or alcohol .addiction.162 In a few cases, girls attempted suicide.163 Consistently, these girls speak of a lost child.hood and an inability to trust.164 Where prosecutions involve complainants who were still teenagers at the time of sentencing, the full extent of this harm may not yet be evident. We know, for example, that girls who are sexually abused in childhood are at a higher risk of sexual assault as adult women.165 The historical cases also demonstrate the potentially lifelong trauma these complainants .experience.166 The following excerpt from a victim impact statement poignantly articulates the harm to one complainant who, eighteen years old at the time of sentencing, .described her abuse as beginning at the age of six while she was sleeping. While this is just one girl’s story, it is typical of the types of harm described by these girls: For as long back as I remember I have been afraid. As a young child I was always afraid with my dad and I was afraid when I wasn’t with him because I knew I would be forced to be with him again. His abuse of me was so nor.malized for me that I was afraid of other adults. I remember the wait for him to pick us up, the long drive to his house, and assaults that accompanied all interaction during those long visits. There were no hugs or cuddles or child.hood games like hide and seek that were not perverted by him. He robbed me not only of a childhood but of ever knowing what a childhood should be. As a little girl I had to concern myself with strategies to keep safe like stay.ing awake all night and when I just couldn’t manage that anymore, attempt.ing to block his access to me by barricading the bedroom door with whatever furniture I was strong enough to move. As I grew up I came to recognize that his power was so great that others either could not or would not stop him from hurting me; despite my child like pleas for help (acting out) ... no one ever rescued me and he just kept on hurting me. As an adolescent this fear and shame was recognized as anger and rebellion and my instinct to survive and lack of understanding about the consequences of this horrible breach of trust led to me surviving by self-destruction. When other young girls were planning for first love, first dates, first jobs, I was entrapped in self-harm, and substance use. I was not successful in school because I was dealing with not only the abuse itself but also the confusion and fear and shame of being repeatedly hurt by the very person who was supposed to protect and honour me. I had no sense of my right to boundaries and had grown accustomed to being misused, abused, and hurt. I do not know who I might have been or should be; I continue to have flashbacks and nightmares; I struggle with low self-esteem and high self-doubt. My family has been divided by the process of holding my dad accountable for the damage he caused which has added another level of pain and loss for me. Despite my counselling I continue to struggle with these effects daily in nearly every area of my life and I have no idea if and when I will ever fully recover.167 The harm to the complainant can have a ripple effect throughout the entire family. Some victim impact statements from mothers indicated their sense of betrayal and their guilt about not having been able to protect their daughters or the degree to which their relationship with their daughter had subsequently suffered.168 Other sib.lings have their lives disrupted by the shattering of their families as a result of the abuse of their sister.169 The Judicial Response: Barriers to Conviction A majority of the cases in our sample were convictions, and, as will be discussed be.low, many attracted serious sentences. It is also true that acquittals were not rare and, in stepfather cases, amounted to nearly one-third of cases that went to trial. Overall, excluding sentencing cases, stepfathers were somewhat more likely to be acquitted than biological fathers (31 percent of stepfathers versus 23 percent of biological .fathers), but we do not have enough information to evaluate whether and why this gap might be significant. There were also fewer guilty pleas among the stepfather cases (27 percent) than in those involving biological fathers (33 percent). If we look at just those cases in our sample where fathers were acquitted, we can make a number of observations. First, in general, the allegations and the patterns of abuse .reported in these cases were similar to those in the conviction cases. Having said that, some of these acquittals involved less serious allegations, with the acquittal cases being less likely to involve vaginal or anal intercourse than the conviction cases. Second, we saw a range of arguments being deployed to undermine the com.plainant’s credibility. In addition to relying on evidence showing that the .complainant was a “bad girl,” defence counsel argued that the complainants were .being pres.sured by mothers who sought advantage in family law proceedings or other forms of .revenge;170 that they were troubled girls who had already been .damaged or exploited by other men;171 or that they held animosity towards the .accused for .reasons other than sexual abuse.172 In one case, the defence alleged that the .complainant falsely disclosed the sexual assault to her mother because her mother was yelling at her for losing her iPod.173 Third, we observed a blurring of reliability and credibility in some of these cases. Credibility refers to an assessment of the honesty of the witness, whereas reliability goes to the accuracy of her testimony. A judge, for example, may believe that a wit.ness is telling the truth (credibility), but her testimony may be found to be inaccurate nonetheless (reliability). In this group of cases, girls were not often explicitly disbe.lieved or called liars. In fact, in the acquittal cases, judges often made reference at the end of their decisions to the possibility that the allegations could be true but that reasonable doubt required an acquittal.174 Yet it was the small inconsistencies in the complainant’s testimony, usually unrelated to whether the sexual activity actually happened, that led judges to conclude that the evidence was not sufficiently reliable to prove the offence beyond a reasonable doubt. In many cases, we found that, while judges were explicitly relying on concerns about reliability, the underlying concern was that they did not believe the complainant that the sexual abuse happened. It is easier to see the way that myths and stereotypes about girls and women can be deployed when a teenage complainant’s credibility is attacked, in that she is being accused of “crying rape.” Unreliability is a more elusive concept, and the potential for discriminatory reasoning is more difficult to dismantle. Yet reliability assessments are also vulnerable to stereotypical assumptions about how we expect girls to recall and recount private and traumatic events, often years after these events took place. Judges are not immune from the effects of cycles of suppression and may simply be reluctant to believe that otherwise ordinary and respectable men could engage in such acts. While judges focused on inconsistencies in testimony, there was a strong undercurrent, although rarely explicit, that these girls were fabricating their stories.175 Where a girl has alleged sexual abuse by her father, especially over an extended period of time, and the accused denies the abuse took place, this is a dispute about credibility, not reliability. The central question in these cases is whether the com.plainant is believable when she says that her father had sexual contact with her, not whether she can remember what day of the week the abuse started or what home she was living in at the time. A demonstrated lack of reliability may lead to a finding against the complainant in terms of credibility, but, where this is the case, judges need to acknowledge that their decisions are based on credibility, not on a doubt as to whether the complainant is mistaken about having been abused. In R v PDB, for example, the complainant disclosed more than once that her step.father, who had adopted her, repeatedly came into her room at night starting around age twelve, undid her nightdress, and sometimes touched her breasts.176 He testified that he just came in to turn out her nightlight. The daughter, testifying when she was twenty-eight years old, had given inconsistent accounts of whether she opened her eyes during the first incident or only afterwards when the father was leaving the room. There were also inconsistencies about whether her mother, who travelled often, was away during the first incident. These small inconsistencies, which were described in terms of reliability, were really about whether the judge believed the complainant that the sexual abuse had happened. Where girls were asserting sexual abuse over an extended period of time, it was often difficult for them to remember precisely when the abuse began, exactly how old they were, or where they were .living at the time.177 These inconsistencies played a prominent role in the .acquittals.178 In one case, for example, the complainant incorrectly stated at the preliminary hearing that her father was circumcised but later admitted that this testimony had been a guess because she did not know what the word “circumcised” meant.179 Some of the cases in which reasonable doubt favoured the accused did not take much to create that doubt. For example, in R v RSW, the father was charged with physically abusing his daughter and his son and with sexually abusing the .daughter.180 The judge accepted the testimony of the complainants on the assault charges, which the father admitted but had argued unsuccessfully were within the bounds of justifi.able discipline. He was acquitted on the sexual assault counts because he had denied sexual abuse consistently since his police interview. The accounts of sexual abuse by the daughter were detailed and consistent with patterns we saw in other cases. The mere consistency of the father’s denials was enough to raise a reasonable doubt.181 In other cases, the fact that the girl continued to have a relationship with the father and to spend time with him influenced the judge’s assessment of her evidence.182 For example, in R v HP, the complainant had the opportunity to move out of the house in which her allegedly abusive stepfather lived with her mother to go and live with her biological father, but she chose not to.183 The trial judge concluded that this decision did not “make any sense” and “defie[d] reason.”184 Instead, the trial judge believed the complainant’s brother who indicated that, while the two complainants had reported the abuse to him repeatedly, he had not believed them. Sometimes the defence also relied on a lack of opportunity to commit the of.fence on the part of the accused, although such arguments were rarely successful on their own.185 In other cases, the judge disbelieved that the accused would take the risk described by the complainant. For example, in R v GH, the trial judge doubted that the accused would engage in such conduct while the complainant’s mother was awake in the room next door.186 In a very small number of cases where there was only a single allegation of abuse, judges found a reasonable doubt as to whether the actions of the accused had been misinterpreted or whether the touching was accidental.187 While there were a few cases where the evidence may not have been sufficient to rise to proof beyond a reasonable doubt,188 overall, we found many of the acquittal cases troubling. The stories reported by these girls at a very young age were remark.ably consistent with the stories in the conviction cases. These girls often had very little to gain and so much to lose from coming forward. Girls have a heavy burden to meet when fathers consistently deny the abuse and there are no corroborating witnesses; the testimony of a teenager or young adult, sometimes years after the fact, describing events she may not fully have understood or processed as a child, may fare poorly up against a consistent denial from her father who is entitled to the benefit of any doubt. Even where a mother is supportive of her daughter’s allegations, convictions were not inevitable. In R v WGM, for example, the complainant had disclosed the alleged sexual abuse by her stepfather twice to her mother, to a family friend, and years later to her fiancé, all before going to the police.189 The mother eventually corroborated some of her evidence and testified that, on one occasion, the accused had admitted the abuse to her. Nonetheless, while the trial judge did not explic.itly disbelieve the complainant, there were inconsistencies between the mother and the daughter’s testimony, and the daughter had continued her relationship with her stepfather. The possibility of fabrication, while rarely explicit, is never far from the surface in the reasoning.190 Finally, we saw little in these cases to suggest that judges understand the impact of profound and repeated trauma on the ability of these girls to remember and report details surrounding sexual abuse and, in particular, details that may be extraneous to the abuse itself. Research suggests that those who go through a traumatic event may have heightened memory for the most traumatic aspects of the assault, often at the beginning of the assault—what have been referred to as “flashbulb memories”—while memories of contextual details surrounding the circumstances of the assault are often fragmented: When the hippocampus is in this fragmented mode, it encodes (converts) fragments of sensory memory without contextual details. As a result, a sex.ual assault victim might not recall the layout of the room where the rape happened. The hippocampus might not encode time-sequencing information because its functioning is altered during a traumatic event.191 As Lori Haskell and Melanie Randall explain, “few peripheral details, little or no context or time-sequence information, and no words or narrative surrounding the memory may be recalled.”192 One can anticipate the distortions in memory when the trauma is repeated against a young child: which house was the girl living in, was her mother home at the time, what day of the week was it, exactly when did she close her eyes during the assault? The impact on memory of repeated trauma and the passage of time may blur the incidents together, and peripheral details may be lost. Yet it is these gaps in memory that defence counsel focus on to undermine the credibility and reliability of the complainant and to create reasonable doubt in the minds of judges. We are not suggesting that judges should not acquit where they have a reasonable doubt as to the accused’s guilt. Rather, we are suggesting that judges should exercise care before basing a reasonable doubt on “common sense” about the impact of trauma or how a “real” sexual assault complainant would behave or recall information, especially in light of the demonstrated risk of discriminatory reasoning. Sentencing Fathers Who Sexually Assault Their Teenage Daughters The sentencing decisions are particularly revealing because they go into more detail about the harm to the victim as well as the perpetrator’s background and criminal history. As we reported in our earlier article, where fathers were convicted, most of these men received significant sentences, with only a very small number of cases receiving non-custodial sentences, and the majority being sentenced to penitentiary time.193 We recognize that it is difficult to compare sentences in cases across juris.dictions with a wide range and number of charges, sometimes involving multiple victims. Crown charging practices in these cases varied considerably, sometimes .involving multiple counts for one complainant and, on other occasions, a smaller number of counts even though the abuse took place over a number of years. Most judges sentence an accused by count, but, occasionally, a judge will sentence .globally.194 Thus, where we do provide numbers, we do so only to demonstrate com.parisons or to provide examples, and the numbers should be considered with these limitations in mind. All sentences are presented prior to the calculation of credit for pre-trial custody, and, where an accused had a different relationship to different com.plainants, we have used the most serious sentence imposed to calculate averages. There are a number of provisions in the Criminal Code that make clear that these offences are particularly serious. Section 718.01 requires that, when sentencing an individual for a crime committed against a person under the age of eighteen, a judge must give primary consideration to denunciation and deterrence in imposing that sentence over other purposes of sentencing such as rehabilitation.195 Section 718.2(a) has a number of mandatory aggravating factors that will apply to sentencing in these cases such as the fact that the complainant was under eighteen,196 the breach of trust involved,197 and the harm to the victim.198 We note that, during much of the period under study in this article, conditional sentence orders (CSOs) were not available for most of the relevant offences, either because they were explicitly excluded from the CSO provisions in the Criminal Code199 or because the presence of a mandatory minimum sentence precluded them. Given that some mandatory minimums for child sexual offences have now been struck down as unconstitutional,200 and a constitutional challenge to limits on CSOs is working its way through the courts,201 it is possible that we will see a resurgence in community-based sentencing in the future. It should be noted that all of the cases discussed in this study were decided prior to the Supreme Court of Canada’s decision in R v Friesen.202 Friesen did not involve a father but, rather, an offender who sexually assaulted the four-year-old daughter of a woman he had recently met online.203 The Court used the decision as an opportunity to speak more broadly about the serious harms of all forms of sexual abuse against children, specifically noting the heightened risk of sexual violence that adolescent girls face.204 The Court also pointed out the danger that the sentencing process can be distorted by harmful myths and stereotypes about child sexual abuse.205 Sentencing information was available for 298 offenders convicted of sex crimes against adolescent girls in our study. Eighty-eight of these cases (30 percent) .involved fathers, with two sentencing cases (0.7 percent) also including mothers as .co-offenders.206 Where we refer to average sentence length, we included only the eighty-three cases where a determinate period of incarceration was imposed and did not include non-custodial sentences, which were rare, especially for biologi.cal fathers, or indeterminate sentences as a dangerous offender. Within the family, we found that mothers received the harshest sentences (on average seventy-eight months), but because this included only two cases, no conclusions can be drawn from this observation. The average sentence for biological fathers and stepfathers was very close, with biological fathers averaging fifty-seven months (thirty-two cases) and stepfathers fifty-six months (forty-seven cases). By way of comparison, other family members, including brothers, uncles, and grandfathers, received on .average forty months. The only group in our study that received harsher sentences than fathers overall, aside from the two mothers, were strangers to the victim, who received on average seventy-four months.207 The considerations that judges weighed in reaching those .sentences were overwhelmingly similar among different types of father relationships. Given this fact, we will discuss these categories together, ac.knowledging the differences where they exist.208 Sentencing Outcomes A number of aggravating factors are clear from the cases on sentencing fathers. Sexual abuse that continued over an extended period of time,209 that started at a particularly young age,210 that involved multiple victims,211 that included grooming 

Breaking the Silence on Father-Daughter Sexual Abuse of Adolescent Girls: A Case Law Study

Janine Benedet and Isabel Grant

 

De toutes les étapes de leur vie, les femmes sont plus souvent la cible de violences sexuelles à l’adolescence. La plupart du temps, les filles font l’objet de violences sexuelles aux mains d’hommes qu’elles connaissent et en qui elles ont confiance dans leurs propres familles et pourtant, ce type d’agression a largement échappé à l’attention du mouvement #Moiaussi. Dans le présent article, les autrices désirent relancer la discussion sur les agressions sexuelles commises par les pères sur leurs filles adolescentes. L’article fait partie d’une étude plus vaste qui examine toutes les décisions judiciaires canadiennes concernant des infractions d’ordre sexuel contre des filles âgées de 12 à 17 ans sur une période de trois ans. L’examen de ces cas ré- vèle que plus dʼun quart de tous les cas d’agression sexuelle signalés contre des ado- lescentes sont commis par les beaux-pères et les pères biologiques. Les autrices ont trouvé des similarités entre les comportements violents et le contrôle coercitif décrit par les femmes adultes dans leurs relations intimes avec des hommes exerçant un contrôle dépassant la seule sphère sexuelle. Même si la proportion de déclarations de culpabilité est relativement élevée, elle est plus faible pour les pères que pour les autres groupes d’agresseurs. Les autrices concluent que les agressions sexuelles commises par les pères sont les plus faciles à perpétrer, les plus difficiles à mettre au jour et les plus dommageables pour les victimes.

 

Adolescent girls are targeted for sexual violence at a rate higher than females at any other life stage. Girls most often face sexual violence at the hands of men who they know and trust within their own families, yet this type of abuse has largely evaded scrutiny from the #MeToo movement. In this article, the authors seek to revitalize the discussion of sexual abuse against adolescent girls by their fathers. The article is part of a larger study that examined all reported Canadian judicial decisions involving sexual offences against girls between the ages of twelve and seventeen

 

We would like to thank Gabrielle Berron-Styan for her exceptional research assistance at every stage of this article and Elaine Craig for her very helpful comments on an earlier draft. Thanks also to the students involved in the larger project: Madeline MacDonald, Jean Murray, Allison Sharkey, Brett Love, Donna Chapman-Jones, and Joanna Stratton. We would also like to thank the Social Sciences and Humanities Research Council and the Law Foundation of British Columbia for their generous support of this work.

inclusive over a three-year period. An examination of these cases shows that more than one-quarter of all reported decisions involving sexual assault against adoles- cent girls were committed by stepfathers and biological fathers. The authors found patterns of violence similar to those of coercive control described by adult women in intimate relationships, with men exerting controlling behaviours that extended beyond the sexual activity itself. While conviction rates were relatively high, they were lower for fathers than for other groups of perpetrators. The authors conclude that sexual abuse by fathers may be the easiest to perpetrate, the hardest to uncover, and the most damaging to victims.

 

Introduction

Sexual assault is committed against teenage girls more often than any other demo- graphic group, with thirteen and fourteen being the peak ages for victimization.¹ Much of the legal scholarship in this area, especially in the United States, consists of critiques of the criminal law’s application to sexual activity between teenage girls and young men through so-called “statutory rape” laws.² In an earlier article, we outlined our findings from a study of sexual assault against adolescent girls by look- ing at the types of cases that are coming before the Canadian courts.³ We examined over six hundred judicial decisions involving 625 girls between the ages of twelve and seventeen inclusive from all Canadian provinces and territories over a three-year period. We found that prosecutions were not targeting very young men just outside the “close-in-age” exceptions to the age of consent and that, in fact, the average age difference between the complainant and the accused was almost sixteen years if fam- ily relationships were excluded and over nineteen years when they were included.⁴ We argued that the focus on age of consent in the literature on sexual assault against

 

1. See Statistics Canada, Child and Youth Victims of Police-Reported Violent Crime, 2008, by Lucie Ogrodnik, in Canadian Centre for Justice Statistic Profile Series, Catalogue No 85F0033M (Ottawa: Statistics Canada, March 2010) at 12–13 <http://www150. statcan.gc.ca/n1/pub/85f0033m/85f0033m2010023-eng.pdf>.
2. See Julie Desrosiers, “Raising the Age of Sexual Consent: Renewing Legal Moral- ism?” in Elizabeth A Sheehy, ed, Sexual Assault in Canada: Law, Legal Practice and Women’s Activism (Ottawa: University of Ottawa Press, 2012) 569; Joseph J Fischel, “Per Se or Power? Age and Sexual Consent” (2010) 22:2 Yale Journal of Law and Feminism 279; Larry W Myers, “Reasonable Mistake of Age: A Needed Defense to Statutory Rape” (1965) 64:1 Michigan Law Review 105; Lucinda Vandervort, “ʻToo Young to Sell Me Sex!?’ Mens Rea, Mistake of Fact, Reckless Exploitation, and the Underage Sex Worker” (2012) 58:3–4 Criminal Law Quarterly 355.
3. See Isabel Grant & Janine Benedet, “The ʻStatutory Rape’ Myth: A Case Law Study of Sexual Assaults against Adolescent Girls” (2019) 31:2 Canadian Journal of Women and the Law 266 [Grant & Benedet, “ʻStatutory Rape’ Myth”].
4. Ibid at 282.

adolescent girls risks obscuring the kind of sexual abuse by older adult men that makes up the large majority of these cases.

Media accounts, by contrast, tend to focus on cases of adults with institutional authority abusing large numbers of girls (and sometimes boys), such as sports coaches or priests.⁵ This attention is important; the exposure of sexual abuse within Indian residential schools,⁶ religious institutions,⁷ facilities for persons with disabilities,⁸ and sports programs,⁹ to name only a few examples, has been instructive as to how power operates to insulate abusers and to silence victims. It has also provided an opportunity to dismantle or change some of these institutions. Our previous research on the sexual abuse of women with mental disabilities and older women has engaged with some of these questions.¹⁰

Yet our research revealed that, while a small number of cases involved abusers in positions of institutional authority, like teachers or coaches, the largest number

 

1. Michael Salter documents a similar shift in Australia, see “The Privatisation of Incest: The Neglect of Familial Sexual Abuse in Australian Public Inquiries” in Yorick Smaal, Andy Kaladelfos & Mark Finnane, eds, The Sexual Abuse of Children: Recognition and Redress (Melbourne: Monash University, 2016) 108 <http://books.publishing. monash.edu/apps/bookworm/view/The+Sexual+Abuse+of+Children/188/chapter8. html>.
2. See Truth and Reconciliation Commission of Canada, The Survivors Speak: A Report of the Truth and Reconciliation Commission of Canada (Ottawa: Truth and Reconcil- iation Commission of Canada, 2015) <http://www.trc.ca/assets/pdf/Survivors_Speak_ English_Web.pdf>; Rosemary Barnes & Nina Josefowitz, “Indian Residential Schools in Canada: Persistent Impacts on Aboriginal Students’ Psychological Development and Functioning” (2019) 60:2 Canadian Psychological Association 65.
3. See Karen J Terry, “Stained Glass: The Nature and Scope of Child Sexual Abuse in the Catholic Church” (2008) 35:5 Criminal Justice and Behaviour 549; Marie Keenan, Child Sexual Abuse and the Catholic Church: Gender, Power, and Organizational Culture (New York: Oxford University Press, 2012).
4. See Mary Ellen Young et al, “Prevalence of Abuse of Women with Physical Disabil- ities” (1997) 78:12 Archives of Physical Medicine and Rehabilitation 34; Canadian Centre for Justice Statistic, Violent Victimization of Women with Disabilities, 2014, by Adam Cotter, Catalogue No 85-002-X (Ottawa: Statistics Canada, 15 March 2018) <http://www150.statcan.gc.ca/n1/en/pub/85-002-x/2018001/article/54910-eng. pdf?st=wnV2Ia-S>.
5. See Ingunn Bjørnseth & Attila Szabo, “Sexual Violence Against Children in Sports and Exercise: A Systematic Literature Review” (2018) 27:4 Journal of Child Sexual Abuse 365.
6. See Janine Benedet & Isabel Grant, “Hearing the Sexual Assault Complaints of Women with Mental Disabilities: Evidentiary and Procedural Issues” (2007) 52:3 McGill Law Journal 515; Janine Benedet & Isabel Grant, “Hearing the Sexual Assault Complaints of Women with Mental Disabilities: Consent, Capacity, and Mistaken Belief” (2007) 52:2 McGill Law Journal 243; Isabel Grant & Janine Benedet, “The Sexual Assault of Older Women: Criminal Justice Responses in Canada” (2016) 62:1 McGill Law Journal 41.

of cases involved prosecutions against fathers and other male family members.¹¹ Almost half of all prosecutions involved an accused who was a male family member of the complainant and, in more than a quarter of all cases, was the girl’s biological, adoptive, step, or foster father.¹² In this article, we seek to explore father-daughter sexual abuse cases in more detail to see what we can learn about the features of sexual abuse of teenage girls by fathers, the barriers to successful prosecution of this abuse, and the ways in which such cases are treated by the criminal justice system. We use the term “fathers” broadly to refer to biological, adoptive, step, and foster fathers. Where we are making distinctions among these groups, we use the more specific language such as biological fathers, stepfathers, and so on.

The cases themselves demonstrate the similar patterns of offending by fathers, which can involve grooming and escalating sexual behaviour over time. We also saw patterns of abuse similar to those described in the literature about coercive control in the context of male intimate partner violence against adult women.¹³ The cases reveal the extraordinary barriers these girls have to overcome in order to have their reports believed and acted upon. While conviction rates were relatively high, they were lower for fathers than for other groups of perpetrators. There are still signif- icant numbers of acquittals that are difficult to explain, other than by reference to reasonable doubts that are rooted in suspicions about the truthfulness of teenage girls. While significant sentences are imposed in many cases, there is a lack of con- sistency and coherence in sentencing these cases. The sentencing judgments also paint a tragic picture of the devastating harm experienced by these girls. The abuse of trust involved in these sexual assaults, which often continue over months or even years, causes profound harm to its victims that, as demonstrated by the high number of historical cases, can last over a lifetime.

We think it is crucial not to lose sight of the fact that women and girls most often face sexual violence at the hands of men that they know and trust within their own families, an institution that has thus far largely avoided scrutiny in the context of the #MeToo movement.¹⁴ Attention to the barriers to successful prosecution of these cases is necessary, as one part of the essential feminist project of how to dismantle the exercise of patriarchal power within the family. We must not slip back into seeing the family as a private sphere beyond scrutiny and feminist critique. In fact, it is the most powerful social institution implicated in sexual violence against girls, and we hope that this work can contribute to reinvigorating the discussion of this pervasive problem.

 

1. Grant & Benedet, “ʻStatutory Rape’ Myth”, supra note 3.
2. Ibid at 277.
3. See Judith Lewis Herman, “Complex PTSD: A Syndrome in Survivors of Prolonged and Repeated Trauma” (1992) 5:3 Journal of Traumatic Stress 377 at 383–84. See also Evan Stark, “Looking beyond Domestic Violence: Policing Coercive Control” (2012) 12:2 Journal of Police Crisis Negotiations 199.
4. See Lesleigh E Pullman et al, “Differences between Biological and Sociolegal Incest Offenders: A Meta-Analysis” (2017) 34 Aggression and Violent Behaviour 228 at 228.

Father-Daughter Incest as a Site of Feminist Struggle

How society recognizes and understands the sexual abuse of children, and, in partic- ular, the sexual abuse of daughters by fathers, has been contested terrain for many decades. In a 1993 article, Erna Olafson, David Corwin, and Roland Summit refer to this process as “cycles of discovery and suppression.”¹⁵ They argue that we have passed through repeated periods in which child sexual abuse is the subject of concern and alarm, followed by an attempt to minimize or silence the issue. While the liter- ature in this area is extensive, we offer a brief summary of it here because it demon- strates a pattern of resistance to holding men accountable for the sexual abuse of girls. Sigmund Freud, who single-handedly created just such a cycle, might well be con- sidered the originator of this tension. In his 1896 work “The Aetiology of Hysteria,” Freud proposed that symptoms of mental illness in adults could be the result of trauma they had endured through sexual abuse as children.¹⁶ Freud suggested that the frequency of “hysteria” in women was the product of girls more frequently being targeted for sexual abuse.¹⁷ He also suggested that incest was more common than previously suspected and was not limited to poor or otherwise disreputable families.¹⁸ Under criticism from his colleagues, Freud abandoned this theory in favour of the Oedipal complex, in which children, especially daughters, sought sexual contact with their fathers and were troubled by their own unfulfilled fantasies.¹⁹ This denial led to a lack of scholarly interest in child sexual abuse,²⁰ which was also reflected in the public policy of the time. Although some first-wave feminists in England

 

1. Erna Olafson, David L Corwin & Roland C Summit, “Modern History of Child Sexual Abuse Awareness: Cycles of Discovery and Suppression” (1993) 17:1 Child Abuse & Neglect 7 at 7.
2. See Sigmund Freud, “The Aetiology of Hysteria” in The Standard Edition of The Com- plete Psychological Works of Sigmund Freud, vol 3, translated by James Strachey et al (London: Hogarth Press, 1968) 191.
3. Olafson, Corwin & Summit, supra note 15 at 11.
4. Ibid.
5. Ibid. See also Jeffrey Moussaieff Masson, The Assault on Truth: Freud’s Suppression of the Seduction Theory (New York: Penguin Books, 1985); Corry Azzopardi, Ramona Alaggia & Barbara Fallon, “From Freud to Feminism: Gendered Constructions of Blame across Theories of Child Sexual Abuse” (2018) 27:3 Journal of Child Sexual Abuse 254 at 255; Rachel Devlin, “ʻActing Out the Oedipal Wish’: Father-Daughter Incest and the Sexuality of Adolescent Girls in the United States, 1941–1965” (2005) 38:3 Journal of Social History 609 at 616; Francisco Vaz da Silva, “Folklore into The- ory: Freud and Lévi-Straus on Incest and Marriage” (2007) 44:1 Journal of Folklore Research 1 at 1–2.
6. Lynn Sacco notes that between 1938 and 1962, no articles examining the psychopathol- ogy of incestuous fathers can be found in the psychiatric literature, see Unspeakable: Father-Daughter Incest in American History (Baltimore: John Hopkins University Press, 2009) at 215.

and the United States tried to press the issue in the domains of criminal justice and public health, they faced stiff opposition.²¹ Scientists continued to look for explana- tions for the outbreak of gonorrhoea in pre-pubescent girls that were attributable to anything other than the obvious—that they were being abused sexually by infected adult men, usually within their own families.²² When researchers did acknowledge the existence of sexual contact between adults and children, they often blamed the children.²³ In a widely cited 1937 article, Lauretta Bender and Abram Blau argued that, while the “seduction” of children by adults is a recognized phenomenon, it is relatively harmless to the child.²⁴ Moreover, they “frequently … considered the possibility that the child might have been the actual seducer rather than the one in- nocently seduced.”²⁵ Where the sexual contact was between fathers and daughters, mothers were also blamed. Oedipal theories posited that mothers in these families were neglectful or absent in relation to their marital duties, which encouraged men to turn to their willing daughters to fill this void.²⁶

By the 1970s, however, a second wave of feminist activists and scholars chal- lenged the ideas that father-daughter incest was rare, natural, and harmless. These writers argued that prevailing ideas about child sexual abuse were nothing more than a misogynist attempt to maintain patriarchal power within the family and male sexual entitlement more generally.²⁷ While this research was not “intersectional” in the way that this term is used today, its explicit focus on white middle-class families served as a rejoinder to the prevailing assumption that such incestuous behaviour was confined to poor, often racialized, families.²⁸ Feminist analysis of child sexual abuse, and father-daughter incest, in particular, was responding both to the pro- foundly sexist psychological literature described above and to the construction of

 

1. Olafson, Corwin & Summit, supra note 15 at 9.
2. Sacco, supra note 20 at 53–87. See also Carol Smart, “A History of Ambivalence and Conflict in the Discursive Construction of the ʻChild Victim’ of Sexual Abuse” (1999) 8:3 Social & Legal Studies 391 at 395.
3. See Lauretta Bender & Abram Blau, “The Reaction of Children to Sexual Relations with Adults” (1937) 7:4 American Journal of Orthopsychiatry 500 at 513–15.
4. Ibid.
5. Ibid at 514. See also James Henderson, “Is Incest Harmful?” (1983) 28:1 Canadian Journal of Psychiatry 34.
6. Devlin, supra note 19 at 620.
7. See Judith Herman & Lisa Hirschman, “Father-Daughter Incest” (1977) 2:4 Signs: Journal of Women in Culture and Society 735 [Herman & Hirschman, “Father-Daughter Incest”]; Judith Lewis Herman & Lisa Hirschman, Father-Daughter Incest (Cambridge, MA: Harvard University Press, 1981); Sandra Butler, Conspir- acy of Silence: The Trauma of Incest (San Francisco: New Glide, 1978); Diana EH Russell, The Secret Trauma: Incest in the Lives of Girls and Women (New York: Basic Books, 1986).
8. Herman & Hirschman, “Father-Daughter Incest”, supra note 27 at 736.

“stranger danger” as the primary source of documented cases of child rape and murder. Abuse by persons outside the family, especially when it was combined with abduction and homicide, was much harder for law enforcement and the public to ignore and provided a convenient context to further divert attention away from abuse by male family members.²⁹

This feminist analysis of child sexual abuse met with direct backlash from those who alleged feminists were contributing to unjustified panic and wrongful convic- tions. Those who directly rejected the need for increased attention to this issue used gendered language of “hysteria” to blame feminists for creating a “moral panic.”³⁰ Women were accused of making false complaints of abuse to gain unfair advantage in family law disputes,³¹ while children’s accounts of abuse were attributed to “false memory syndrome” or “witch-hunt” investigative techniques.³² The feminist analy- sis of father-daughter incest also met with indirect resistance from the development of the family systems approach to child sexual abuse. This approach does not deny the existence of sexual abuse within the family nor that abusers bear some respon- sibility for this behaviour but, rather, casts the abuse in terms of the dysfunctional or “incestuous family,” all members of which require treatment.³³ The goal is to rehabilitate and reunite the family, not to punish the offender.³⁴

The term “incestuous family” is deeply problematic in that it obscures both gen- der and power. It also carries with it an element of victim blaming that echoes earlier theories of the seductive child as well as of mother blaming that repackages the Oe- dipal theories of the daughter as a replacement wife. This approach remains influen- tial. For example, in a 2017 article, Keith Beard and colleagues criticize the “victim advocacy model,” contrasting it with a humanistic approach that rehabilitates fathers

 

1. See Elise Chenier, “The Natural Order of Disorder: Pedophilia, Stranger Danger and the Normalising Family” (2012) 16:2 Sexuality & Culture 172 at 174.
2. See e.g. Richard A Gardner, Sex Abuse Hysteria: Salem Witch Trials Revisited (Cress- kill, NJ: Creative Therapeutics, 1991); Richard Ofshe & Ethan Watters, Making Mon- sters: False Memories, Psychotherapy, and Sexual Hysteria (Berkeley: University of California Press, 1996).
3. Gardner, supra note 30 at 3–4.
4. Ibid at 127–40. See also Mark Pendergrast, “From Mesmer to Memories: A Historical, Scientific Look at the Recovered Memories Controversy” in Sheila Taub, ed, Recov- ered Memories of Child Sexual Abuse: Psychological, Social, and Legal Perspectives on a Contemporary Mental Health Controversy (Springfield, IL: Charles C Thomas, 1999) 40 at 40–55.
5. See James W Maddock & Noel R Larson, Incestuous Families: An Ecological Ap- proach to Understanding and Treatment (New York: WW Norton 1995) at 173–205.
6. See Henry Giarretto, Integrated Treatment of Child Sexual Abuse: A Treatment and Training Manual (Palo Alto, CA: Science and Behavior Books, 1982); Tamar Cohen, “The Incestuous Family Revisited” (1983) 64:3 Social Casework: The Journal of Con- temporary Social Work 154 at 160–61.

without incarceration, thus “maintaining the marriage in the nuclear family, and re- unification of the family.”³⁵ The authors rest this approach on the conviction that much behaviour that is labelled abusive may be “part of the normal human develop- mental process” (what they call “affection-based incest”) and only harmful when it is labelled as such.³⁶ Mothers are blamed for trapping men in “problematic marriages to women who are unable or unwilling to provide affection” and for tempting men by placing them in the role of caregiver of female children.³⁷ We believe that these profoundly sexist ideas should not continue to determine the appropriate response to what are, in fact, acts of violence.³⁸

We believe that the insights offered by a feminist analysis of father-daughter sex- ual abuse are crucial to understanding why this abuse can so often occur with im- punity and why it has such a profoundly destructive impact on girls. When large numbers of girls are targeted for sexual abuse by men who are supposed to love and care for them, and who are in positions of both trust and authority, this forms a key component of the male violence against women and girls that creates and sustains the intersecting inequalities of sex and age. In other words, the patriarchal family struc- ture facilitates and shields from view fathers who sexually abuse their daughters.³⁹

 

Our Research Questions

In looking at these cases, we wanted to consider a number of related questions and factors to shed light on this hidden form of sexual abuse. In each of these lines of inquiry, we sought to evaluate whether common assumptions about teenage girls and sexuality were borne out by the case law and, if not, whether they amounted to myths and stereotypes with the potential to distort the response of the criminal justice system. We acknowledge that our sample is not necessarily representative of all sexual abuse of adolescent girls by their fathers over this period of time or even of all cases that

 

1. Keith W Beard et al, “Father-Daughter Incest: Effects, Risk-Factors, and a Proposal for a New Parent-Based Approach to Prevention” (2017) 24:1–2 Sexual Addiction & Compulsivity 79 at 79–80, 102.
2. Ibid at 101, 103.
3. Ibid at 103.
4. For earlier analysis of the same data, see Sandra S Stroebel et al, “Father-Daughter Incest: Data from an Anonymous Computerized Survey” (2012) 21:2 Journal of Child Sexual Abuse 176 at 177–78, noting that many incest victims were “not only victims but participants”; that in some cases the behaviour of the mother “could have contrib- uted to the development and duration of [father-daughter incest] (for example, avoid- ing sex, emotional unavailability, and maternal role abdication).”
5. See e.g. Anne Seymour, “Aetiology of the Sexual Abuse of Children: An Extended Feminist Perspective” (1998) 21:4 Women’s Studies International Forum 415 at 419, where Seymour describes male sexual abuse of their daughters as “sexual behaviour in the service of non-sexual needs,” such as, for example, the need to dominate.

lead to charges. These cases may be weighted towards more serious forms of abuse since these are more likely to be reported and prosecuted. We do not have access to jury verdicts that were not appealed nor do we have access to cases where the Crown declined to proceed, and we recognize that particular factors may be concentrated in those cases. We also, of course, do not have cases where girls tried to report to some adult but were dissuaded, disbelieved, or silenced. However, we believe that with the large number of complainants involved in our study, covering every level of court in every Canadian jurisdiction over a three-year period, we have been able to draw some conclusions about the types of abuse being prosecuted in our courts.

First, we wanted to understand what kind of sexual abuse is being perpetrated against girls in these cases, including its duration, the extent of the sexual acts in- volved, and its impact on the victims. We also wanted to shed some light on the coercive techniques fathers used: were these cases in which girls were groomed so as to normalize the abuse; were girls subjected to additional force or threats; were they assaulted when they were asleep or intoxicated?

Second, we also wanted to consider the role that pornography might play in these cases. We know that many young people are routinely exposed to violent and degrading pornography as part of their online media consumption. Many boys report frequent pornography exposure from a young age,⁴⁰ with smaller numbers of girls also having viewed these materials.⁴¹ What boys and men see in pornography influ- ences their sexual expectations; it can become a “preferred sexual script.”⁴² Social science research on the effects of pornography continues to demonstrate a link be- tween pornography consumption and acceptance of rape myths as well as a correla- tion with sexually aggressive or harassing behaviour, especially where the materials present girls and/or women as enjoying or deserving force or violence.⁴³ Perhaps

 

1. See Chyng Sun et al, “Pornography and the Male Sexual Script: An Analysis of Con- sumption and Sexual Relations” (2016) 45:4 Archives of Sexual Behavior 983 at 990 (reporting that nearly half of college-aged men had been exposed to pornography be- fore age 13; 13.2 percent used it daily or almost daily in adulthood). Earlier Alberta re- search showed that approximately 90 percent of thirteen- and fourteen-year-old males had accessed pornographic content at least once, with one-third reporting accessing it “too many times to count.” See Sonya Thompson, Adolescent Access to Sexually Explicit Media Content in Alberta: A Human Ecological Investigation (MS thesis, Uni- versity of Alberta, 2006) [unpublished] at 87, 113.
2. See Magdalena Mattebo et al, “Pornography Consumption among Adolescent Girls in Sweden” (2016) 21:4 European Journal of Contraception & Reproductive Health Care 295 at 298 (54 percent of girls had viewed pornography at least once, and 30 percent were deemed to be regular consumers).
3. Chyng Sun et al, supra note 40 at 990.
4. See Eric W Owens et al, “The Impact of Internet Pornography on Adolescents: A Re- view of the Research” (2012) 19:1–2 Sexual Addiction & Compulsivity 99 at 104, 109–10; Paul J Wright, Robert S Tokunaga & Ashley Kraus, “A Meta-Analysis of Por- nography Consumption and Actual Acts of Sexual Aggression in General Population

most significantly, pornography presents the consent of women and girls as omni- present. Women and girls are never presented as sexually unavailable, even if there is initial refusal or disinterest. Teenage girls are typically portrayed as desiring sex with adult men. We wanted to know whether pornography was present in these cases and, if so, in what ways it impacted the sexual abuse.

Third, we also wanted to examine the role of mothers in these cases. Were girls disclosing the abuse to their mothers or to other third parties? We were interested in whether judicial decisions mentioned the reactions of mothers to such disclosures and, in particular, whether mothers took steps to remove their daughters from the abuser or were instead described as believing their male partners. We believe that the role of mother blaming in these cases deserves scrutiny, especially because the role of mothers in father-daughter incest has featured so prominently in the literature. We also wanted to know how often mothers were actually involved in the offending along with their male partner.

Finally, we wanted to examine how our courts have dealt with these cases both in determining guilt or innocence and in imposing a sentence. Did fathers plead guilty to spare their daughters the trauma of a trial? In cases that went to trial, what arguments did the defence use to attempt to undermine the credibility of the com- plainant’s claim? How did trial judges evaluate these arguments and the complainant’s evidence on the stand and was this approach being informed by an understanding of the impact of prolonged trauma on these girls? We wondered whether constructions of teenage girls as seductive or vindictive might be deployed by counsel or the courts and whether these might influence the verdict or the sentence.

 

Our Case Law Study

In a previous article, we presented the results of our three-year case law review of sexual assault against girls between the ages of twelve and seventeen inclusive.⁴⁴ Of the 625 complainants in the study, 292 girls (47 percent) reported sexual abuse perpetrated by a family member, which included foster and stepfamilies as well as

 

Studies” (2016) 66 Journal of Communication 183 at 192, 199. One study of men attending a forensic psychotherapy clinic for antisocial and sexually deviant behaviour found that regular pornography use was significantly higher in those who identified as perpetrators of sex offenders against children than in the group of non-perpetrators. See Mervin Glasser et al, “Cycle of Child Sexual Abuse: Links between Being a Victim and Becoming a Perpetrator” (2001) 179:6 British Journal of Psychiatry 482 at 487.

1. Grant & Benedet, “ʻStatutory Rape’ Myth”, supra note 3. We note that the defence of mistake of age will rarely apply to a family member and almost never to a father. See Isabel Grant & Janine Benedet, “Confronting the Sexual Assault of Teenage Girls: The Mistake of Age Defence in Canadian Sexual Assault Law” (2019) 97:1 Canadian Bar Review 1.

biological family members. In total, 168 of these girls (27 percent) reported sexual abuse against a father, with four girls (0.6 percent) also reporting abuse by a mother, in combination with a father.⁴⁵ We found that abuse committed by a family member usually targeted younger girls within this group but often continued over many years.⁴⁶ While, on average, abuse started around the age of nine or ten, we saw cases where the abuse began as early as four years of age and continued at least until the girl was within the age group under study.⁴⁷ Roughly 20 percent of the prosecutions in the larger study were historical cases, which we defined as cases involving at least a ten- year gap between the abuse and the charges being laid.⁴⁸ Abuse by family members generally was overrepresented in the historical cases with approximately 70 percent of the historical cases involving intra-family abuse involving a total of ninety-one complainants.⁴⁹ Of these ninety-one complainants, thirty-four (37 percent) alleged sexual abuse by a father. All but one of the cases alleging sexual assault by a foster father were historical cases. These findings are consistent with the assertion that it is particularly difficult for girls to report sexual abuse against a father or to be believed by the authorities when they do.⁵⁰ Girls in state care may face the greatest barriers in having their allegations believed and taken seriously by child welfare authorities.⁵¹ Complainants in these cases sometimes went to extraordinary efforts to reveal the sexual abuse against them after being disbelieved or otherwise silenced for years.⁵²

Conviction rates for each category of fathers were below the overall conviction rates in our study, whereas other family members were convicted at a higher than average rate.⁵³ While, overall, the conviction rate was approximately 71 percent of the cases leading to a verdict, the conviction rates for biological and stepfathers were 65 percent and 61 percent respectively.⁵⁴ In general, we found that, when fathers were convicted, significant sentences were being imposed, with the majority of men

 

1. There were only three mothers charged, but one case involved more than one com- plainant. R v JAVC, 2015 BCPC 218 [JAVC]; R c KH, 2014 QCCA 262 [KH]; R v JV,

2015 ONCJ 815 [JV]. In the larger study, of the 518 accused persons, there were 511 males, six females, and one accused where gender was not indicated.

1. Grant & Benedet, “ʻStatutory Rape’ Myth”, supra note 3 at 276.
2. See e.g. R v RD, 2016 MBCA 88 [RD]; R v HB, 2016 ONSC 6111 [HB]. See also R v

GEW, 2014 BCSC 2597 [GEW], where the complainant reported the abuse beginning around the age of six.

1. Grant & Benedet, “ʻStatutory Rape’ Myth”, supra note 3 at 284.
2. Ibid.
3. In one case involving an adopted daughter with intellectual disabilities who tried repeatedly to report the abuse, her father relied on “the adroit use of the medical system and cynical manipulation of the victim’s vulnerabilities to avoid detection.” R v L(A), 2014 ONCJ 714 at para 9 [L(A)].
4. Grant & Benedet, “The ʻStatutory Rape’ Myth”, supra note 3 at 280.
5. Ibid at 280–81.
6. Ibid at 288 (see Table 8).
7. Ibid.

being sentenced to penitentiary time.⁵⁵ Nonetheless, sexual assaults by strangers were sentenced more severely than those committed by fathers, even though the abuse by fathers was rarely an isolated event and often extended over many years.⁵⁶ In the following section, we highlight what we found for the 168 complainants in these cases who reported sexual abuse by a father.⁵⁷ Fathers made up the single larg- est group of accused persons in our case law survey. Approximately 26 percent of the girls in our entire study reported abuse by a father.⁵⁸ Put another way, 58 percent of the girls reporting abuse by a family member were abused by a father. Of the cases involving accused fathers, 62 percent of girls reported abuse against a stepfather and 32 percent against a biological father. The remaining complainants reported abuse

against a foster or adoptive father.

We recognize that these categories of fathers are not always distinct (for example, a stepfather might adopt his stepdaughter) and that the accused men within each category varied in the nature of their relationship to the complainant. It is important that the dif- ferences between these formal labels not be overstated. In many cases, the stepfather had lived with the complainant since she was very young and was the only father the girl had ever known.⁵⁹ By contrast, there were biological fathers who only made contact with their daughters when the girls were in their teens, and the sexual abuse commenced almost immediately.⁶⁰ Overall, however, most of the men in both groups were in a clear and usually exclusive male parental role with the victim at the time of the abuse.

Our findings are consistent with other research that suggests that stepfathers, in par- ticular, are among the most likely sexual abusers of teenaged girls.⁶¹ Most of the step- fathers in our study occupied a parental role in relation to the complainant in the sense of supervision and authority rather than being viewed merely as the mother’s boyfriend. Why are stepfathers overrepresented relative to biological fathers in these cases? Early research on this topic has posited that the “incest taboo” might inhibit some biological fathers from engaging in the sexual abuse of their daughters,⁶² while more recent research

 

1. Ibid at 289–90.
2. Ibid.
3. Ibid at 278.
4. Ibid at 279 (see Table 4).
5. See R c RG, 2016 QCCQ 16681 [RG]; R v DN, 2014 BCSC 1144; R c AE, 2016 QCCQ

2822 [AE]; R v SH, 2016 ONSC 4492 [SH]; R c YM, 2016 QCCQ 6152; R v KJM, 2016 BCPC 306 [KJM]; R v FL, 2016 ONSC 1215 [FL].

1. See e.g. R v CG, 2015 ONSC 5068 [CG], where the accused brought his teenaged daughter to Canada from Jamaica to live with him and started sexually assaulting her shortly thereafter. The accused made his daughter rub cream over his body, and this progressed until he eventually forced her to have sexual intercourse with him on a weekly basis. See also R v RRI, 2016 NSPC 66 [RRI]; R v WHY, 2014 ONCJ 757, aff’d 2015 ONCA 682 [WHY]; R v Law, 2014 BCSC 1854, aff’g 2007 BCSC 2047 [Law]; R v IWS, 2013 ONSC 4162 [IWS].
2. See Diana EH Russell, “The Prevalence and Seriousness of Incestuous Abuse: Stepfathers vs. Biological Fathers” (1984) 8 Child Abuse & Neglect 15.
3. Ibid at 20; Herman & Hirschman, “Father-Daughter Incest”, supra note 27.

has suggested no difference in incest propensity or disgust towards incestuous behaviour between these groups, instead positing that the higher incidence of pre-existing indica- tors of anti-social behaviour in stepfathers may be a better explanation.⁶³ It is also possi- ble that some of the difference could be explained by differences in reporting. Where a stepfather has been involved in a girl’s life for a shorter period of time, it may be easier to come forward against a stepfather than against a biological father.

The social science research as to whether the kinds of abuse perpetrated by bio- logical fathers differ from stepfathers is also inconclusive and somewhat contradic- tory. There is some research that indicates that biological fathers who commit acts of sexual abuse are more likely than stepfathers to engage in full vaginal intercourse with their daughters, possibly out of a stronger sense of ownership and control.⁶⁴ Our cases did not show any difference in this regard; roughly 42 percent of both biological fathers and stepfathers were alleged to have subjected their daughters to intercourse (vaginal and/or anal) as part of the abuse. Notably, we did not find signif- icant differences in terms of the impact of the abuse on complainants, who reported grave and long-lasting harms from abuse by both biological fathers and stepfathers.

 

 

Patterns of Abuse: Grooming, Force, Incapacitation, and Coercive Control

The cases involving biological fathers demonstrated a number of patterns to the abuse. In some cases, the fathers used prolonged grooming techniques from a young age, creating a sexualized environment in the home beginning at age nine or ten and pro- gressing from sexual conversations to massages to sexual activity as the girl reached adolescence.⁶⁵ These acts were explained as sex education, sometimes with the asserted purpose of protecting the daughter from the attentions of other boys or men.⁶⁶ As one

 

1. See Lesleigh E Pullman, Kelly Babchishin & Michael C Seto, “An Examination of the Westermarck Hypothesis and the Role of Disgust in Incest Avoidance among Fathers” (2019) 17:2 Evolutionary Psychology 1 at 9. Pullman et al, supra note 14 at 235, found that nonrelated family members, such as stepfathers, show more antisocial tendencies than biological family members, whereas biological family members had more mental health difficulties.
2. See Patricia Phelan, “The Process of Incest: Biologic Father and Stepfather Families” (1986) 10:4 Child Abuse & Neglect 531 at 537.
3. See R c LD, 2014 ONSC 2398 [LD]; R c ML, 2014 QCCQ 4412; R v D, 2014 ONSC

3254 [D]; R v LV, 2014 SKQB 278, aff’d in part 2016 SKCA 74 [LV]; R v RSW, 2014

NLTD(G) 134 [RSW]; JV, supra note 45; JAVC, supra note 45; R v RJY, 2016 BCSC 2151 [RJY]; R c MS, 2016 QCCQ 15825 [MS].

1. One father who sexually assaulted his daughter over three years, sometimes with the mother, described it as educational and as simply “family fun.” JAVC, supra note 45 at para 9. In R v JL, 2015 ONCJ 777 at para 53 [JL], the accused explained to his daughter that he was doing this to her to protect her from boys in the neighbourhood. See also D, supra note 65 at paras 21–23.

complainant testified at trial about her biological father grooming her, “[h]e raised me to be molested.”⁶⁷ For example, in R v JL, the accused began to have conversations about sexual activity with his daughter when she was nine years old.⁶⁸ She testified that he would explain what a male would do to a female during sexual activity and that he would want to touch her breasts and genitals and that she would enjoy that and enjoy looking at and touching a man’s penis.⁶⁹ By the time she was twelve, he had progressed to touching and kissing her neck and thigh, ostensibly to simulate what a man might do to indicate his interest in her. This progressed to grinding his erect penis against her and finally to unpro- tected vaginal intercourse by the time she was thirteen years old.⁷⁰ The accused told the complainant that, by doing this with him, it would stop her from doing it with other guys who would get her pregnant.⁷¹ He would give her money from time to time, which she perceived as a bribe to keep quiet.⁷² He told her not to tell her mother because she would not understand and would not forgive her.⁷³ He also used physical violence against other family members, kicking, hitting, and throwing objects when he was angry. When the complainant disclosed the abuse to her mother, they left the home and lived in a shelter with her three siblings. By the time of the trial, the mother supported the father and pres- sured the complainant to recant or minimize the abuse to avoid sending the father to jail.⁷⁴ In other cases, girls came to live with their biological fathers in early adolescence, and the abuse started almost immediately, with fathers using the fact that they had not been involved in their daughters’ lives to act like boyfriends rather than parents.⁷⁵ For example, in R v WHY, the accused had no contact with his daughter until she was thirteen years of age.⁷⁶ She was having some problems, and her mother encouraged her to contact her father through Skype. Eventually, the complainant and her mother, who were residing in the United States, went to visit the accused at his home in Ontario for a week. The complainant was then sent back to her father the following summer, when she was fourteen years old.⁷⁷ Four days after she arrived, her father began to send her text messages saying he wanted to have oral sex and intercourse with her. When she rejected this suggestion, saying that he was her father, he told her to think of him as a boyfriend. He persisted and, for the next two months, subjected her to vaginal and oral sex on a daily basis. He also took nude photos of her.⁷⁸ The

 

1. R v RM, 2015 NSSC 189 at para 20 [RM].
2. JL, supra note 66.
3. Ibid at paras 17–19.
4. Ibid at para 45.
5. Ibid at para 47.
6. Ibid at para 55.
7. Ibid at paras 58–59.
8. Ibid at paras 275–79, 374.
9. RRI, supra note 60; Law, supra note 60; IWS, supra note 60; CG, supra note 60; WHY, supra note 60.
10. WHY, supra note 60.
11. Ibid at para 5.
12. Ibid.

abuse was discovered when the girl’s older half-sister observed the father perform- ing oral sex on the victim while she was intoxicated and asleep.⁷⁹

We did not see a meaningful difference in the kinds of abuse perpetrated by step- fathers as opposed to biological fathers. The age of the daughter and the extent of the parenting role were more important in predicting the techniques used by abusers rather than formal labels. Once again, we saw cases in which the abuse was normal- ized as sex education,⁸⁰ in which additional physical force was used,⁸¹ or in which the complainants were incapacitated,⁸² and some cases combined these features.⁸³ The sexual acts that stepfathers inflicted on their stepdaughters included all manner of sexual activities, including touching, oral sex, and vaginal and anal intercourse.

While grooming behaviours were evident in many of the cases, physical force and emotional manipulation were not mutually exclusive. When girls resisted or objected notwithstanding the grooming, fathers simply forced themselves on their daughters.⁸⁴ There were also a significant number of cases in which fathers sexually assaulted their daughters while the girls were either asleep and/or incapacitated by alcohol or other intoxicants, sometimes supplied by the father.⁸⁵ Out of a total of 168 complainants reporting sexual abuse by a father, forty-one of them (24.4 percent) reported being sexually assaulted when they were asleep or intoxicated. Some girls provided harrowing accounts of trying to stay awake all night or barricading bedroom doors in an attempt to prevent these assaults.⁸⁶

We saw many cases in which fathers assumed an entitlement to control their daughter’s sexuality, although this was expressed in different ways. In some cases, fathers purchased sexual aids or sexualized clothing for their daughters and pres- sured them to use or wear it.⁸⁷ In other cases, fathers used their daughters’ supposed

 

1. Ibid.
2. See R v ETK, 2016 BCPC 346 [ETK]; R v OB, 2016 ONSC 6861 [OB]; R v RAH, 2016 PESC 15 [RAH].
3. KJM, supra note 59 at para 4; R v AL, 2014 NSSC 402 [AL]; R v AC, 2015 ONSC 4472 [AC]; R v AAG, 2015 ONSC 7476 [AAG]; R v DLW, 2014 BCSC 43 [DLW].
4. See R v JLM, 2016 ABPC 285 [JLM]; R v BJ, 2016 ONCJ 822 [BJ]; R v Medeiros,

2014 ONCA 602 [Medeiros]; R v Cutcher, 2016 ABQB 655 [Cutcher]; R v RRGS, 2014 BCPC 170 at para 7 [RRGS].

1. BJ, supra note 82; KJM, supra note 59; AAG, supra note 81.
2. KJM, supra note 59; AC, supra note 81; AAG, supra note 81; RAH, supra note 80; AE, supra note 59; GEW, supra note 47; R v MC, 2016 ONSC 4124 [MC]; R v RMS, 2014 NSSC 139 [RMS].
3. IWS, supra note 60; GEW, supra note 47; LV, supra note 65; JLM, supra note 82; R v DRWH, 2016 BCPC 27 [DRWH]; R v OM, 2014 ONCA 503 [OM]; R v EGY, 2014 SKQB 281 [EGY]; R v JT, 2015 NWTSC 26 [JT]; R v TDF, 2016 BCSC 984 [TDF]; BJ, supra note 82; R v RO, 2015 ONCA 814 [RO].
4. GEW, supra note 47; LV, supra note 65; R v HJB, 2014 NLTD(G) 87 [HJB]; R c RL, 2016 QCCQ 7424 [RL].
5. D, supra note 65; RRI, supra note 60; R v CCP, 2016 BCSC 520 [CCP]; R v DB, [2015] OJ No 1861 [DB].

promiscuity as an excuse to control and restrict them.⁸⁸ These controlling behaviours can be seen in R c MS, where the accused was found guilty of sexually abusing the complainant beginning when she was ten years old.⁸⁹ Her father accused her brother, with whom she was very close, of looking at her inappropriately.⁹⁰ He physically attacked the brother and then refused to let the siblings speak to each other or spend time together, including requiring them to eat meals separately.⁹¹ The sexual abuse of the daughter started at the same time as this forced estrangement from her closest sibling and consisted of repeated acts of both masturbation and intercourse over the next seven years until she left home. During this time, the accused exerted extreme control over what the complainant wore, forbidding dresses or skirts as too reveal- ing, and sweatpants as too easy to remove.⁹² She was not permitted to ride the school bus and was told to hide in her room if a man came to the house.⁹³ He justified some of this behaviour under the guise of religion.⁹⁴

We were struck by how similar the behaviours in these cases were to the patterns of coercive control exhibited by male abusers in cases of domestic violence against their adult female partners. These men were asserting ownership over their daughters in the same way that abusive men assert ownership over their adult female partners, limiting their access to other people and exhibiting behaviours to control their sexuality and other aspects of their lives.⁹⁵ Sometimes men went so far as to describe themselves as their daughters’ “boyfriend,” but usually these coercive patterns were demonstrated in the context of a clearly authoritarian father-daughter relationship. Just as in male intimate partner violence against women, these behaviours serve to heighten the fear, isolation, and helplessness of these girls.⁹⁶

 

1. See R c JM, 2014 QCCQ 14073; JL, supra note 66; JV, supra note 45; MC, supra

note 84; R v EG, 2016 ONSC 4884 [EG].

1. MS, supra note 65 at paras 7–27.
2. Ibid at para 9.
3. Ibid at paras 9–10.
4. Ibid at para 25.
5. Ibid at para 26.
6. Ibid at para 35.
7. See e.g. Evan Stark, Coercive Control: The Entrapment of Women in Personal Life (New York: Oxford University Press, 2007) at 348–55, 408–09, 432–92. See also MC, supra note 84 at paras 5, 11, where the father tried to control his daughter by physi- cally and sexually abusing her. He limited her access to friends and to the Internet and enrolled her in a private Islamic school for girls. In KJM, supra note 59 at para 7, the accused isolated the complainant from outside contact, removed her from school so she could be homeschooled, after which she “rarely left … unless she was accompanied by the offender.” If she did have contact with age-appropriate males, the accused would call her “a slut” (ibid at para 8).
8. Herman, supra note 13, described the similarities among the techniques used by per- petrators and the impact on victims in the contexts of intimate partner violence, child abuse, hostage-taking, and even concentration camps.

The Role of Pornography

While child pornography offences were charged in only a small minority of cases, por- nography was used by fathers in a number of interrelated ways to sexualize the home environment and to normalize their abusive behaviour. First, girls were sometimes encouraged to view pornography as an instruction manual for how to engage in sexual activity or in the hope of encouraging interest in sexual activity.⁹⁷ Second, in some cases, fathers also made pornography of their daughters, asking for nude photographs or making their own recordings.⁹⁸ For example, in R v RRI, the accused had no contact with his daughter until she was the age of twelve or thirteen.⁹⁹ When she began visit- ing him, he showed her pornography while exposing and touching himself. He gave her a vibrating dildo for her birthday and both bribed and pressured her to send explicit photos of herself ostensibly to other men but, in reality, to online accounts that he controlled. He rationalized this behaviour as “virtue testing.”¹⁰⁰ Third, in a few cases, the sexual abuse itself included behaviours commonly seen in pornography, such as shaving pubic hair,¹⁰¹ penetration with objects,¹⁰² and bestiality.¹⁰³

 

 

Victim Blaming

The ways in which adolescent girls can be socially constructed as sexual tempt- resses were visible in the ways that fathers rationalized the abuse. In many of these cases, fathers blamed the daughters for initiating the sexual activity or coming on to them.¹⁰⁴ These were clearly cognitive distortions based on the facts; we did not see any cases in which girls spontaneously initiated sexual activity with their fathers. In fact, in very few of these cases did the girls even acquiesce in the sexual activity

 

1. RJY, supra note 65; D, supra note 65; DB, supra note 87; JV, supra note 45; RL, supra

note 86; OB, supra note 80.

1. LV, supra note 65; WHY, supra note 60; RRI, supra note 60; R v LVR, 2014 BCCA 349;

R c LC, 2015 QCCQ 4510; R v TD, 2015 ONCJ 435 [TD]; MB c R, 2014 QCCA 1643;

R c YM, 2015 QCCQ 2708, aff’d 2016 QCCA 555 [YM].

1. RRI, supra note 60.
2. Ibid at para 14.
3. D, supra note 65 at para 15. See also R v BJT, 2015 ONSC 7293, rev’d in part, 2019 ONCA 694. The Court of Appeal in BJT held, at para 53, that the reasons of the trial judge did not demonstrate that he had addressed his mind to whether shaving the daughter’s pubic hair was done for a sexual purpose.
4. D, supra note 65; DB, supra note 87; AL, supra note 81.
5. JV, supra note 45; DLW, supra note 81.
6. LV, supra note 65; CG, supra note 60; JV, supra note 45; CCP, supra note 87; DLW, supra note 81; R v G(PG), 2014 ONCJ 369 [G(PG)]; R v GRH, 2016 BCPC 365 [GRH].

without objection, and, in most cases, the accused had to use some combination of threats, pressure, coercion, and/or physical force.¹⁰⁵ This included cases in which the accused hit, kicked, or choked his daughter and/or used violence towards other family members.¹⁰⁶ Girls were also pinned down or physically confined in some cases.¹⁰⁷ Some men persisted with these cognitive distortions even during sentencing.¹⁰⁸

Victim blaming and isolating a girl from her family sometimes came together in these cases. For example, in R v CG, the accused got a court order in Jamaica com- pelling his sixteen-year-old daughter to live with him in Ontario.¹⁰⁹ He initially did not enrol her in school and stayed home with her during the day while his wife was at work. He started the abuse by making the complainant put cream on his body. This soon progressed to intercourse during which he would pin down her arms and force her legs apart. The abuse continued for several years, and the complainant became pregnant twice. The children were placed for adoption. Despite DNA evidence of his paternity, the accused maintained that the children were not his and that the com- plainant was “loose” and a “bad girl.”¹¹⁰ After the first child was born, the complainant told her aunt that her father was abusing her, but she recanted when he threatened her that she would be left alone with no one to care for her.¹¹¹ The accused’s warning was prophetic, as family members continued to support the accused and blame the complainant, leaving her without family supports at the time of trial. We saw many cases in which fathers warned girls that they would not be believed and would get in trouble or that reporting these activities would destroy the family.¹¹²

In many cases, defence counsel sought to undermine the complainant’s credi- bility by pointing to her bad behaviour in other contexts, such as skipping school or lying.¹¹³ For example, in R v SH, the accused argued unsuccessfully that the

 

1. In DRWH, supra note 85, the accused used bribes, threats, and physical violence to carry out the sexual abuse against his daughter. He coerced his daughter into having sex with him in exchange for food, cigarettes, marijuana, treats, and the continued provision of shelter. See also RL, supra note 86 at para 7, where the accused threatened to leave his daughter on a riverbank during a canoeing trip if she continued to refuse his sexual advances.
2. DRWH, supra note 85; R v DV, 2016 MBQB 121 [DV]; R v H, 2012 OJ No 3775 (SC), aff’d 2015 ONCA 617 [H]; R c ST, 2015 QCCQ 5553 [ST]; JV, supra note 45; AAG,

supra note 81.

1. CG, supra note 60; MC, supra note 84; DRWH, supra note 85; AAG, supra note 81.
2. CG, supra note 60 at para 23; GRH, supra note 104 at para 41; CCP, supra note 87 at paras 63–64; DLW, supra note 81 at para 10.
3. CG, supra note 60.
4. Ibid at para 12.
5. Ibid at para 13.
6. CCP, supra note 87; RJY, supra note 65; DRWH, supra note 85; AAG, supra note 81;

ETK, supra note 80; YM, supra note 98; R c YS, 2015 QCCQ 5100 [YS].

1. See R v WEM, 2013 ABQB 680, aff’d 2015 ABCA 7 [WEM]; RO, supra note 85; JV, supra note 45; R v MM, 2016 ONSC 5027 [MM]; R c PP, 2016 QCCQ 4305 [PP]; R v LM, 2014 ONCJ 680 at para 145.

complainant fabricated her abuse allegations to deflect attention from a shoplift- ing charge.¹¹⁴ In some cases, this type of evidence was relied on in acquitting the accused.¹¹⁵ In other cases, however, judges recognized that such behaviour is both common in adolescence and may even be a product of the sexual abuse:

That KB had difficulties at school, had been acting out in one way or another, had been involved in drug use, perhaps sexual relationships with other girls, and generally, that she had issues, is of no assistance here. It is not evidence of a propensity to fabricate sexual assault allegations, and is more likely to be evidence that she was subject to considerable stress such as, for example, long term sexual abuse. In the absence of expert evidence, however, I am not prepared to conclude that her acting out in various ways is evidence of anything except that she was a young teenager facing personal challenges.¹¹⁶

 

 

Consent

Before starting this study, we wondered if we might see cases in which the defence would try to rely on the complainant’s apparent consent to her stepfather, given the lack of a biological connection. We knew of cases from the 1990s, when the age of consent was fourteen, where some appellate courts found that consent could exist in such circumstances.¹¹⁷ Since 2008, the Criminal Code has provided that a girl younger than sixteen cannot consent to sex with an adult.¹¹⁸ In most of our cases involving fathers, the abuse began well before the complainant reached the age of consent. There were only a few cases where the defence made such arguments, either with older girls or to mitigate the sentence imposed.¹¹⁹ In R v OR(F), the accused pled

 

1. SH, supra note 59.
2. See R v GH, 2016 NBPC 4 [GH]; EG, supra note 88; MM, supra note 113.
3. R v DPH, 2016 ABPC 262 at para 41. See also R v WR, 2016 ONSC 1243 [WR] at para 91, where the complainant admitted on the stand to having lied to her mother in the past, having tried cigarettes and been around marihuana, having watched pornography, and having been involved in mischief to do with fire. The trial judge rejected that these acts were relevant to credibility or reliability with these memorable words: “Although [the admissions] may prove that S.S. is not quite Laura on Little House on the Prairie, they hardly rise anywhere close to making her unworthy of belief or an unsavoury witness” (ibid).
4. See e.g. R v MLM, 1992 NSCA 30, rev’d [1994] 2 SCR 3. See also R v RHJ (1993), 37

BCAC 272.

1. Criminal Code, RSC 1985, c C-46, s 150.1(1).
2. See e.g. R v RTK, 2014 ABCA 349 [RTK], where defence counsel argued in the sen- tencing appeal that the jury, which convicted the complainant’s stepfather of sexual exploitation but acquitted him of sexual assault, may have found that the complainant agreed to sexual contact. The appellate court held that it was unhelpful to speculate on

guilty to sexual exploitation of a young person in relation to the seventeen-year-old complainant.¹²⁰ He had been in a relationship with her mother from the time the complainant was eight years old until she was twelve. During this time, the accused and the complainant’s mother had two children, who were half-siblings to the com- plainant. The accused kept in touch with the family and ultimately engaged in an intimate relationship with the complainant for a few months beginning just prior to her eighteenth birthday.¹²¹ The accused was sentenced to ninety days intermittent incarceration plus probation, one of the most lenient sentences we saw in our study.

 

 

The Role of Mothers

The reaction of mothers who received reports of abuse was varied. We recognize that the extent to which judges comment on the complainant’s mother in their reasons may itself be a product of deeply embedded beliefs about “good” and “bad” mothers. As Corry Azzopardi, Ramona Alaggia, and Barbara Fallon note, “[n]onoffending mothers of children who have been sexually abused have implicitly and explicitly borne the burden of blame for the transgressions of predominantly male offenders in the professional and public discourse, both historical and contemporary.”¹²² Mothers are blamed for precipitating the abuse through their absence from their expected roles and blamed for prolonging the abuse by taking the side of the abuser in an attempt to preserve their relationship. As these authors recognize, the factors that influence child sexual abuse, and mothers’ roles in responding to that abuse, are complex and constructed in a context of gendered power:

While the nature of blame may have shifted over the years from claims of collusion and complicity to judgments of failure to protect, non-offending mothers continue to be held accountable, ideologically and legally, for the violent actions of men and social obligations of the state. These unreason- able expectations fail to take into account cultural variations in mothering and the challenging circumstances of women’s everyday lives, often charac- terized by limited social and material resources, intimate partner violence,

 

why the jury acquitted. The court stated: “Consent is no defence to a charge of sexual exploitation, nor is it a reason to conclude the four-year starting point in sentencing should not apply upon conviction.” The language of consent is troubling here given that the complainant was 15 years old when the abuse began. The Court of Appeal upheld the three-year sentence imposed by the trial judge (ibid at para 17).

1. R v OR(F), 2016 BCPC 223 [OR(F)].
2. The facts of this case were not typical in that the sexual contact first occurred when the victim was seventeen and several years after the stepfather and mother’s relationship had ended. In almost all of the other cases, the abuse started when the complainant was much younger and while the relationship between the parents was ongoing.
3. Azzopardi, Alaggia & Fallon, supra note 19 at 254.

conflicted loyalties, and the debilitating effects of trauma, not to mention highly effective perpetrator tactics to conceal crimes and silence victims.¹²³

While there were certainly a number of cases where the mother of the complainant sided with her husband or male partner and asserted that the complainant’s allegations were fabricated or overstated,¹²⁴ we also saw cases in which mothers immediately called police and separated themselves and their children from the abuser.¹²⁵ In some cases, the mother confronted the father but then did not go to the police and instead took (sometimes futile) steps to protect her daughter, like putting a lock on the girl’s bedroom.¹²⁶ There were still other cases where the complainant’s mother was not pres- ent in her life due to addiction or illness, death, physical distance, or other barriers¹²⁷ or where the complainant had a particularly difficult relationship with her mother.¹²⁸ These girls disclosed the abuse to friends, teachers, and other trusted adults. Overall, many girls went to extraordinary efforts to report the abuse against them.¹²⁹

 

1. Ibid at 261.
2. See e.g. R v JD, 2015 ONCJ 683 at para 61, where even at sentencing the mother was “effusive” in praise of her husband and believed that her daughter concocted the story for revenge. In R v IPW, 2016 ONSC 5919 at para 5, the complainant’s mother and her step-grandmother all sided with the accused stepfather at sentencing, portraying the complainant as a “scheming teenager intent of [sic] being able to leave the home.” See also R c GL, 2015 QCCQ 4445 at para 33 [GL QCCQ]; EG, supra note 88 at para 4; R v Akbari, 2014 ONSC 5198 at paras 4–5 [Akbari]; RTK, supra note 119 at para 5; YS, supra note 112 at para 23; R v WGM, 2015 MBQB 55 at para 10 [WGM]; G(PG), supra note 104 para 7; R c RE, 2015 QCCQ 1181. In R v NP, 2014 ONSC 6793 at para 54 [NP], the mother confronted the accused, her boyfriend, after her daughter revealed the abuse, but did not go to the police because she was afraid that the Children’s Aid Society would take her daughter away. The mother continued to date the accused for several months and encouraged her daughter to spend time with the accused “so no one would think anything was wrong.”
3. See e.g. R v LV, 2016 SKCA 74 at paras 13, 20 [LV SKCA], where after questioning her daughter and reading the diaries of her husband, the mother went to the police to report the sexual assaults. The mother testified that the accused behaved more like a jealous boyfriend than like a father to the complainant. See also JL, supra note 66 at para 56; R v DD, 2014 ONSC 5577 at para 23; R v JJ, 2014 ONCA 759; WEM, supra note 113.
4. RMS, supra note 84 at para 6; LV SKCA, supra note 125 at para 95.
5. BJ, supra note 82 at para 4; CG, supra note 60; IWS, supra note 60; Medeiros, supra

note 82; RTK, supra note 119; AAG, supra note 81 at para 89.

1. See R v RRDG, 2014 NSSC 223 at para 52 [RRDG]; TD, supra note 98 at para 61; DV, supra note 106 at para 10.
2. See e.g. RMS, supra note 84 at paras 5–6, where the complainant went to her mother and her sister on more than one occasion, but the stepfather’s denials resulted in them taking no steps as he described the abuse as massage therapy. The complainant ulti- mately escaped during a particularly violent assault, which included choking, and went to the police.

While in some cases the abuse occurred when mothers were absent from the home due to work,¹³⁰ divorce, or other reasons, in only a small minority of cases were the girls taking on the main housekeeping or caregiving responsibilities. In a significant number of cases, the abuse started when the girl was very young and continued into adolescence, which is inconsistent with the “surrogate wife” construction of abuse favoured by some earlier researchers.¹³¹ Some of the cases involved families who were poor or isolated, but there were also many cases of families whose situation appeared to be more affluent. The cases portrayed not only many dysfunctional and chaotic households¹³² but also many that appeared to be quite ordinary, in which the adults did not suffer from any addictions, there was adequate and stable housing, as well as employment providing sufficient income for family vacations and extracur- ricular activities.¹³³

We note that there were also three cases in our sample, involving four girls, in which biological mothers were convicted of sexual offences against their teenage daughters.¹³⁴ These cases were among the most serious in our sample in that they involved prolonged and repeated sexual and physical abuse and neglect. In all of these cases, the abuse was carried out along with a male spouse. In two of the cases, there was evidence that the father was physically violent to the mother and that he was clearly the main perpetrator of the sexual abuse, although the mothers also participated in sexual activity on at least one occasion and, at other times, facilitated the fathers’ sexual access or tried to intimidate the girls into keeping si- lent.¹³⁵ In neither case, however, did the defence argue that the mother was threat- ened to such an extent that she should be entitled to a defence of duress. In the third case, the mother was described as the instigator of the sexual abuse and had sought out a male partner with similar inclinations.¹³⁶ The devastating impact of these cases for the girls involved is obvious, with the complainant losing both her

 

1. See R v PEM, 2014 ONSC 2565 [PEM]; R v PDB, 2014 NBQB 213 [PDB]; R v GL,

2015 ONSC 385 [GL ONSC]; HJB, supra note 86; WR, supra note 116.

1. See e.g. Cohen, supra note 34 at 156–57; Linda Gordon, “Incest and Resistance: Pat- terns of Father-Daughter Incest, 1880–1930” (1986) 33:4 Social Problems 253 at 255.
2. AAG, supra note 81; AC, supra note 81; JV, supra note 45; R v CPP, 2016 BCSC 520 [CPP].
3. See R v WJ, 2015 ONSC 266 [WJ]; AL, supra note 81; WEM, supra note 113; G(PG), supra note 104; PP, supra note 113; R v DI, 2014 NSSC 323 [DI].
4. JAVC, supra note 45 (mother and father together); KH, supra note 45 (mother charged alone); JV, supra note 45 (mother and father together; two girl complainants). There were no cases in which accused mothers were acquitted.
5. JV, supra note 45; JAVC, supra note 45.
6. KH, supra note 45. In this case, the mother seems to have been an enthusiastic partici- pant in extreme acts of sexual abuse against her son and two daughters, including mak- ing pornography of these acts, and apparently sought out a male partner who would also be interested in these activities. This case attracted one of the highest sentences in our sample (the appeal from a sentence of nine years was dismissed).

parents and having to deal with the impact of their betrayal without any parental support.¹³⁷

 

 

Girls in State Care

Our cases included seven girls alleging sexual abuse by a foster father in a total of six cases.¹³⁸ Some of these cases involve the abuse of other biological or step- children along with the foster daughter.¹³⁹ The foster father cases were particularly tragic cases with some girls who had been sexually assaulted in multiple homes by different foster fathers.¹⁴⁰ All but one of these cases¹⁴¹ were historical prosecutions, demonstrating how difficult it is for these girls to come forward or to have their sto- ries believed when they do.

The complainants in the foster father cases showed remarkable courage in trying to get some adult to listen to what was happening. Some of these girls did try to tell someone about the sexual assaults by a foster father, but nothing was done. In R v HS, for example, the complainant, who was fifteen years old at the time of the sex- ual offences against her, had lived in twenty-two homes, many of which had been abusive, prior to being placed in the home of the accused.¹⁴² She testified that she had felt “[the accused’s] home provided the stability that she had been so wanting from her previous homes.”¹⁴³ However, shortly into her time there, the accused be- gan having unprotected sexual intercourse with her. She became pregnant and was removed from the home and placed in a home for unwed mothers by the Catholic Children’s Aid Society. She testified that she went to the society’s social workers for help and was called a liar.¹⁴⁴ These events were not reported to the police at that time. The accused had known the complainant was pregnant when she was removed from his home and clearly knew he had had unprotected sex with her on more than one occasion, but testified that he did not know he was the biological father of her child until thirty-five years later when the complainant notified police and a DNA test

 

1. Ibid.
2. See R v HS, 2013 ONSC 1825 [HS], leave to appeal to ONCA allowed, 2014 ONCA 323; R v AFJ, 2014 YKTC 60 [AFJ]; R v CAS, 2015 BCPC 241 [CAS]; R v Dedam,

2016 NBQB 223 [Dedam]; R v HP, 2015 ONSC 2104 [HP]; R v CJC, 2016 ONSC

1768.

1. There were two cases in which a foster father also sexually abused his biological daughter or stepdaughter: CAS, supra note 138; HP, supra note 138.
2. HS, supra note 138; AFJ, supra note 138; CAS, supra note 138; Dedam, supra note 138; HP, supra note 138.
3. HP, supra note 138.
4. HS, supra note 138 at para 4.
5. Ibid at para 6.
6. Ibid at para 35.

was performed. There were other cases where girls testified to having made reports earlier that were not acted on, and, ultimately, the Crown relied on DNA testing on a child to convict a foster father in a historical prosecution.¹⁴⁵

In a study of sexual abuse against children and youth in care in British Columbia, the BC Representative for Children and Youth, Mary Ellen Turpel-Lafond, found that there was a lower standard for ministry investigations of sexual violence when children and youth were in care than when they were not.¹⁴⁶ Turpel-Lafond also found that Indigenous girls were significantly overrepresented in the population of girls subjected to sexual abuse, while Indigenous boys were not.¹⁴⁷ Sadly, our study supports this finding that our most vulnerable girls are having the most difficult time getting their allegations of sexual assault taken seriously.

 

Effects of the Abuse on Victims

Consistent with the literature, sexual abuse by a father had a particularly devastating impact on the girls in our study.¹⁴⁸ Girls reported an inability to develop trusting relationships with other adults¹⁴⁹ and profound impacts on every aspect of their lives. The abuse affected their school performance,¹⁵⁰ interest in extracurricular activi- ties,¹⁵¹ and their self-image and sense of self-worth.¹⁵² Some girls expressed guilt, blaming themselves for what happened to the accused or their families as a result of

 

1. See e.g. AFJ, supra note 138, where the accused sexually abused his foster daughter while she was in his care from 1975 to 1976, and she became pregnant but gave birth after she had moved back in with her biological mother. She allegedly reported the as- sault in 1990, but the police found no record supporting this. She contacted the police again in 2012, which led to the DNA test establishing the accused as her daughter’s father and then leading to the charges against him.
2. Mary Ellen Turpel-Lafond, Too Many Victims: Sexualized Violence in the Lives of Children and Youth in Care: An Aggregate Review (Victoria: Representative for Chil- dren and Youth, 2016) at 36.
3. Ibid at 12.
4. See e.g. Lori Haskell, First Stage Trauma Treatment: A Guide for Mental Health Pro- fessionals Working with Women (Toronto: Centre for Addiction and Mental Health, 2003). See also Pullman et al, supra note 14 at 228.
5. MC, supra note 84 at para 14; CG, supra note 60 at para 30; JT, supra note 85 at para 13; Law, supra note 60 at para 94; RMS, supra note 84 at para 34.
6. RMS, supra note 84 at para 34; TD, supra note 98 at para 17; YM, supra note 98 at pa- ras 20, 23; R v DP, 2014 ONSC 386 at para 17 [DP]; R v B, 2016 ONSC 3146 at paras 27–28 [R v B].
7. Akbari, supra note 124 at para 18.
8. DB, supra note 87; Law, supra note 60 at para 94; DP, supra note 150 at para 17; DLW, supra note 81 at paras 15-17; HJB, supra note 86 at para 30; RRGS, supra note 82; R v JM, 2016 ONSC 5139 at para 32 [JM].

reporting.¹⁵³ Others engaged in self-harming behaviours such as cutting themselves¹⁵⁴ or overeating in an attempt to make themselves unattractive.¹⁵⁵ There were nineteen pregnancies arising out of the sexual abuse in our study, across 625 complainants. Nine, or almost half, of these pregnancies were the result of abuse by a father. These girls had to either terminate the pregnancy,¹⁵⁶ give birth and place the child for adoption,¹⁵⁷ or raise the child themselves,¹⁵⁸ with each option leading to distinct and serious harms. Some girls were removed from their family home by child protection authorities,¹⁵⁹ while others had to leave their family home.¹⁶⁰ Some were on medications to deal with the impact of the abuse;¹⁶¹ others struggled with drug and/or alcohol addiction.¹⁶² In a few cases, girls attempted suicide.¹⁶³ Consistently, these girls speak of a lost child- hood and an inability to trust.¹⁶⁴ Where prosecutions involve complainants who were still teenagers at the time of sentencing, the full extent of this harm may not yet be evident. We know, for example, that girls who are sexually abused in childhood are at a higher risk of sexual assault as adult women.¹⁶⁵ The historical cases also

 

1. See R v SN, 2015 NUCJ 25 at paras 7, 19; R v SAH, 2017 ONSC 51 at para 14 [SAH].
2. DRWH, supra note 85; CCP, supra note 87 at para 20; HJB, supra note 86 at para 30; R v GKN, 2014 NSSC 150 [GKN]; DLW, supra note 81; SAH, supra note 153 at para 14; YM, supra note 98 at para 22.
3. DB, supra note 87 at para 9, where the complainant testified that she thought her father abused her because she was too attractive, so she began to overeat to make herself less attractive. Others reported an eating disorder in response to the sexual abuse. DLW, supra note 81 at para 16.
4. L(A), supra note 50; Cutcher, supra note 82; LD, supra note 65; R v TO, 2015 MBQB 143 [TO].
5. CG, supra note 60; R v L, 2014 ONSC 38 [L].
6. AFJ, supra note 138; HS, supra note 138.
7. See R v RJB, 2016 BCCA 428 at para 19 [RJB]; JAVC, supra note 45 at para 11; CCP, supra note 87 at paras 19–20; L, supra note 157 at para 6; GKN, supra note 154 at para 18.
8. PP, supra note 113; RMS, supra note 84; GH, supra note 115; SAH, supra note 153; R v PK, 2016 NLTD(G) 33.
9. DB, supra note 87 at para 11; GKN, supra note 154; DLW, supra note 81, YM, supra

note 98 at para 19.

1. GL QCCQ, supra note 124 at para 15: GKN, supra note 154; DP, supra note 150 at para 17; DLW, supra note 81 at para 17; JT, supra note 85 at paras 11–12; GEW, supra note 47 at para 17.
2. JV, supra note 45; JT, supra note 85 at para 11; MS, supra note 65 at para 31; SAH, supra note 153 at para 14; R c PC, 2014 QCCQ 2270; GL QCCQ, supra note 124 at para 15; HJB, supra note 86 at para 30; G(PG), supra note 104 at para 16.
3. DB, supra note 87; GEW, supra note 47; HJB, supra note 86 at para 30; L, supra

note 157 at para 22; TD, supra note 98 at para 18.

1. See Lori Haskell, Revictimization in Women’s Lives: An Empirical and Theoretical Account of the Links between Child Sexual Abuse and Repeated Sexual Violence (PhD dissertation, University of Toronto, 1999).

demonstrate the potentially lifelong trauma these complainants experience.¹⁶⁶ The following excerpt from a victim impact statement poignantly articulates the harm to one complainant who, eighteen years old at the time of sentencing, described her abuse as beginning at the age of six while she was sleeping. While this is just one girl’s story, it is typical of the types of harm described by these girls:

For as long back as I remember I have been afraid. As a young child I was always afraid with my dad and I was afraid when I wasn’t with him because I knew I would be forced to be with him again. His abuse of me was so nor- malized for me that I was afraid of other adults. I remember the wait for him to pick us up, the long drive to his house, and assaults that accompanied all interaction during those long visits. There were no hugs or cuddles or child- hood games like hide and seek that were not perverted by him. He robbed me not only of a childhood but of ever knowing what a childhood should be. As a little girl I had to concern myself with strategies to keep safe like stay- ing awake all night and when I just couldn’t manage that anymore, attempt- ing to block his access to me by barricading the bedroom door with whatever furniture I was strong enough to move. As I grew up I came to recognize that his power was so great that others either could not or would not stop him from hurting me; despite my child like pleas for help (acting out) ... no one ever rescued me and he just kept on hurting me. As an adolescent this fear and shame was recognized as anger and rebellion and my instinct to survive and lack of understanding about the consequences of this horrible breach of trust led to me surviving by self-destruction. When other young girls were planning for first love, first dates, first jobs, I was entrapped in self-harm, and substance use. I was not successful in school because I was dealing with not only the abuse itself but also the confusion and fear and shame of being repeatedly hurt by the very person who was supposed to protect and honour me. I had no sense of my right to boundaries and had grown accustomed to being misused, abused, and hurt. I do not know who I might have been or should be; I continue to have flashbacks and nightmares; I struggle with low self-esteem and high self-doubt. My family has been divided by the process of holding my dad accountable for the damage he caused which has added another level of pain and loss for me. Despite my counselling I continue to struggle with these effects daily in nearly every area of my life and I have no idea if and when I will ever fully recover.¹⁶⁷

The harm to the complainant can have a ripple effect throughout the entire family. Some victim impact statements from mothers indicated their sense of betrayal and their guilt about not having been able to protect their daughters or the degree to

 

1. DB, supra note 87; GEW, supra note 47.
2. GEW, supra note 47 at para 17.

which their relationship with their daughter had subsequently suffered.¹⁶⁸ Other sib- lings have their lives disrupted by the shattering of their families as a result of the abuse of their sister.¹⁶⁹

 

The Judicial Response: Barriers to Conviction

A majority of the cases in our sample were convictions, and, as will be discussed be- low, many attracted serious sentences. It is also true that acquittals were not rare and, in stepfather cases, amounted to nearly one-third of cases that went to trial. Overall, excluding sentencing cases, stepfathers were somewhat more likely to be acquitted than biological fathers (31 percent of stepfathers versus 23 percent of biological fathers), but we do not have enough information to evaluate whether and why this gap might be significant. There were also fewer guilty pleas among the stepfather cases (27 percent) than in those involving biological fathers (33 percent). If we look at just those cases in our sample where fathers were acquitted, we can make a number of observations. First, in general, the allegations and the patterns of abuse reported in these cases were similar to those in the conviction cases. Having said that, some of these acquittals involved less serious allegations, with the acquittal cases being less likely to involve vaginal or anal intercourse than the conviction cases.

Second, we saw a range of arguments being deployed to undermine the com- plainant’s credibility. In addition to relying on evidence showing that the complainant was a “bad girl,” defence counsel argued that the complainants were being pres- sured by mothers who sought advantage in family law proceedings or other forms of revenge;¹⁷⁰ that they were troubled girls who had already been damaged or exploited by other men;¹⁷¹ or that they held animosity towards the accused for reasons other than sexual abuse.¹⁷² In one case, the defence alleged that the complainant falsely disclosed the sexual assault to her mother because her mother was yelling at her for losing her iPod.¹⁷³

Third, we observed a blurring of reliability and credibility in some of these cases. Credibility refers to an assessment of the honesty of the witness, whereas reliability

 

1. DB, supra note 87; DLW, supra note 81; DP, supra note 150 at para 17; RMS, supra note 84 at para 34; R v B, supra note 150 at para 29; AC, supra note 81 at para 53; RJY, supra note 65 at para 56; R v MSJ, 2015 NWTSC 43 at paras 27–28 [MSJ].
2. CCP, supra note 87 at para 20; DLW, supra note 81 at para 14; R v SN, 2015 NUCJ 25 at paras 5–6. In SAH, supra note 153 at para 14, the complainant describes in her victim im- pact statement how her little brothers blame her that they cannot grow up with their father.
3. MM, supra note 113; R v T, 2015 ONSC 1386 at paras 105–11 [R v T].
4. RG, supra note 59.
5. NP, supra note 124; WJ, supra note 133; R v S(MW), 2015 MBQB 192 [S(MW)]; GH,

supra note 115; R v JN, 2015 NUCJ 29 at para 20 [JN].

1. MM, supra note 113 at para 17.

goes to the accuracy of her testimony. A judge, for example, may believe that a wit- ness is telling the truth (credibility), but her testimony may be found to be inaccurate nonetheless (reliability). In this group of cases, girls were not often explicitly disbe- lieved or called liars. In fact, in the acquittal cases, judges often made reference at the end of their decisions to the possibility that the allegations could be true but that reasonable doubt required an acquittal.¹⁷⁴ Yet it was the small inconsistencies in the complainant’s testimony, usually unrelated to whether the sexual activity actually happened, that led judges to conclude that the evidence was not sufficiently reliable to prove the offence beyond a reasonable doubt. In many cases, we found that, while judges were explicitly relying on concerns about reliability, the underlying concern was that they did not believe the complainant that the sexual abuse happened.

It is easier to see the way that myths and stereotypes about girls and women can be deployed when a teenage complainant’s credibility is attacked, in that she is being accused of “crying rape.” Unreliability is a more elusive concept, and the potential for discriminatory reasoning is more difficult to dismantle. Yet reliability assessments are also vulnerable to stereotypical assumptions about how we expect girls to recall and recount private and traumatic events, often years after these events took place. Judges are not immune from the effects of cycles of suppression and may simply be reluctant to believe that otherwise ordinary and respectable men could engage in such acts. While judges focused on inconsistencies in testimony, there was a strong undercurrent, although rarely explicit, that these girls were fabricating their stories.¹⁷⁵ Where a girl has alleged sexual abuse by her father, especially over an extended period of time, and the accused denies the abuse took place, this is a dispute about credibility, not reliability. The central question in these cases is whether the com- plainant is believable when she says that her father had sexual contact with her, not whether she can remember what day of the week the abuse started or what home she was living in at the time. A demonstrated lack of reliability may lead to a finding against the complainant in terms of credibility, but, where this is the case, judges

 

1. See e.g. MM, supra note 113; R v T, supra note 170 at para 165; WGM, supra note 124;

R v PDW, 2015 BCSC 660.

1. For such an exceptional case, see GH, supra note 115. This blurring of credibility and reliability in the sexual assault context is evident in a decision from the Court of Appeal for Ontario in R v Slatter, 2019 ONCA 807, appeal as of right to the SCC, [2019] SCCA No 368, a sexual assault case, not involving a father, dealing with a young woman with an intellectual disability. The accused had denied the sex took place and did not argue consent. The trial judge in this case believed the complainant beyond a reasonable doubt and convicted the accused. A majority of the Court of Appeal over- turned the conviction on the basis that the trial judge did not adequately address the reliability of the complainant given her higher than average level of “suggestibility.” The only way in which this was truly a finding about reliability, and not credibility, was if the complainant actually believed she had had non-consensual sex multiple times with the accused over a number of years but was mistaken in that belief, an interpreta- tion that had no foundation in the evidentiary record.

need to acknowledge that their decisions are based on credibility, not on a doubt as to whether the complainant is mistaken about having been abused.

In R v PDB, for example, the complainant disclosed more than once that her step- father, who had adopted her, repeatedly came into her room at night starting around age twelve, undid her nightdress, and sometimes touched her breasts.¹⁷⁶ He testified that he just came in to turn out her nightlight. The daughter, testifying when she was twenty-eight years old, had given inconsistent accounts of whether she opened her eyes during the first incident or only afterwards when the father was leaving the room. There were also inconsistencies about whether her mother, who travelled often, was away during the first incident. These small inconsistencies, which were described in terms of reliability, were really about whether the judge believed the complainant that the sexual abuse had happened. Where girls were asserting sexual abuse over an extended period of time, it was often difficult for them to remember precisely when the abuse began, exactly how old they were, or where they were living at the time.¹⁷⁷ These inconsistencies played a prominent role in the acquittals.¹⁷⁸ In one case, for example, the complainant incorrectly stated at the preliminary hearing that her father was circumcised but later admitted that this testimony had been a guess because she did not know what the word “circumcised” meant.¹⁷⁹

Some of the cases in which reasonable doubt favoured the accused did not take much to create that doubt. For example, in R v RSW, the father was charged with physically abusing his daughter and his son and with sexually abusing the daughter.¹⁸⁰ The judge accepted the testimony of the complainants on the assault charges, which the father admitted but had argued unsuccessfully were within the bounds of justifi- able discipline. He was acquitted on the sexual assault counts because he had denied sexual abuse consistently since his police interview. The accounts of sexual abuse by the daughter were detailed and consistent with patterns we saw in other cases. The mere consistency of the father’s denials was enough to raise a reasonable doubt.¹⁸¹ In other cases, the fact that the girl continued to have a relationship with the father and to spend time with him influenced the judge’s assessment of her evidence.¹⁸²

 

1. PDB, supra note 130.
2. WJ, supra note 133; R v T, supra note 171.
3. HP, supra note 138.
4. S(MW), supra note 173 at para 49.
5. RSW, supra note 65.
6. Ibid at para 61.
7. GL ONSC, supra note 130 at para 69; HP, supra note 138 at para 70. See also NP, supra note 124 at para 80, where the court reasoned that the fact that the mother main- tained a relationship with the accused after her daughter disclosed the abuse meant that she probably disbelieved her daughter: “Ms. I.’s behavior in continuing her relation- ship with Mr. P. and permitting him to stay with her in the home she shared with V. is more consistent with a mother who did not in fact believe what V. told her or that no complaint was even made by V. of an assault” [emphasis in original].

For example, in R v HP, the complainant had the opportunity to move out of the house in which her allegedly abusive stepfather lived with her mother to go and live with her biological father, but she chose not to.¹⁸³ The trial judge concluded that this decision did not “make any sense” and “defie[d] reason.”¹⁸⁴ Instead, the trial judge believed the complainant’s brother who indicated that, while the two complainants had reported the abuse to him repeatedly, he had not believed them.

Sometimes the defence also relied on a lack of opportunity to commit the of- fence on the part of the accused, although such arguments were rarely successful on their own.¹⁸⁵ In other cases, the judge disbelieved that the accused would take the risk described by the complainant. For example, in R v GH, the trial judge doubted that the accused would engage in such conduct while the complainant’s mother was awake in the room next door.¹⁸⁶ In a very small number of cases where there was only a single allegation of abuse, judges found a reasonable doubt as to whether the actions of the accused had been misinterpreted or whether the touching was accidental.¹⁸⁷

While there were a few cases where the evidence may not have been sufficient to rise to proof beyond a reasonable doubt,¹⁸⁸ overall, we found many of the acquittal cases troubling. The stories reported by these girls at a very young age were remark- ably consistent with the stories in the conviction cases. These girls often had very little to gain and so much to lose from coming forward. Girls have a heavy burden to meet when fathers consistently deny the abuse and there are no corroborating witnesses; the testimony of a teenager or young adult, sometimes years after the fact, describing events she may not fully have understood or processed as a child, may fare poorly up against a consistent denial from her father who is entitled to the benefit of any doubt.

Even where a mother is supportive of her daughter’s allegations, convictions were not inevitable. In R v WGM, for example, the complainant had disclosed the alleged sexual abuse by her stepfather twice to her mother, to a family friend, and years later to her fiancé, all before going to the police.¹⁸⁹ The mother eventually corroborated some of her evidence and testified that, on one occasion, the accused had admitted the abuse to her. Nonetheless, while the trial judge did not explic- itly disbelieve the complainant, there were inconsistencies between the mother and the daughter’s testimony, and the daughter had continued her relationship with her

 

1. HP, supra note 138 at para 70.
2. Ibid at para 71.
3. DI, supra note 133; R v T, supra note 171; AL, supra note 81.
4. GH, supra note 115 at para 106.
5. See e.g. R v JP, 2015 ABPC 186 at para 3, where the father alleged that the one incident of sexual touching resulted from him mistaking his daughter for his wife in his bed. See also JN, supra note 172 at para 22.
6. GH, supra note 115.
7. WGM, supra note 124.

stepfather. The possibility of fabrication, while rarely explicit, is never far from the surface in the reasoning.¹⁹⁰

Finally, we saw little in these cases to suggest that judges understand the impact of profound and repeated trauma on the ability of these girls to remember and report details surrounding sexual abuse and, in particular, details that may be extraneous to the abuse itself. Research suggests that those who go through a traumatic event may have heightened memory for the most traumatic aspects of the assault, often at the beginning of the assault—what have been referred to as “flashbulb memories”— while memories of contextual details surrounding the circumstances of the assault are often fragmented:

When the hippocampus is in this fragmented mode, it encodes (converts) fragments of sensory memory without contextual details. As a result, a sex- ual assault victim might not recall the layout of the room where the rape happened. The hippocampus might not encode time-sequencing information because its functioning is altered during a traumatic event.¹⁹¹

As Lori Haskell and Melanie Randall explain, “few peripheral details, little or no context or time-sequence information, and no words or narrative surrounding the memory may be recalled.”¹⁹² One can anticipate the distortions in memory when the trauma is repeated against a young child: which house was the girl living in, was her mother home at the time, what day of the week was it, exactly when did she close her eyes during the assault? The impact on memory of repeated trauma and the passage of time may blur the incidents together, and peripheral details may be lost. Yet it is these gaps in memory that defence counsel focus on to undermine the credibility and reliability of the complainant and to create reasonable doubt in the minds of judges. We are not suggesting that judges should not acquit where they have a reasonable doubt as to the accused’s guilt. Rather, we are suggesting that judges should exercise care before basing a reasonable doubt on “common sense” about the impact of trauma or how a “real” sexual assault complainant would behave or recall information, especially in light of the demonstrated risk of discriminatory reasoning.

 

1. Ibid at paras 58–60. See also NP, supra note 124, where the complainant disclosed the sexual assault to her mother, who believed her daughter, but did not go to the police be- cause she was afraid that the Children’s Aid Society would take her daughter away. The mother’s evidence corroborated some of her daughter’s testimony, but the court relied on some inconsistencies to acquit the accused. The court described the mother’s actions following her daughter’s disclosure as “nonsensical and incredible” (ibid at para 79).
2. Department of Justice Canada, The Impact of Trauma on Adult Sexual Assault Victims, by Lori Haskell and Melanie Randall (Ottawa: Department of Justice Canada, 2019) at 20–21 <http://publications.gc.ca/collections/collection_2019/jus/J4-92-2019-eng. pdf>.
3. Ibid.

Sentencing Fathers Who Sexually Assault Their

Teenage Daughters

The sentencing decisions are particularly revealing because they go into more detail about the harm to the victim as well as the perpetrator’s background and criminal history. As we reported in our earlier article, where fathers were convicted, most of these men received significant sentences, with only a very small number of cases receiving non-custodial sentences, and the majority being sentenced to penitentiary time.¹⁹³ We recognize that it is difficult to compare sentences in cases across juris- dictions with a wide range and number of charges, sometimes involving multiple victims. Crown charging practices in these cases varied considerably, sometimes involving multiple counts for one complainant and, on other occasions, a smaller number of counts even though the abuse took place over a number of years. Most judges sentence an accused by count, but, occasionally, a judge will sentence globally.¹⁹⁴ Thus, where we do provide numbers, we do so only to demonstrate com- parisons or to provide examples, and the numbers should be considered with these limitations in mind. All sentences are presented prior to the calculation of credit for pre-trial custody, and, where an accused had a different relationship to different com- plainants, we have used the most serious sentence imposed to calculate averages.

There are a number of provisions in the Criminal Code that make clear that these offences are particularly serious. Section 718.01 requires that, when sentencing an individual for a crime committed against a person under the age of eighteen, a judge must give primary consideration to denunciation and deterrence in imposing that sentence over other purposes of sentencing such as rehabilitation.¹⁹⁵ Section 718.2(a) has a number of mandatory aggravating factors that will apply to sentencing in these cases such as the fact that the complainant was under eighteen,¹⁹⁶ the breach of trust involved,¹⁹⁷ and the harm to the victim.¹⁹⁸

We note that, during much of the period under study in this article, conditional sentence orders (CSOs) were not available for most of the relevant offences, either because they were explicitly excluded from the CSO provisions in the Criminal Code¹⁹⁹ or because the presence of a mandatory minimum sentence precluded them.

 

1. Grant & Benedet, “ʻStatutory Rape’ Myth”, supra note 3 at 289–90.
2. See R v JW, 2014 ONSC 4604 [JW].
3. Criminal Code, supra note 118, s 718.01.
4. Ibid, s 718.2(a)(ii.1).
5. Ibid, s 718.2(a)(iii).
6. Ibid, s 718.2(a)(iii.1).
7. See Criminal Code, supra note 118 at s 742.1(f)(iii) explicitly excluding condi- tional sentence orders (CSOs) for sexual assault. This provision was enacted in 2012 although sexual assault was also excluded under the regime between 2007 and 2012. Until recently, offences that took place prior to 2007 could result in a CSO even if the offence took place before CSOs were introduced in 1996. The Supreme Court of Canada has now held that section 11(i) of the Charter, which guarantees an offender

Given that some mandatory minimums for child sexual offences have now been struck down as unconstitutional,²⁰⁰ and a constitutional challenge to limits on CSOs is working its way through the courts,²⁰¹ it is possible that we will see a resurgence in community-based sentencing in the future.

It should be noted that all of the cases discussed in this study were decided prior to the Supreme Court of Canada’s decision in R v Friesen.²⁰² Friesen did not involve a father but, rather, an offender who sexually assaulted the four-year-old daughter of a woman he had recently met online.²⁰³ The Court used the decision as an opportunity to speak more broadly about the serious harms of all forms of sexual abuse against children, specifically noting the heightened risk of sexual violence that adolescent girls face.²⁰⁴ The Court also pointed out the danger that the sentencing process can be distorted by harmful myths and stereotypes about child sexual abuse.²⁰⁵

Sentencing information was available for 298 offenders convicted of sex crimes against adolescent girls in our study. Eighty-eight of these cases (30 percent) involved fathers, with two sentencing cases (0.7 percent) also including mothers as co-offenders.²⁰⁶ Where we refer to average sentence length, we included only the

 

the benefit of the lesser punishment where that punishment changes between the com- mission of the offence and sentencing, is a binary right that compares the available sentence at the date of the offence with that at the date of sentencing and not the entire period in between. See R v Poulin, 2019 SCC 47.

1. For example, the one-year mandatory minimum sentence for sexual interference when the Crown proceeds by indictment in section 151(a) of the Criminal Code has been struck down by appellate courts in British Columbia (see R v Scofield, 2019 BCCA 3), Alberta (see R v Ford, 2019 ABCA 87), Manitoba (R v JED, 2018 MBCA 123), Nova Scotia (R v Hood, 2018 NSCA 18), and Quebec (see Barrette c R, 2018 QCCA 516). Appellate courts have disagreed on the one-year mandatory minimum for sexual exploitation in section 153(1.1)(a) of the Criminal Code. The Nova Scotia Court of Appeal found it un- constitutional in Hood, but the Alberta Court of Appeal upheld the mandatory minimum in R v EJB, 2018 ABCA 239, leave to appeal to SCC refused, [2018] SCCA No 441. Although unlikely to apply to a father, the Ontario Court of Appeal has recently upheld the mandatory minimum for child luring in R v Cowell, 2019 ONCA 972.
2. See R v Sharma, 2020 ONCA 478, where the Ontario Court of Appeal invalidated ss 742.1(c) and 742.1(e)(ii) of the Criminal Code as violating ss 7 and 15(1) of the Charter. The former provision precluded CSOs for those convicted of aggravated sex- ual assault because the crime has a maximum life sentence. However, s 742.1(f)(iii), precluding CSOs for sexual assault where prosecuted on indictment, is still in force. Thus, we are left with the strange outcome in Ontario that a CSO will be available for some aggravated sexual assaults (those without a mandatory minimum) but not for the less serious crime of sexual assault.
3. 2020 SCC 9 [Friesen].
4. Ibid at paras 6–12.
5. Ibid at para 136.
6. Ibid at paras 130, 144, 151.
7. See Grant & Benedet, “ʻStatutory Rape’ Myth”, supra note 3 at 290 (Table 10). This table does not include the two indeterminate sentences or the three CSOs imposed on fathers.

eighty-three cases where a determinate period of incarceration was imposed and did not include non-custodial sentences, which were rare, especially for biologi- cal fathers, or indeterminate sentences as a dangerous offender. Within the family, we found that mothers received the harshest sentences (on average seventy-eight months), but because this included only two cases, no conclusions can be drawn from this observation. The average sentence for biological fathers and stepfathers was very close, with biological fathers averaging fifty-seven months (thirty-two cases) and stepfathers fifty-six months (forty-seven cases). By way of comparison, other family members, including brothers, uncles, and grandfathers, received on average forty months. The only group in our study that received harsher sentences than fathers overall, aside from the two mothers, were strangers to the victim, who received on average seventy-four months.²⁰⁷ The considerations that judges weighed in reaching those sentences were overwhelmingly similar among different types of father relationships. Given this fact, we will discuss these categories together, ac- knowledging the differences where they exist.²⁰⁸

 

 

Sentencing Outcomes

A number of aggravating factors are clear from the cases on sentencing fathers. Sexual abuse that continued over an extended period of time,²⁰⁹ that started at a particularly young age,²¹⁰ that involved multiple victims,²¹¹ that included grooming

 

1. Ibid. Part of this difference could be attributable to the fact that stepfathers cannot be charged with incest, a crime with a five-year mandatory minimum sentence. Six of the fa- thers in our sentencing cases were convicted of incest. GEW, supra note 47; CCP, supra note 87; WHY, supra note 60; CG, supra note 60; RM, supra note 67; MC, supra note 84.
2. We also had sentencing information for two adoptive fathers that we included in this category.
3. CAS, supra note 138; FL, supra note 59; MSJ, supra note 168; DLW, supra note 81; BJ, supra note 82; YM, supra note 98; R v AEB, 2016 BCPC 100 [AEB]; R v WV, 2016 ONSC 7661 [WV]; R c LF, 2014 QCCQ 9890 [LF].
4. RJY, supra note 65; CAS, supra note 138; FL, supra note 59; WV, supra note 209; BJ,

supra note 82; LF, supra note 209; TO, supra note 156; RL, supra note 86.

1. JT, supra note 85; R v JRAC, 2014 BCSC 2163; HJB, supra note 86; CAS, supra note 138; R v B, supra note 150 at para 34; LF, supra note 209. Courts were not entirely consistent about whether multiple victims demanded consecutive sentences and this was further muddied by the fact that some judges sentenced offenders globally, impos- ing one sentence for all of the counts (see e.g. CAS, supra note 138), whereas other judges gave shorter sentences but made them consecutive for each victim (see e.g. HJB, supra note 86). There were also inconsistencies when dealing with one victim with multiple counts. Some judges imposed concurrent sentences of a longer length (see e.g. DP, supra note 150), whereas other judges imposed consecutive sentences of shorter length (see e.g. GKN, supra note 154; RMS, supra note 84).

activities,²¹² that included intercourse,²¹³ that was accompanied by additional vi- olence or threats of violence to ensure compliance,²¹⁴ or that included the use of pornography to facilitate the abuse²¹⁵ were all considered particularly serious. Continuing to deny responsibility or shifting it onto the complainant at sentencing was also considered an aggravating factor.²¹⁶ Certain mitigating factors also take on

 

1. See e.g. RRI, supra note 60 at para 34, where the trial judge rightly recognized that the atmosphere that had “enveloped” the complainant since she was twelve or thir- teen could not be separated from the two sexual assaults themselves (“[t]he accused groomed C.L. in an attempt to desensitize her to the sexual transactions. Had she not objected to being touched sexually by her father in the course of two so-called ʻmas- sages’, he may well have thereafter attempted to push this boundary still further. As it was, after the massages, he pushed it in an equally troubling (albeit different) direction, by having her send explicit pictures of herself online to both himself and to someone whom he represented to be a bisexual friend”). See also Medeiros, supra note 82; RRDG, supra note 128 at para 53; RJY, supra note 65 at para 32; AC, supra note 81 at para 82; R v DaCosta, 2016 ONSC 7483 at para 49.
2. WV, supra note 209 at para 14; TO, supra note 156 at para 30; Dedam, supra note 138 at para 44. The degree to which intercourse is an aggravating factor can be seen in RJB, supra note 159, where the British Columbia Court of Appeal reduced a six-year sen- tence to approximately four and a half years because the sentencing judge had wrongly relied on the fact that the abuse involved intercourse contrary to the jury acquittal on the incest charge. The Supreme Court in Friesen, supra note 202 at para 144, cautioned against treating an absence of intercourse as mitigating.
3. See e.g. R v SM, 2014 BCPC 363 [SM]. See also RMS, supra note 84 at para 56, where the complainant had severe bruising to her neck area from prolonged choking by her stepfather.
4. In the exceptional case where separate pornography charges were laid against the ac- cused, this additional harm is typically reflected in the sentence for those offences and not counted again for the sexual assault offence. See e.g. DLW, supra note 81. In R v LVR, 2016 BCCA 86, the Court of Appeal upheld the appropriateness of consecutive sentences for pornography related charges.
5. Courts handle this issue carefully because an accused person has a right to go to trial, and an absence of remorse is not an aggravating factor. See generally R v Dreger, 2014 BCCA 54; R v Nash, 2009 NBCA 7. However, a lack of insight into the harm caused to a complainant can be an aggravating factor. See e.g. GRH, supra note 104 at para

92. We also saw cases where an absence of accepting responsibility post-conviction aggravated sentence without explicitly being called an aggravating factor. In MSJ, su- pra note 168 at para 29, the court was careful to note that the absence of remorse is not an aggravating factor but that what it meant in this case was that there were no mitigating factors for this particular offender. Another way a lack of responsibility was manifest was in the tendency to blame daughters for the sexual abuse against them. See e.g. CCP, supra note 87. One father blamed his years of offending on his exces- sive marijuana use even though he was fully employed at the time and his offending showed a significant degree of planning. See HJB, supra note 86. All of these ways of shifting responsibility away from the offender may also be relevant to risk—that is,

particular significance in this context. Pleading guilty, for example, is often consid- ered a mitigating factor in sentencing but takes on particular importance when doing so spares the complainant from testifying against her father about his sexual violence against her.²¹⁷ However, a guilty plea that is not timely—for example, entered after the complainant has been required to testify at a preliminary inquiry or at trial—may lose its mitigating value.²¹⁸ In some cases, the fact that the accused had the support of his family was considered to be a mitigating factor in sentencing, even though this frequently meant that the complainant had lost her family support as a result.²¹⁹ While, in general, we saw significant sentences involving penitentiary time, the Court of Appeal for Ontario has suggested that, in sentencing those who abuse young people, five to six years should be the minimum sentence where there is one victim, where the abuse included intercourse, and where there is a serious breach of trust.²²⁰ Higher sentences are required where there is more than one child being abused.²²¹ R v D(D) was the leading case cited in many of the sentencing decisions involving fathers, even though it involved a man who groomed and sexually assaulted four boys over a considerable period of time and who was sentenced to eight years of incarceration.²²² Justice Michael Moldaver, then on the Court of Appeal, set out some guidelines regarding sentencing of sexual offences against young people involving a

profound breach of trust, a passage that is cited in many of these cases:

To summarize, I am of the view that as a general rule, when adult offenders, in a position of trust, sexually abuse innocent young children on a regu- lar and persistent basis over substantial periods of time, they can expect

 

someone with no insight into his crimes may be seen as more likely to commit further crimes in the future. See e.g. SM, supra note 214. In RMS, supra note 84 at para 33, the sentencing judge described the offending stepfather as “quick to blame everyone but himself for what he does.” See also Linda A Wood & Clare MacMartin, “Constructing Remorse: Judges’ Sentencing Decisions in Child Sexual Assault Cases” (2007) 26:4 Journal of Language and Social Psychology 343.

1. HS, supra note 138 at para 46; HJB, supra note 86 at paras 42, 51; SM, supra note 214. Although we note that even where an accused has pleaded guilty, there may be some necessity for the complainant to testify at a sentencing hearing where the Crown is attempting to prove aggravating factors beyond a reasonable doubt in what is referred to as a Gardiner hearing. R v Gardiner, [1982] 2 SCR 368. See e.g. GRH, supra note 104 at para 12.
2. See e.g. TDF, supra note 85 at para 43; BJ, supra note 82 at para 48; CPP, supra note 132 at para 77.
3. See R v ADT, 2015 ABPC 28 at para 30 [ADT]; JLM, supra note 82 at para 32; Dedam, supra note 138 at para 49; RTK, supra note 119 at para 3; OR(F), supra note 120 at para 33; JM, supra note 152 at paras 33, 49.
4. See R v DM, 2012 ONCA 520 at para 44.
5. See R v D(D) (2002), 58 OR (3d) 788 (CA) [D(D)].
6. Ibid.

to receive mid to upper single digit penitentiary terms. When the abuse in- volves full intercourse, anal or vaginal, and it is accompanied by other acts of physical violence, threats of physical violence, or other forms of extor- tion, upper single digit to low double digit penitentiary terms will generally be appropriate. Finally, in cases where these elements are accompanied by a pattern of severe psychological, emotional and physical brutalization, still higher penalties will be warranted.²²³

The Court in Friesen explicitly approved of the significant sentences suggested in

D(D) and added that the courts must send a clear message about child sexual assault:

That message is that mid-single digit penitentiary terms for sexual offences against children are normal and that upper-single digit and double-digit penitentiary terms should be neither unusual nor reserved for rare or exceptional circumstances. We would add that substantial sentences can be imposed where there was only a single instance of sexual violence and/or a single victim.²²⁴

For biological fathers in our study, sentences ranged from one CSO²²⁵ to a period of indeterminate detention as a dangerous offender.²²⁶ Five years was the most com- mon sentence imposed, although a few biological fathers received sentences of seven years.²²⁷ The most severe sentence imposed on a biological father, aside from one case involving an indeterminate sentence, was ten years for a man who abused both his daughter and his stepdaughter.²²⁸ Another father received a sentence of nine

 

1. Ibid at para 44. In R v Woodward, 2011 ONCA 610 at paras 37–39, the court clarified that D(D) also applied to cases involving one victim, one incident, and no additional violence. Numerous trial judges rely on D(D), even outside Ontario. See e.g. DLW, supra note 81.
2. Friesen, supra note 202 at para 114.
3. D, supra note 65. One adoptive father also received a conditional sentence order even though his daughter had what were described as developmental disabilities. ADT, supra note 219. While the trial judge explicitly relied on section 718.2(e) of the Criminal Code for the general principle of restraint, there is nothing in the judgment to indicate that the father was Indigenous nor was there any mention of a Gladue report or any Gladue-related background factors. One foster father also received a conditional sentence order: HS, supra note 138 (this was a historical prosecution).
4. H, supra note 106.
5. JT, supra note 85, involving the abuse of a daughter and stepdaughters; GEW, supra note 47, involving the abuse of two daughters. In both of these cases, the fathers were Indigenous. See also CCP, supra note 87, involving the abuse of one daughter. In our one sentencing case involving an adoptive father, L(A), supra note 50, the offender was also sentenced to seven years for years of abuse against his adopted daughter who had an intellectual disability.
6. RD, supra note 47.

years in a very serious case involving sexual abuse, including intercourse, against his daughter, which began at the age of four and escalated over the years.²²⁹

There was a wider range of sentences for stepfathers, with more sentences on the lower end and a few on the very high end.²³⁰ While there were no cases involv- ing biological fathers that proceeded by summary conviction, there were at least three such prosecutions against stepfathers.²³¹ This may be in part because there were more cases with stepfathers involving isolated instances of abuse than there were with biological fathers and because the limitation period for summary con- viction offences means that the victim would have to complain very soon after the assault. On the other end, one stepfather received a cumulative sentence of sixteen years for very serious sexual abuse against two stepdaughters, including for convic- tions related to bestiality and child pornography.²³² The Crown brought dangerous offender proceedings against two stepfathers, both of whom had significant criminal records involving violence.²³³

The involvement of multiple complainants was generally, but not always, con- sidered more serious. In R v JM, for example, the accused sexually assaulted his daughter, his daughter’s friend while she was living under his care, and a girl who frequented an arcade that he operated.²³⁴ The daughter was abused from the age of

 

1. RJY, supra note 65.
2. See e.g. RRGS, supra note 82, where an Indigenous stepfather was sentenced to ninety days intermittent. In OR(F), supra note 120, the accused was also sentenced to ninety days intermittent plus probation. In R v AR, 2015 ONSC 5055, a step- father was sentenced to five months plus probation. In AEB, supra note 209, the offender was sentenced to six months incarceration plus probation. In JLM, supra note 82, the stepfather was sentenced to six months of incarceration plus probation for approximately 15 sexual assaults against his stepdaughter. The mitigating factors in this case were that he turned himself in to police even though his wife and step- daughter had decided not to report the matter, made a full confession, pleaded guilty, and sought therapy. Nonetheless, the trial judge concluded that a community-based sentence would be inconsistent with the principles of sentencing that require denun- ciation and deterrence to be the predominant factors in the sexual abuse of children (at paras 85–86). In R v JWC, 2015 BCPC 88, the offender was sentenced to one year of incarceration plus probation for the sexual assault of his stepdaughter even though the offence involved digital penetration. Aside from one case with a condi- tional sentence order—D, supra note 65—there were no cases of biological fathers with sentences in this range.
3. AEB, supra note 209; JLM, supra note 82; OR(F), supra note 120.
4. See DLW, supra note 81, where the sentence included consecutive sentences on charges related to pornography and bestiality. See also JW, supra note 194, where the offender was sentenced to twelve years.
5. An indeterminate sentence was imposed in PEM, supra note 130 and, in R v Munro, 2014 ONCJ 226 [Munro], the offender was sentenced to six years with a long-term supervision order.
6. JM, supra note 152.

nine until her late teens. The girls testified to the devastating impact of the abuse.²³⁵ A five-year sentence was imposed for the abuse of all three girls. Yet five years was also sometimes imposed for the abuse of one daughter.²³⁶ There is no question that, where multiple complainants were involved, concerns about totality resulted in lower sentences overall than if the cases had been tried separately.

 

 

The Role of Risk Assessments

There was a tendency in these cases to label fathers as being at lower risk of reoffending than those who sexually assault girls outside of the family, particularly strangers.²³⁷ The absence of violence in these cases was sometimes highlighted with- out recognizing that additional violence is often unnecessary to overcome the will of a terrified adolescent at the hands of the very man she should be able to trust.²³⁸ While occasionally a lack of insight and remorse was relied upon to characterize the accused as being at higher risk,²³⁹ several men who lacked insight were still charac- terized as low risk.²⁴⁰

There is some literature to support the suggestion that men who sexually assault girls outside of the family have a higher recidivism rate than men who exclusively sexually assault their daughters or stepdaughters.²⁴¹ Thus, it is perhaps not surpris- ing that judges often refer to risk assessments that put fathers at a relatively low risk of reoffending.²⁴² However, our cases demonstrate that these are not two distinct categories where men either sexually assault daughters or non-family members. While some of the men in our study only sexually assaulted their daughters, some sexually assaulted daughters, adopted daughters, and foster daughters²⁴³ or their daughters and other girls.²⁴⁴ Others had a history of sexual assault against a range

 

1. Ibid at paras 31–35.
2. WHY, supra note 60; HB, supra note 47; MC, supra note 84.
3. DB, supra note 87.
4. GKN, supra note 154.
5. DLW, supra note 81; AC, supra note 81 at para 81, where even though the offender was at low risk of reoffending, the judge held that his lack of insight or remorse meant that no weight should be given to rehabilitation.
6. R v D, supra note 65.
7. See e.g. Marnie E Rice & Grant T Harris, “Men Who Molest Their Sexually Immature Daughters: Is a Special Explanation Required?” (2002) 111:2 Journal of Abnormal Psychology 329 at 330.
8. See e.g. R v IWS, 2014 ONSC 791 at para 20; R v D(DA), 2015 ONSC 4204 at para 18

[D(DA)]; R v JL (2015), 124 WCB (2d) 639 (Ont Ct J) at para 13; RM, supra note 67 at para 7; GEW, supra note 47 at para 54.

1. CAS, supra note 138. See also JT, supra note 85, where the accused abused his daugh- ter and two stepdaughters.
2. WHY, supra note 60; JM, supra note 152; PEM, supra note 130; JW, supra note 194.

of women and girls²⁴⁵ and/or a history of domestic violence.²⁴⁶ The idea that men target exclusively either their own family members or non-family members is not supported by our cases.

Defence counsel often asserted the low risk of reoffending as relevant to sen- tencing. In the only case involving a biological father where a CSO was imposed, the court relied heavily on the fact that the accused had a low risk of reoffending.²⁴⁷ The judge acknowledged a number of important aggravating factors: the abuse of trust, the vulnerability of the fourteen-year-old complainant, the accused’s “unpre- dictable rages,”²⁴⁸ his attempts to isolate the complainant from other adults, his relentlessness in pursuing her sexually for at least a year, and his complete lack of insight into the harm he had caused his daughter. One might think that these aggravating factors would warrant a harsh sentence. However, the judge went on to stress that, because there was only one complainant, no intercourse, no physical aggression (despite the “unpredictable rages”), and the fact that the accused did not pose an ongoing threat as a sexual predator, a community-based sentence was appropriate.²⁴⁹ It is not until the judge comes to his discussion of ancillary orders, including whether to impose restrictions on the father’s ability to work or commu- nicate with children, that we learn that he “appeared to take an interest in the sexual development of other players” on his daughter’s soccer team.²⁵⁰ Clearly, this judge had some concerns about the risk the offender presented to other children even though he repeatedly referred to the low level of risk. In the exceptional case where a father is evaluated as having a moderate or high risk of sexual offending, higher sentences generally follow.²⁵¹

The fact that all six father cases where the Crown made a dangerous offender application involved men who also assaulted girls outside of their families, in addi- tion to their daughters, is consistent with the suggestion that risk is more visible to prosecutors and courts where non-family members are targeted.²⁵²

 

1. EGY, supra note 85; H, supra note 106; Law, supra note 60; Munro, supra note 233;

PEM, supra note 130; R c Guindon, 2015 QCCQ 7659 [Guindon].

1. RM, supra note 67; PEM, supra note 130; JW, supra note 194; R v H, supra note 106;

R v WR, 2016 ONSC 2362; R v JB, 2016 ONCJ 531.

1. D(DA), supra note 242.
2. Ibid at para 32.
3. Ibid at paras 33–34.
4. Ibid at para 41.
5. See e.g. CCP, supra note 87, where a father vaginally and anally raped his daughter multiple times over the course of a summer. He was labelled as moderate to high risk of reoffending and received a sentence of seven years of imprisonment.
6. Four of these cases involved biological fathers (EGY, supra note 85; R v H, supra note 106; Law, supra note 60; Guindon, supra note 245) and two involved stepfathers (PEM, supra note 130; Munro, supra note 233). The men in H and PEM received indeterminate sentences whereas the other men were given long-term supervision orders in addition to a determinate sentence.

Ongoing Abuse

What makes sexual abuse by fathers particularly devastating for complainants is that these crimes often continue and even escalate over a long period of time. These girls are quite literally trapped in their own homes and often assaulted over a period of years. The long-term nature of many of these crimes is always a serious aggravating factor in sentencing and one that should lead to sentences harsher than for most one-time sexual assaults against adolescents.

Almost all of the stranger sexual assaults in our sample involved a single incident of sexual assault, and yet they received sentences on average seventeen months lon- ger than fathers who were often found to have committed multiple sexual assaults over an extended period. We suspect that the deeply embedded stereotype about stranger sexual assaults being the most serious is influencing the sentences along with the fact that fathers were generally perceived as being at lower risk of recidi- vism than strangers. The Supreme Court of Canada has now cautioned against this stereotype in Friesen, where the Court indicated that an offender who abuses a po- sition of trust in sexually offending against a child should receive a longer sentence than an offender who is a stranger to the victim.²⁵³

However, the fact that many cases involved years of abuse should not lead to the conclusion that it is mitigating when the sexual abuse takes place over a shorter, but nonetheless considerable, period of time. In R v WHY, for example, the father had almost daily sexual intercourse for a period of six weeks with his daughter who had come to stay with him in the summer in an attempt to “improve her lifestyle choices.”²⁵⁴ The sexual assaults only ended because the father was caught by the complainant’s older half-sister. The accused, who had two prior convictions for sexual offences against young girls, was sentenced to five years of imprisonment.²⁵⁵ The Court of Appeal, in rejecting the Crown appeal from sentence, acknowledged the insidious nature of this abuse and the fact that it only stopped because he was caught. Nonetheless, the Court went on to consider the “relatively compact period of time” over which the offences occurred.²⁵⁶ We agree that a father who sexually abuses his daughter on one occasion should generally be sentenced less severely than a father who sexually abuses his daughter over a number of years, although cases of an isolated sexual assault by a biological father, in particular, were rare.

 

1. Friesen, supra note 202 at para 130.
2. WHY, supra note 60 at para 3.
3. Ibid at para 53.
4. Ibid at para 12. See also CCP, supra note 87 at para 88, where the judge noted that the offences only took place over one summer before the Ministry of Children and Fam- ilies got involved rather than over the course of a number of years, even though the father had vaginally and anally raped his daughter, with force, five times. The Supreme Court noted in Friesen, supra note 202 at para 58, that even a single sexual assault can “permanently alter the course of a child’s life.”

However, six weeks of almost daily intercourse is not a short period of time to be raped by one’s father. The frequency and ongoing nature of this abuse should have been considered as seriously aggravating, not mitigating.²⁵⁷

 

 

Offender’s Background and Criminal History

The absence of a criminal record is also seen as a mitigating factor in these cases,²⁵⁸ but we urge that this factor be considered carefully by judges. A man who sexually assaults his daughter over a number of years should not benefit from being a first offender in light of years of sexual offending. This reasoning was a particular benefit to men prosecuted in historical cases. For example, in R v CAS, the father, who was seventy-three years old by the time of the sentencing, had been convicted of sexual offences against his daughters, adoptive daughters, and foster daughters, all of which took place over a number of years.²⁵⁹ The trial judge found his absence of a criminal record mitigating, and he was sentenced to forty-two months of incarceration. In R v HB, the accused sexually assaulted his daughter for fifteen years, beginning when she was four years old, and was able to conceal this fact for decades.²⁶⁰ He was eighty years old at the time of sentencing and was described by the sentencing judge as having “no prior criminal record and [he] has led an exemplary life looking after his family and the community.”²⁶¹ He was sentenced to five years of incarceration.²⁶² In R v CC, the accused sexually abused his daughter and three granddaughters over a period of thirty-nine years.²⁶³ The abuse of his granddaughters did not begin un- til he was seventy-three years old. He was seventy-seven years old at the time of sentencing. The sentencing judge held that the only mitigating factor was his ab- sence of a criminal record, and he was sentenced to twenty months of imprisonment.

 

1. The Supreme Court of Canada has now confirmed in Friesen, supra note 202 at para 133, that sexual violence against a child that is repeated on multiple occasions and over longer periods of time should attract significantly higher sentences
2. HJB, supra note 86 at para 41; TO, supra note 156 at para 34; R c CC, 2014 QCCQ 6104 [CC].
3. CAS, supra note 138.
4. HB, supra note 47.
5. Ibid at para 6.
6. Historic prosecutions tended to see slightly lower sentences overall, sometimes because of the age or ill health of the offender, and defence counsel often asked for a CSO. In one of a handful of sentencing cases involving a foster father (HS, supra note 138), a man who was sentenced almost forty years after the offences that led to his young foster daughter becoming pregnant, was given a CSO. The judge was somewhat dismissive of the complainant’s decades of suffering, stating that sending the offender to jail would not “cure her state of being” (ibid at para 50). Nonetheless, judges still imposed peni- tentiary time in many of these cases: B, supra note 150; HB, supra note 47.
7. CC, supra note 258.

While we acknowledge that these fathers received significant sentences, especially given their ages, it is the portrayal of these men as first offenders that we find trou- bling. This concern is not limited to historical prosecutions of older men. In R v L(A), the accused, after seeking out a girl to adopt (he and his wife had twin boys), abused his daughter with intellectual disabilities over a number of years, resulting in a pregnancy. The trial judge described the lack of a criminal record as an “important mitigation.”²⁶⁴ Whether in a historic prosecution or otherwise, a man should not be able to conceal a long history of sexual offending and then be able to point to his first offender status.²⁶⁵ The insidiousness of child sex abuse is heightened by the efforts that men engage in to conceal it. Successful concealment over years, and sometimes decades, should be considered aggravating, not mitigating.

 

 

The Role of Gladue

As reported in our earlier article, there was a disproportionate number of Indigenous men in our study, and this was also true in the context of fathers.²⁶⁶ When sentencing Indigenous men, it is important to take R v Gladue²⁶⁷ and section 718.2(e) of the Criminal Code into account. While Gladue received considerable attention in our cases, courts struggled with how to take the Gladue factors into account in these cases. We also know that Indigenous girls are disproportionately targeted for sexual violence,²⁶⁸ a fact that was not acknowledged in cases involving Indigenous com- plainants. The degree to which Indigenous men have themselves been victims of sexual violence, either through residential schools directly²⁶⁹ or through the intergen- erational impact on their family members of residential schools and colonialism,²⁷⁰ came up in a number of the sentencing cases involving fathers.

Generally, we found that Gladue had little impact on the length of the sentences imposed.²⁷¹ To the contrary, we found that Indigenous men received some of the

 

1. L(A), supra note 50 at para 4. The judge indicated that the starting point would have been ten years but for the guilty plea, counselling, remorse, and his “first offender sta- tus” (ibid at para 9). See also HJB, supra note 86.
2. L(A), supra note 50. The offender was sentenced to a total of forty-two months for sexual offences against five girls, which was reduced from sixty months on the basis of totality. The Crown in this case had only asked for a sentence of two years, presumably because of the offender’s age.
3. Grant & Benedet, “ʻStatutory Rape’ Myth”, supra note 3 at 291.
4. [1999] 1 SCR 688.
5. Turpel-Lafond, supra note 146.
6. See e.g. EGY, supra note 85.
7. RRGS, supra note 82; JT, supra note 85 at paras 21–22; GRH, supra note 104 at para 31.
8. One possible exception to this is RRGS, supra note 82, where the offender was sentenced to ninety days intermittent plus probation largely on the basis of Gladue factors. For a case involving a stepfather where Gladue did seem to play a role, see GRH, supra note 104.

harshest sentences in our study.²⁷² While our numbers are too small to draw any broad conclusions, we found that, for the four Indigenous biological fathers who received a determinate sentence, the average sentence was eighty months, while the twenty-eight non-Indigenous biological fathers who received a determinate sen- tence received an average sentence of fifty-four months. The average sentence for the five Indigenous stepfathers who received determinate sentences was sixty-eight months, while the average sentence for the forty-two non-Indigenous stepfathers was fifty-four months. No Indigenous fathers received non-custodial sentences, although one Indigenous father was allowed to serve his sentence intermittently.²⁷³

Judges sometimes noted explicitly that Gladue could not make much difference given the seriousness of the offence.²⁷⁴ In one case, for example, where the judge imposed an eight-year sentence, the court expressed difficulty relating the Indige- nous background of the offender to the sexual assault of his stepdaughter.²⁷⁵ The accused had been adopted by a non-Indigenous couple as a child, had developed alcohol problems at the age of eleven or twelve, and had ended up in a group home, which he left at the age of sixteen. He never saw his adoptive parents again but was later able to reconnect with his birth family. Despite the clearly traumatic effects of being adopted out of his culture and community, the court stated that there was no evidence that his substance abuse was linked to his Indigeneity because there was no evidence of substance abuse in his birth family, a misguided understanding of the impact of colonial trauma.²⁷⁶

We also note that the Crown brought dangerous offender applications in four cases involving biological fathers, at least two of which involved Indigenous men,²⁷⁷ including the only biological father given an indeterminate sentence.²⁷⁸ This finding

 

1. See e.g. L, supra note 157, where the Indigenous offender was sentenced to eight years for the sexual abuse of his stepdaughter. While this was a particularly serious case be- cause it resulted in a pregnancy, this sentence appeared to be somewhat out of line with sentences given in other cases. See also GEW, supra note 47, where a father sexually assaulted two of his daughters. The total sentence was reduced to seven years on the basis of the principle of totality. In TO, supra note 156, the offender received an eight- year sentence for sexually abusing his stepdaughter for a period of twenty-six months, five to six times a week—abuse that led to the complainant having two abortions. (He received another eight years for aggravated assault and breaking and entering into a dwelling house with intent to commit sexual assault of a child).
2. RRGS, supra note 82.
3. JT, supra note 85 at paras 27–28. In this case, a father received seven years for abuse against his daughter and two stepdaughters.
4. L, supra note 157.
5. Ibid at para 36.
6. H, supra note 106; EGY, supra note 85.
7. H, supra note 106. One stepfather was also given an indeterminate sentence as a danger- ous offender: PEM, supra note 130. The offender in this case was described as having “borderline intelligence, mild mental retardation or intellectual disability” (ibid at para 11).

is consistent with our findings in the larger study where five of the sixteen accused who were found to be dangerous offenders (31 percent) were Indigenous as were two of the five men given indeterminate sentences (40 percent).²⁷⁹ By contrast, only one of twenty-two non-custodial sentences (5 percent) in the larger study was given to an Indigenous man.²⁸⁰

It is important to recognize that sometimes the information that is provided as background to explain the impact of colonialism and residential schools in a Gladue report can be a double-edged sword in sentencing for violent offences, and judges need to be attuned to this reality. For example, it may be mitigating in sentencing where an accused asserts that he was a victim of sexual abuse as a child. However, it may also be characterized as a risk factor for future offending and then be used to justify a harsher sentence.²⁸¹ For some of the Indigenous men convicted in our study, chaos and disruption in their own early lives, and/or a history of substance abuse, may have contributed to them being perceived as a greater risk or made them less able to express remorse.²⁸² We note that the only community-based sentence given to a biological father in our sample was given to an (apparently Caucasian) man with “a stable and positive childhood” with two parents in the home and a supportive relationship among his siblings.²⁸³

 

 

Offenders as Victims of Child Sexual Abuse

Allegations that the father had himself been a victim of childhood sexual abuse were not limited to Indigenous men in our sample. It was not uncommon to see asser- tions that the accused had been sexually assaulted as a child,²⁸⁴ although evidentiary support for these assertions was only rarely mentioned in these cases.²⁸⁵ Similarly, a number of judges cited a passage from D(D) describing how those abused in childhood are more likely to themselves become abusers.²⁸⁶ In some cases, this was treated as a mitigating factor.²⁸⁷ This is a complex issue, the resolution of which is

 

1. Grant & Benedet, “ʻStatutory Rape’ Myth”, supra note 3 at 283.
2. R v LI, 2014 MBPC 59. See also Grant & Benedet, “ʻStatutory Rape’ Myth”, supra

note 3 at 283.

1. See e.g. EGY, supra note 85.
2. GEW, supra note 47.
3. D(DA), supra note 242 at para 7. One adoptive father also received a conditional sentence order: ADT, supra note 219.
4. L(A), supra note 50 at para 7; WHY, supra note 60 at para 19; D(DA), supra note 242 at para 34; R v BJT, 2016 ONSC 6616 at para 29; SM, supra note 214 at para 21; AEB, supra note 209 at para 13; CCP, supra note 87 at para 36.
5. For a rare exception, see R v B, supra note 150 at para 15.
6. D(D), supra note 221 at para 37.
7. R v B, supra note 150 at para 25; WHY, supra note 60 at para 19; D(DA), supra note 242 at para 34.

beyond the scope of this article. Adult male sex offenders against children as a group may be more likely to have been victims of child sexual abuse than non-offenders, although estimates of the difference vary widely depending on the method used to study this impact.²⁸⁸ However, judges often cite this factor as if there is an inevitable link and fail to recognize that an increased incidence does not prove a causal role and, especially, does not do so in any individual case.²⁸⁹ In other words, just because a man was sexually abused as a child and becomes a perpetrator himself does not mean that one caused the other. There may be intervening variables that impact risk, such as physical neglect and witnessing violence in the home, that help explain why some male sexual abuse victims are more likely to become abusers.²⁹⁰

Importantly, a majority of adult male perpetrators do not have a history of child sexual abuse, and a majority of victims of such abuse do not become abusers.²⁹¹ Nor is this cycle of abuse seen in female victims of child sexual abuse, who make up the large majority of victims but who rarely go on to become abusers themselves. The reality is that incest is primarily committed by fathers against girls;²⁹² female incest against boys is comparatively rare,²⁹³ as is a father sexually abusing his son.²⁹⁴ The patterns of offending we saw in these cases suggest that much more is at play than the fact that some of these men were sexually abused as children. We continue to raise boys in a culture in which male aggression is celebrated and male violence against women is eroticized. Men’s sense of sexual entitlement to the bodies of women and girls finds an outlet in the patriarchal family structure, which is complicit in father-daughter sexual abuse. These accused, whether or not they reported having been abused as children, groomed their daughters, controlled them, isolated them from children their own age, and often behaved more like abusive boyfriends than fathers. These same gendered power dynamics were found in these cases regardless of whether there were reports of past sexual abuse of the father in childhood.²⁹⁵

 

1. See Ashley F Jespersen, Martin L Lalumière & Michael C Seto, “Sexual Abuse His- tory among Adult Sex Offenders and Non-Sex Offenders: A Meta-Analysis” (2009) 33:3 Child Abuse & Neglect 179; Chelsea Leach, Anna Stewart & Stephen Smallbone, “Testing the Sexually Abused-Sexual Abuser Hypothesis: A Prospective Longitudinal Birth Cohort Study” (2016) 51 Child Abuse & Neglect 144 at 150–51.
2. D(DA), supra note 242 at para 34; L(A), supra note 50 at para 7. See also D(D), supra

note 221 at para 37.

1. See Daniel Salter et al, “Development of Sexually Abusive Behaviour in Sexually Victimized Males: A Longitudinal Study” (2003) 361 The Lancet 471 at 475.
2. Glasser et al, supra note 43 at 488.
3. Rice & Harris, supra note 241 at 329.
4. Glasser et al, supra note 43 at 488.
5. Rice & Harris, supra note 241 at 330.
6. In handing down one of the most severe determinate sentences imposed in our cases, the judge in DLW, supra note 81 at para 8, even commented on the absence of sexual abuse in the background of the offender. In this case, the accused received a sixteen-year cumulative sentence for sexual interference, pornography, and bestiality charges.

Conclusion

The father cases as a whole demonstrated a number of features that we consider significant, especially when viewed in light of the history of feminist engagement with the issue of men’s sexual abuse of girls. The first is that the cases we saw clearly demonstrated that fathers are in many cases acting out a sense of patriarchal control over their daughters through acts of sexual abuse. Fathers rationalized their behaviour as natural, protective, corrective, or educational, and the controlling be- haviours sometimes extended well beyond the sexual abuse to permeate the entire relationship between the father and the daughter. There were similarities between this behaviour and patterns of coercive control exercised by some men in intimate relationships with adult women.

Second, these cases made clear that the abuse in question was almost always openly rejected and demonstrably unwanted by the daughters at the time it took place and that harm was compounded for these girls by their guilt and shame over the possible consequences of disclosure. These were not cases in which fathers failed to resist the sexual overtures of their daughters or in which the girls consid- ered their stepfathers to be in a boyfriend-type relationship with them. In most cases, the fathers ended up having to resort to force, threats, or attacking girls when they were asleep or otherwise defenseless.²⁹⁶ There were a very small number of cases in which the grooming behaviour was sufficiently effective to make the girls believe that they were engaging in some kind of special activity.²⁹⁷ Yet, in almost every case, it was the daughter who disclosed the abuse rather than it being discovered by a third party observer, suggesting that even those girls who were manipulated into thinking the activity was normal came to understand that what was being done to them was wrong and harmful. Cases where girls were tricked into going along with the abuse resulted in a particularly profound breach of trust for the victims.²⁹⁸

Third, only a very small number of these cases involved mothers as perpetrators. We had three mothers in our sample, and, in all of those cases, the mother was act- ing in concert with the father. All of the mothers were convicted, and they received the highest sentences on average of any group of perpetrators, including strangers. Beyond that, the role of mothers is complex in these cases. In some cases, the mother

 

1. IWS, supra note 60; DRWH, supra note 85; OM, supra note 85; LV, supra note 65; EGY, supra note 85; GEW, supra note 47; JT, supra note 85; Medeiros, supra note 82; MC, supra note 84; DV, supra note 106; H, supra note 106; ST, supra note 106; JV, supra note 45. See also HJB, supra note 86, where the accused told the complainant that he had burned a compact disc of their chat history, which he would show her mother if she did not acquiesce to sex. This chat history apparently contained com- ments about smoking, alcohol, drugs, and boys.
2. RJY, supra note 65; R v Laramee, 2016 MBQB 165.
3. RJY, supra note 65; GEW, supra note 47; WHY, supra note 60; JAVC, supra note 45;

RAH, supra note 80.

did immediately go to the police when their daughters reported the abuse, and, in other cases, the mothers denied the abuse for a period of time but eventually sup- ported their daughters. However, in other cases, the mothers took the side of the ac- cused, and the girls were left without any parental support to work their way through the criminal justice process.

Fourth, the impact of this abuse on the girls in these cases was devastating and more severe than we saw in any other category of sexual offences against adolescent girls. We did not see a single case where a girl reported only minimal harm and disruption of her life or that she had been able to put the abuse behind her. Instead, there were stories of lives being upended in the most profound ways. The abuse also had a devastating impact on families, the brunt of which fell on these girls. The girls in these cases showed tremendous courage and persistence in reporting their abuse in the face of threats from their perpetrators and a lack of belief on the part of some family members or other adults.

Finally, it is difficult to reach an unambivalent assessment of how our courts are handling these cases. On the one hand, conviction rates are reasonably high, although lower for fathers than for most other groups of offenders. Those who are convicted generally received harsh sentences, albeit less harsh than strangers, despite the abuse of trust involved and the fact that fathers were much more likely to have perpetrated their abuse over a considerable period of time. Nonetheless, there is a sense of arbi- trariness in some of the decisions, both on conviction and sentencing. While there were a small number of cases where a reasonable doubt was not surprising, there were also acquittals where judges latched on to small inconsistencies in testimony or minor issues of credibility in order to acquit. With the sentencing cases, while many fathers received harsh sentences, there was no consistent approach to sexual assaults that took place over a number of years or to cases involving multiple victims. We also found that Indigenous men were sentenced more severely in these cases, a trou- bling finding that warrants future research.

Our purpose in writing this article was to share some of these girls’ stories to reinvigorate the discussion around sexual abuse within the family, which has up until now largely evaded scrutiny from the #MeToo movement. We worry that the recent revelations about the prevalence of sexual abuse in other social institutions may have overshadowed research and interest in the family as a primary site for sexual violence. The sheer number of cases involving fathers in our sample should give pause because our sample represents just the tip of the iceberg of actual sexual abuse by fathers. Our study undermines a number of long-standing stereotypes about father-daughter sexual abuse: that violence and force are rarely used by fathers, that girls initiate sexual activity, that mothers are consistently to blame for such abuse, and that it is harmless to the girls involved. Instead, we found that sexual abuse by fathers may be simultaneously the easiest to perpetrate, the hardest to uncover, and the most damaging to victims. These stereotypes about father-daughter sexual abuse continue to influence scholarly approaches to this subject, obscuring recognition of the exercise of male power. Given all of the barriers to reporting that these girls have

had to overcome, systems must be in place that facilitate disclosures about sexual abuse within the family and that make clear that such abuse cannot be committed with impunity.

 

About the Contributors / Quelques mots sur notre collaboratrice

Janine Benedet is a professor in the Peter A. Allard School of Law at the Uni- versity of British Columbia. Her research focuses on male sexual violence against women, with a particular focus on the criminal law of sexual offences, prostitution, and pornography. Her recent work with Isabel Grant has considered the mistake- of-age defence, the sexual assault of adolescent girls by male family members, and sexual assault cases involving older women. She is a frequent presenter at judicial education conferences and an associate editor of the Criminal Reports. She has ap- peared as intervener counsel in several pro bono cases involving sexual violence against women.

Isabel Grant is a professor of law in the Peter A. Allard School of Law at the Uni- versity of British Columbia. She specializes in criminal law, with particular exper- tise in violence against women, including sexual assault and homicide. She is a co-investigator, with Janine Benedet, on a Social Sciences and Humanities Research Council Insight grant that is examining sexual violence at different points in the lifespan of women and girls. She volunteers her time with a number of public inter- est groups involved in litigation.