Several women on the North Shore have
written to me expressing distinct uneasiness as a

result of last spring's

Pappajohn rape case

decision by the Supreme Court of Canada.

Their fear ts that a serious
breach might have opened in
the law's ability to protect
women from physical abuse.

On May 20 the Supreme
Court upheld the rape
conviction of Vancouver
businessman George
Pappajohn, who had ap-
pealed on the grounds that it
was his “honest belief” that
the woman had consented to
intercourse.

The Supreme Court judges
turned down the appeal, but
in the reasons for
judgement, the Hon. Mr.
Justice Mclntyre stated he
agreed with the notion that
the defence of “mistake of
fact” should be available to
men c ed with rape in
Canada.

The strongest opinion on
the matter was expressed by
the Hon. Mr. Justice
Dickson, who asked if a
defence of honest, though
mistaken, belief in consent
must be based on reasonable
grounds. .

He seemed to answer the

question himself when he
wrote: “In a case of alleged
rape, where a fact or cir-
cumstance is not known to,
or is misapprehended by, the
accused, leading to a
mistaken but honest belief in
the consent of the woman,
his act is not culpable in
relation to that element of
the offence.”

Translated, that seems to
me to mean that if an ac-
cused rapist “honestly”
didn't realize the woman he
was assaulting didn't want to
be assaulted, then he may
not be guilty. :

In practical terms, at any
rate, some lawyers I've
talked to have expressed the
fear that this might set a
precedent which could be
used by future accused
rapists as a defence, making
it that much more difficult
for rapists to be convicted.

oes

Maverick NDP MP Svend
Robinson describes the
judgement as “disturbing”
and “most unsettling.” In the
House of Commons he asked
Justice Minister Jean

‘risk of having no

Chretien to take steps to
“remove this very serious
injustice to all women in this
country” by cancelling the
effect of the judgement with

. amendments to the Criminal

Code.
Mr. Robinson complains
that the Pappajohn

judgement “puts women
back in the position of
having two options — either
resist forcibly, even if they
risk their lives in so doing, or
submit to the rapist at the

legal
remedy at all.”

I've read the transcripts of
the judgement and it seems
to me that Svend Robinson
overstates the additional risk
to which women might be
exposed by the ruling,
which, after all, applies to a
highly specific set of events
in which some of the usual
elements of rape were
missing.

So I don't think anybody
need worry that rapists have
been handed a carte blanche
to run amok on the streets.

Mr. Justice Dickson
himself asked the pertinent
question in his dissenting
opinion:

“The usual response of
persons accused of rape is —

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‘she consented’. Are such
persons now to be acquitted,
simply by saying: ‘even if she
did not consent, I believed
she consented’? The concern
is legitimate and real.”

He added, however, that
“if an honest lack of
knowledge is shown, then
the subjective clement of the
offence is not proved.”

Mr. Robinson has good
reason to be wary of legal
decisions that might offer

any additional loophole to
rapists. But I have an idea
that part of the reason for
my letters from North Shore
women worried by the
Pappajohn case stems from
the fact that the Supreme
Court of Canada consists of
seven men.

In this particular instance
the Court’s deeply reasoned
judgements may — however
mcorrectiy — be suspected
by some women of being

subconsciously biased due to
the Court's all-male com-
position.

Though such suspicions
have no. legitimate foun-
dation, they do iead to
another, perfectly proper
thought.

In our new age of
liberated self-awareness it
may be high time to consider
appointing a woman to the
Supreme Court.

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