The Saturday evening in September started out innocently enough, with two first-year students from Concordia University getting ready to enjoy a night out in Montreal. Tess (who wishes to remain anonymous) was 18; her girlfriend was someone she knew from high school. At a bar on Boulevard Saint‑Laurent, Tess met a football player from McGill University. They danced. They kissed. He and one of his roommates, another football player, invited the two girls back to their place. They said sure.
“They offered us drinks, and my friend said no, that she’d had enough. They got cans of beer and brought them over, and mine was already open. I still think that was weird,” Tess says now, nearly four years later. The football players’ two other roommates came home; the group of four became six. Eventually they headed to the back patio, and that’s where Tess’s memory starts to cut out.
She says she was “really drunk” by then and suspects her drink was drugged—though she’s not sure whether it could have happened at the bar or the house. She does know that she went inside at one point to use the bathroom and that her friend had left without her. After that? “The next thing I remember, I was in a bedroom with the guy I’d met at the bar, and I didn’t have any clothes on,” she says. She doesn’t recollect how they started having sex, just that when she regained consciousness, he was on top of her.
Then Tess saw a second roommate, also a football player, standing naked in the doorway. “I could tell where it was going, so I started to say, ‘No, I don’t want to …’” she says. Tess recalls the first guy saying, “We’re all bros here. Just go with it,” as he got out of the bed and the second guy got into it. Tess alleges that he, too, had sex with her. Eventually, a third roommate, the one from the bar, appeared in the door. That’s how it went, back and forth, among Tess and the three football players, according to her account of that night. (FLARE requested an interview with each young man through his respective lawyer to get his side of the story. All three lawyers declined on behalf of their clients. All three also noted that their clients maintain their innocence—and maintain that the sex that took place that night was consensual.)
“There were always at least two of them in the room at a time,” Tess recounts. “They were watching each other.” She didn’t kick and scream or call for help. Instead, she told them she hadn’t shaved and that her breasts were too small. They kept going, and eventually she stopped talking. “They’re all huge football players. What could I do?” (Tess, who is five-foot-six, weighed around 100 pounds at the time.) They weren’t rough with her, just indifferent. Eventually they left her on the bed and shut the door. She passed out.
In the morning, Tess says the first young man woke her up. “He threw my clothes at me and said I had to leave because they had practice.” Tess asked what happened; he told her she had had sex with all three of them. Confused and hungover like never before—she describes feeling “dazed” and “out of it”—Tess headed home. Later, she phoned her sister. “She was like, ‘It sounds like you were raped.’ I said, ‘No, no, I’m fine.’”
But she wasn’t fine. She stopped eating and skipped class. A month later, she went home for Thanksgiving and—largely because of the emotional fallout from the alleged assaults—never returned. She struggled to find her own version of the events. “You don’t want to accept what happened, so you talk yourself out of it,” Tess says. “You’re like, Wait, I went to their house and I ended up in his bed and I must’ve been flirting with him, so it looked like I wanted it. I must have.” It wasn’t until she told her mom, days later, that she began to consider the possibility that she might have been raped.
A week passed before she went to a doctor and then to the police. This delay meant there was no way of proving whether she had been roofied. Nearly seven months later, in April 2012, all three young men were charged with sexual assault, and two with forcible confinement; the latter charges were eventually dropped. In November 2014, the Crown also dropped the sexual assault charges after a witness came forward via email. The witness, Tess’s former residence advisor, claimed Tess told her the morning after that the sex had been consensual, which Tess denies.
Debora De Thomasis, a Montreal-based defence lawyer for one of the accused, contends that Tess wasn’t drunk and that there was no evidence to suggest she’d been drugged. In “cases where GHB was used, the real victim would have never remembered ANY details of ANY assault whatsoever,” she wrote in an email. (However, a former Crown attorney who has handled a lot of sexual assault cases told me later that rape drugs vary in effect.) De Thomasis also notes that Tess kissed one of the accused at the bar and talked about threesomes at one point. Tess admits this is true but is angered by the idea that these actions imply consent.
After talking to Tess, emailing with De Thomasis and speaking to the other lawyers involved, as well as the Crown prosecutor, the only thing that’s clear about this case is that it remains a mess. It’s impossible to prove whether a crime took place. But the case is equally impossible to ignore for the questions it raises about the contentious issue of consent, what constitutes sexual assault, the burden of personal responsibility and the definition of healthy sexual behaviour.
In other words, it’s a standard case of alleged rape.
In light of the Jian Ghomeshi scandal, we’ve become familiar with the statistics surrounding sexual offences in Canada. They happen a lot, mostly to girls and women (92 percent of victims are female). By “offences,” I mean everything from unwanted touching to forcible penetration. The annual number of female victims who report a sexual assault, about 472,000, could populate the city of London, Ont. University-aged women, like Tess, are in greatest jeopardy; one in four are at risk of rape or sexual assault. Those numbers represent an educated guess: we don’t know true statistics, because an overwhelming majority of female victims—about 97 percent—don’t go to police after an assault, a fact poignantly illustrated by the popularity of the #BeenRapedNeverReported hashtag started last fall. Sexual violence isn’t a new phenomenon, and statistics surrounding it shouldn’t come as a surprise, but our responses to both the crime and its victims are changing.
For the first time, we’re listening to women like Lucy DeCoutere and Reva Seth, who, along with more than a dozen other anonymous victims, accused former CBC radio host Ghomeshi of sexual assault; women like Emma Sulkowicz, a Columbia University student whose mattress protest has drawn international attention to the issue of sexual violence on campus; women like the two dozen who have come forward to claim Bill Cosby assaulted them.
High-profile cases such as these dramatically direct attention to the problem, and they may well be the tipping point for public awareness. The issue has gained steady momentum from a succession of awful incidents, including the suicide of Nova Scotia teenager Rehtaeh Parsons in 2013; the brutal rape of a young girl by two football players in Steubenville, Ohio, in 2012; and the 2010 alleged gang rape of a teen in Pitt Meadows, B.C., the photos of which were posted on Facebook. Each event provides overwhelming evidence that we are failing victims of sexual violence.
But if we’ve learned anything from these horrible situations, it’s that there are some things we can do to reduce the incidence of sexual assault. They just might not be the same things we’ve been doing for decades. For too long, the majority of rape prevention has focused on women controlling their behaviour, says Elizabeth Sheehy, a law professor at the University of Ottawa. Add to that the fact that some guys seem relatively untroubled by the idea of having sex with incapacitated partners; a recently published U.S. study found that one in nine college men would force a woman into having sex, “if nobody would ever find out and there wouldn’t be any consequences,” without considering it rape. This disturbing stat is likely attributable, in part, to a convenient lack of male knowledge about the reality of sexual assault and the law of consent.
Even the most popular existing definition of rape arises from an intense focus on women’s behaviour. Back in 1992, the Canadian Federation of Students launched the anti-rape campaign No Means No. As a result, generations of North American students were inoculated with the notion that a victim’s deliberate refusal or physical resistance defined sexual assault. Did you say no? Did you fight back? Traditionally, the answers to these questions are how we’ve established whether or not a crime has taken place. Sexual assaults, however, don’t always fit the yes/no model or involve physical violence. Fortunately, new schools of thought are emerging regarding both rape prevention and how we define consent.
In the fall of 2014, California passed a law demanding its universities formally adopt a “yes means yes” protocol when investigating sexual assaults on campus. Similar affirmative consent legislation has been proposed in New Jersey and New Hampshire, and there are calls for it in New York, too. There’s no evidence to suggest “yes means yes” is any more effective in reducing the incidence of rape than “no means no,” but the shift in language means both partners have to establish each other’s desire—Yes, I want this—before proceeding. It’s more nuanced than it seems: perhaps saying yes to every stage of sexual activity isn’t realistic, but the rephrasing does do a better job of establishing the idea that consent can’t be assumed. Along this line, consent workshops are growing in popularity at colleges and universities across Canada, including the University of British Columbia, and Ontario’s Lakehead University and University of Guelph; both McGill and Concordia launched programs shortly after charges against the three football players were made public. But while these efforts are positive, experts caution that consent on its own is only a small part of prevention education.
“There is no evidence that a misunderstanding of what consent is is the cause of sexual assault,” says Charlene Senn, a psychology and women’s studies professor at the University of Windsor and rape prevention expert. Confusion about what constitutes consent, though, may contribute to rape culture, a lightning-rod term for a host of attitudes, norms and practices that perpetuate sexual violence. Actively misinterpreting consent—the idea that the victim “was asking for it” because she kissed or flirted with the alleged rapist—is one example. Assumptions about a victim’s behaviour frequently appear to be more weighty considerations than the actions of the other party, who is often implicitly characterized as a red-blooded male who can’t stop the train once it’s out of the station. “I think people just fundamentally misunderstand consent and some do that wilfully,” says Kate Harding, author of the forthcoming Asking for It: The Alarming Rise of Rape Culture—and What We Can Do About It. “Because there’s this huge disconnect between how people actually have sex and what we think when it comes to cases of rape. We’re always looking for that kind of hypothetical rare situation of, Maybe he just really misunderstood.”
The Criminal Code of Canada follows an affirmative consent ideal, for the most part; consent must be given by word or conduct, and intoxication renders a person incapable of giving it (as does being a minor). In reality, however, it’s not that simple, says David Butt, a former Crown prosecutor based in Toronto. First, the unreliability of an alleged victim’s memory can act as a significant barrier to establishing beyond reasonable doubt what actually happened. Second, the court must consider the element of agency: if an alleged victim had passed out, then it’s clear consent could not be offered, but if she was conscious and behaved with some degree of willingness, things can get very complicated. “Alcohol-fuelled sexual activity is a minefield for both participants,” Butt says.
In Tess’s case, even though she says she was intoxicated, she feels that during the preliminary hearing to determine whether the case would go to trial, her every gesture was scrutinized for implied consent. “You have to try to explain why it was wrong and how it affected you, and their lawyers are just attacking you and saying, ‘Are you sure you didn’t want it? It seems like you wanted it. You did this,’” she says, noting that after two days of questioning along these lines, she began to wonder if she did want it. The email from Tess’s former residence advisor wasn’t the only reason the case was dropped, according to Crown prosecutor Miguel Boisvert. “It’s not a matter of one email,” he says. “It’s about not believing I was able to prove the case beyond a reasonable doubt.”
“We’re all bros here—just go with it” could be the unofficial motto of rape culture, which seems as much a part of the university experience as frosh week and pub night. Christina Muehlberger, president of the Graduate Students’ Association at Carleton University, says that pro-rape chants—like, “Y is for your sister, O is for oh-so tight, U is for underage, N is for no consent, G is for grab that ass … We like them young,” which was heard in 2013 at St. Mary’s University in Halifax—are common. Last fall, some Carleton frosh even wore tank tops that read “f-ck safe spaces” on the front and “Or me” on the back. The university responded with a statement that asserted that Carleton is a “community of respect,” which came off as weak to Muehlberger. In response, she co-organized a town hall meeting and used the incident as a means to discuss rape culture. Advocates like Muehlberger and Senn want to create actual communities of respect and, by doing so, reduce incidences of sexual assault. Both are optimistic about bystander education, an increasingly popular tactic that encourages men and women to step in before an assault happens.
Thanks to Senn, the University of Windsor was the first in Canada to institute a mandatory bystander education course for certain disciplines. (McGill is currently preparing to launch a similar voluntary program.) Created by a group of sociologists, psychologists and violence-prevention experts at the University of New Hampshire, Bringing in the Bystander tackles everything from sexism to street harassment to sexual assault. Facilitators teach students to recognize that there’s a spectrum of sexual violence and provide options for how to safely intervene. “Basically, what you’re doing is creating a community full of people who will stop something as it’s developing, and that should reduce perpetration in the longer run,” says Senn. Participants are asked to consider common scenarios: if you see a drunk friend leaving a party with a strange guy, what should you do? Options include stepping in to take her home yourself or alerting campus police to a vulnerable person. (Tess admits she was angry with her friend for leaving her alone that night, although to be fair, they had never discussed going home together.)
Nate Connel, 25, attended Bringing in the Bystander as a Windsor student and later became a facilitator. He credits the workshop with showing him how men can be involved in the fight against sexual violence. “If it’s only women speaking about it, then it’s perceived as a women’s issue, which it’s not,” he says. “It’s also a men’s issue, since most sexual violence is committed by men.” Men often choose not to intervene, says Connel, because they assume doing so means getting physical. Bystander training provides alternatives and doesn’t condone intervening solo: “Involving others is always safer.”
Connel says he gets mixed results from teaching the program to young men: some are “whatever” on the topic of sexual violence, some are defensive, some seem grateful for being given options to help. He notes that the “whatever” response may arise from the fact that this is often the first time guys have been involved in such a discussion. “There was nothing in my high school’s health program, that I can recall, that defined consent—or even sexual assault,” he says.
Sexual violence prevention experts, such as Sarah DeGue of the U.S. Centers for Disease Control and Prevention, increasingly argue that these kinds of initiatives should be taught to kids and adolescents, too. “We know that sexual violence often occurs for the first time before age 18,” says DeGue. “The best opportunity we have to reach potential perpetrators is when those personality traits are still developing.” A 2014 CDC review of rape-prevention initiatives supports that idea. Led by DeGue, researchers determined that two U.S.-based programs, Safe Dates and Shifting Boundaries, reduced the occurrence of sexual violence. The findings suggest that kids who learn how to be better friends, partners and community members are far less likely to commit acts of violence.
The intensity and duration of these initiatives are part of what makes them effective. Both Shifting Boundaries and Safe Dates comprise six and nine sessions, respectively, and give students the opportunity to practise necessary skills and behaviours. One lesson in Safe Dates, for example, asks kids to establish a list of harmful dating behaviours, consider how each one may become abusive, and then come up with a plan for how they would behave as a romantic partner.
A similar Canadian module, The Fourth R, is geared toward kids in grades 7 to 12 and has been used in more than 5,000 schools nationwide. Developed by researchers at Toronto’s Centre for Addiction and Mental Health, the 21‑lesson course tackles sexual violence, bullying and assertive communication. Like Safe Dates and Shifting Boundaries, it was designed to reduce dating violence among teens, and it’s been proven effective. “It tells kids how to have good relationships and how to get help if they don’t,” says David A. Wolfe, head of prevention science at CAMH, who co-created the program. “You practise the skills in much the same way you’d practise dribbling to become a better basketball player.”
The Fourth R does address sexual violence, and specific components may minimize incidences of harassment and groping. It also challenges sexist and misogynistic language, asking kids to consider the social attitudes that underlie, say, the lyrics from a Pitbull or Chris Brown song. And they’re taught that consent cannot be assumed or given under the influence of alcohol or drugs.
Wolfe would like to see this program introduced as early as grade 4: “Research shows that’s when sexual harassment starts.” However, it’s important to note these types of programs don’t result in overnight change. “It’s at least a one-generation commitment,” he says. “It won’t happen in 10 years—it’s going to be 25.” And it won’t happen at all if we don’t start teaching this kind of material to kids across all provinces. Fortunately, some Canadian legislators are getting the message. In January, Ontario Premier Kathleen Wynne asked the province’s Ministry of Education to include healthy-relationship and consent education in its revised sexual education curriculum for September. Senn is also working on a new “sexual assault resistance” program designed for university-aged women that teaches self-defence techniques and ways to dismantle the advantages perpetrators have. The role that alcohol plays in giving rapists the upper hand is dealt with, for instance, by nominating a designated driver, so to speak—a sober friend who can ensure you get home safely.
Tess didn’t get any such form of sex ed in school, and she believes kids and teens could only benefit from greater awareness of their sexual rights and responsibilities. She also thinks universities should have mandatory consent training during frosh week. Though hurt and troubled by all that’s transpired, she’s not vengeful. More than anything, she wants to know whether the young men think that what happened that night was OK. She worries that the legal process has only reinforced the idea that there’s nothing wrong with having sex with a woman who is so drunk she can’t remember how she wound up in your bed. Tess’s desire for dialogue raises a good point: without male voices, we’ll never be able to engage in a meaningful conversation about sexual assault, just an endless circuit that perpetually loops back to the beginning.
So can a problem like rape ever be solved? No one I spoke to for this piece dared to dream so big, though they all believe there are things we can do to reduce its incidence. And some of the more hopeful feel we’re finally at a moment—culturally, socially and politically—in which we can address the factors that are within our control. Senn, for one, is cautiously optimistic that increased media attention on these new paths to prevention, involving both sexes, will translate into real change. “The obstacle now may be that people underestimate how difficult this is,” she warns. “But I think we may be at the start of a very important shift.”
For many, however, this shift will come too late—and those are the women Tess, now 21, wants to help. Currently studying criminology and psychology at an Ontario university, she wants to get her master’s degree and then create a safe place where victims of sexual crime can get their bearings before going to the police. “Victims could come and there’d be psychologists and lawyers and social workers and therapists, and they could talk to the people they need to so they can learn their rights,” she says. “Because when you’re a victim, you don’t know what to do.”
This story is part of #Project97—a year-long conversation about sexual assault, abuse and harassment. Visit project97.ca for more details on this collaborative project by Rogers-owned media outlets, and join us on Twitter with the hashtag #Project97.