Some Constitutional Considerations on Sexual Violence against Women
AbstractIn this article, the author examines the ways in which women's constitutional rights can, and should, inform our understanding of sexual violence and mandate its proper treatment by the courts. The author argues that a purposive analysis of the rights guaranteed by s. 7 imposes an obligation on the state to protect women's lives, liberty, and physical and mental security against sexual violence. At the same time, the equality provisions of ss. 15 and 28 require that the gender specificity of sexual violence, and its relation to the larger social context of women's inequality, be addressed, with the result that sexual assault is recognized as a form of sex discrimination. Through decisions such as R. v. McCraw, determinations of women's individual and group-based rights, in light of their social context, are shown to be essential to a full realization of the Charter's claims to equality and to life, liberty and security of the person.
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