We’re going backwards so we can map our way forwards.
We’re going backwards so we can map our way forwards.
0:10 - The law has a gender
2:06 - Common law and British colonial history
3:15 - A system designed to exclude: patriarchal origins of law
6:11 - Women as property
8:11 - Spousal rape criminalized (1983)
8:24 - Consent enters the Canadian Criminal Code (1992)
9:17 - Rape shield laws (1992)
9:55 - Why the system moves so slowly
10:32 - Reactionary periods and stalled progress
11:41 - Revenge porn and deepfakes
12:38 - "Consent is like a cup of tea" metaphor and stealthing
13:43 - Life after #MeToo
All sources, statistics, multimedia clips, and music credits are available on Substack.
Disclaimer: This podcast explores sexual violence and the court process surrounding it. Please listen with this in mind, and be kind to yourself. We have resources in the show notes.
Jane Aster Roe: Amanda Nguyen, civil rights activist and Nobel Peace Prize nominee.
Amanda Nguyen: "People ask me, well, why the system is so broken, and the honest answer to that is that the law has a gender and that gender isn't female."
Jane Aster Roe: Sandy Garossino, former prosecutor and journalist.
Sandy Garossino: "We're using it because we've always used it. To a certain extent I feel like we should be throwing the whole thing out and starting again..."
Jane Aster Roe: Cait Alexander, survivor and activist.
Cait Alexander: I'm calling it an injustice system because that's what it is.
Jane Aster Roe: Okay. We've spent four episodes dissecting the minutia of how and why our current legal system doesn't work for victims of sexual assault. We understand how hard it is to prove guilt; the biases working against victims, we understand the process of getting from accusation to trial.
But if you remember, way back in episode 1, I said this:
"This is not a broken system. Because it has never worked. The justice system is working exactly as it was intended to... which is why victims walk away feeling so traumatized."
Jane Aster Roe: So why has it never worked? How did we get here? Because if we're going to move forward we should probably know where we're moving from.
That's right everyone. It's time for a record scratch rewind.
Jane Aster Roe: My name is Jane Aster Roe. You're listening to The Defendants, an exploration of justice for victims of sexual violence. We want to know what has to change within the system for it to actually work, and we are interrogating what justice means in the aftermath of trauma.
This is Episode 5: Record Scratch Rewind, where we're going backwards so we can map our way forwards.
There are many systems of law, but we are going to focus on the system that's used by most of Canada and the US: the common law system.
The common law system is a legal structure based largely around precedent. Judges and lawyers look at how past legal actors made decisions and that informs their decisions.
We use the common law system because it's the system that the British colonial authorities used when settling in Canada and the US, and it's very complicated to change a legal system once it's entrenched in society.
Fun fact: that's why the province of Quebec uses the civil law system, because a lot of Europe uses it, and Quebec was colonized by France.
In future episodes we'll look at other systems of law like the civil system (not to be confused with civil litigation), along with systems of Indigenous justice to see how they handle sexual assault cases... but today is all about looking at how we got here. In this system.
So we're focusing mainly on English colonial history.
Okay? Makes sense? Cool.
This history lesson will be brief and simplified.
So, humans have always disagreed and have always harmed each other.
Obviously.
But before we had formal court systems these issues were mainly handled by patriarchs (meaning the male heads of households) and landowners, sometimes climbing up the ladder of status to lords and monarchs depending on the situation.
Voice Actor: My lord! That cow was birthed on my farm, and therefore should belong to me!
Jane Aster Roe: As countries get bigger, it just makes sense to create officials who are in charge of settling these disputes and official channels to do so.
As these officials start to make decisions on these disagreements it makes sense to write down why and how they made their decisions and that's how we start to get what we call case precedents.
Voice Actor: But sir, when we decided that case between the merchant and his apprentice we did it this way, so we must apply that to this case between the cobbler and his son.
Jane Aster Roe: The system builds out from here, and we get lawyers and judges to argue and interpret precedents and laws.
But where do laws come from?
Well, laws come from the state, meaning the institution, whether it's a government or monarchy, that's in charge.
And the initial reason we create laws is because nobody wants to live in a purge-like society, where the only way to get recourse is through blood feuds and vigilante justice... where I wronged your family so you come and shoot me in the face, or to be slightly more period accurate: I wronged your family so you come after me with a knife or a sword. This is not only a chaotic way to live, but it also robs the state of some of its power.
In other words: the state wants to be the one in charge of settling all disputes and so having a formalized legal system is a helpful way to give the state centralized power.
Laws are future expectations for society.
We can expect not to be defrauded when we shop at our local stores because the store owner isn't allowed to defraud us... I mean, technically. You know, this is all in theory. But, again, this whole system is created by humans and humans are flawed, so the whole thing kinda has lots of kinks in it.
You've likely heard that famous quote: laws were made to be broken.
It's sort of true in a sense because precedent is rooted in history, and history is always moving, which means our laws are constantly evolving as we interpret and adjust to fit our most current understanding.
So, who is it doing all this foundational work of creating the systems?
The wealthy white men in England. And then the wealthy white men in America and Canada. And who are they really thinking about? Or, rather, who are they not thinking about?
Anyone who isn't them.
Jane Aster Roe: During this period when this legal system was getting up and running, women were the property of the male head of household, so when they appear in laws that's how they show up, and this continues for a while.
In court records in the 18th century looking at cases of rape, there are a lot of references to the woman having "lost her value" to her husband, father or brother because of the rape.
And it's viewed more as an injury to the man than it is to the woman herself.
And it gets worse: when we move over to America before the end of slavery, the viewing of Black women as property actually incentivized rape. A law in 1662 said that children of enslaved women and white men were not legally free, so any children resulting from rape were additions to slave owners.
It's pretty bleak stuff.
So now that we (hopefully) have a bit of a grasp on the origins of the common law system, let's take a look at how women's rights in regard to sexual assault within the law progressed.
Sometime in the 1600s in England, we get rape notated down as a bad thing... Around the same time, France makes history by notating that women experience distress in the aftermath of rape.
1861 in America sees Black women being allowed to file rape charges against white men... and shortly after, the age of consent is raised from 10 to 14 in both Canada and the US.
After that, things stay relatively stagnant until after women get the right to vote in Canada and the US, which is right around World War One, just over a hundred years ago.
That starts the push of activism furthering the idea that women are fully autonomous humans separate from the men in their lives.
This leads to 1974, when women in the US are finally allowed to open bank accounts without a male relation or husband.
The 80s are when we start to get changes in our sexual assault laws.
In 1983, Canada recognizes that a husband can rape his wife, and criminalizes it. Several US states are doing so as well, and in 1993 all 50 states recognize spousal rape.
The word consent comes into the Canadian Criminal Code in 1992. This is a huge milestone because it flips the default in regard to sex acts. Now sex is defined as something that has to be welcomed instead of something that is assumed to be welcomed as the baseline.
The Canadian Criminal Code circa 1992 reads as follows:
Voice Actor: Consent must be present at the time the sexual activity in question takes place. The question of whether no consent is obtained under subsection 265 or subsection 2 or 3 is a question of the law. The next section defines when no consent is obtained.
Jane Aster Roe: This will later be updated to define consent as a voluntary agreement, and to say that consent can be withdrawn at any time. It's worth noting that Canada's law is considered to be one of the most progressive laws on the books due to its definition and inclusion of consent language.
But back to our timeline.
1992 also brings the provision of rape shield laws to Canada, with the United States following federally in 1994. Rape shield laws attempt to limit the ability for the defence to introduce evidence of a victim's sexual conduct that isn't relevant to the case at hand.
Sexual assault laws follow a similar pattern: changes in the law are a response to changes in culture, and this cultural shift started by recognizing women as full autonomous people.
As we can see through our trip through time, the justice system grinds very, very slowly. And it takes a lot of time to catch up with culture, and by the time it has caught up, culture has changed again.
Part of the reason the justice system moves so slowly is because, in a system that's based on case precedent, often a precedent will be set, and then challenged, and then sometimes it will be challenged again. It will usually take years for these cases to move through all those challenges to get a definitive ruling, and change the precedent.
Laws can move faster. Parliament or congress will use legislation to create changes (for example in the criminal code) that, while still taking time, can occur quicker than case precedent is set. Of course, the courts still interpret that legislation, so either way... there's a delay.
Of course, it's worth noting that when society undergoes any big change or shift there is almost always a reactionary period where some of the progress is undone.
Audio Clip: "Free our sisters free ourselves! Free our sisters free ourselves!"
Audio Clip: "A threat that is just as dangerous and even more insidious. The threat of the women's liberation movement."
Jane Aster Roe: This is why not much happened between women getting the right to vote in the 1910s and the explosion of sexual assault laws in the 1980s: a huge wave of reactionary politics that lasted close to 60 years. Which is a lifetime for a lot of women.
It's not like there wasn't activism during this period.
There was the housewife revolution in the 50s and 60s, and the women's liberation movement in the 70s, but it took all of that built up over decades for change.
We're in a reactionary period right now in the aftermath of Me Too.
Some of the ways it shows up is in incel and trad wife culture. Progress of any social issue always has to contend with these periods of ebbs and flows.
Technology is a common driver of cultural change. The rise of the smartphone and the internet has come with new ways to terrorize. We've had to respond by writing laws to try to keep up with technology.
Revenge porn, which is the sharing of intimate naked photos to other people, became illegal in Canada in December of 2014, with England following in 2015 and Scotland and Northern Ireland in 2016. Currently it's illegal in 34 US states.
A huge problem right now is deepfake porn, which is where a real person's face is on an AI-generated body. As of recording this episode, in November 2025, the criminal code doesn't explicitly list this as a crime, and so the legal system as a whole doesn't have a way to deal with it.
I'm dating our episode here because things in regard to technology are changing very quickly in the grand scheme of things, and people are advocating strongly for there to be legal changes to deal with these sorts of acts.
On a positive note, the internet gave us spaces for conversation. And that included conversations about consent.
Audio Clip: "If you're still struggling with consent, just imagine that instead of initiating sex, you're making them a cup of tea. You say, hey, would you like a cup of tea? And they go, oh my god, I would love a cup of tea! Thank you! Then you know they want a cup of tea. If you say, hey, would you like a cup of tea? And they're like, uhhh, I'm not really sure. Then you could make them a cup of tea, or not, but be aware they might not drink it. And if they don't drink it, and this is important part, don't make them drink it."
Jane Aster Roe: That video was shared widely at schools and universities across Canada and the States. Other conversations around this time included conversations about consent around the circumstances of sex. Lying about your identity, your sexual health, and the act of stealthing all play into informed consent.
Stealthing - removing a condom during sex without telling your partner - was ruled illegal in Canada in 2022, after a woman went to the police and realized there wasn't a law on the books to describe her experience.
...And then of course there was the Me Too movement.
Audio Clip: "The Me Too movement exploded one year ago today with the first accusations made against Hollywood mogul, Harvey Weinstein. Since then dozens of powerful men have faced accusations of sexual harassment and misconduct."
Jane Aster Roe: It can't be overstated what a huge cultural moment this was. It brought consent and sexual violence to the forefront of cultural conversations by utilizing social media to amplify stories of victims of sexual violence. It also allowed some legislation to be passed, like the aforementioned stealthing laws.
Canada's biggest response to the movement was a legislation requiring judges to go through training to better understand how social context and sexual assault interact... This means teaching judges about rape myths and systemic discrimination. Though, if that education is going to make a difference in rulings, we haven't seen it reflected in the statistics as of 2025.
So that's where we are. That's a speed run of how we got here. To a system that is better than it was in the 1600s. Better than it was in the 1900s. Better even than it was in 2018... But most victims still find it incapable of delivering satisfying results.
The justice system is supposed to be the system of the people, our system.
The good news is that over the long course of history it does bend towards the better...
But as history ebbs and flows, you may find yourself at the beginning of a change, putting all your weight against moving the arc of progress, and never live to see the results of your labor.
I think it's still worth it.
When people demand that the system work for them, it does, eventually over time, tend to respond.
Jane Aster Roe: You've been listening to The Defendants, an Aster Roe Production. It's executive produced by me, Jane Aster Roe, Rachel Arundel and Katie Jensen. Our Story Producer is Jessica Strachan. Editing and sound design by the incomparable Isis Madrid and Katie Jensen. Our research producer is Charlotte Gregg, our fact checker is Rachel Bromberg and our mental health consultant is Michelle Crossman. Lindsey Keene is our outreach coordinator. Dawson Fleming is our production assistant. The voice actor featured in today's episode was Dawson Fleming. Special thanks to Annette Studios and Vanessa Zoltan. We explored a lot of information in this episode. All our sources are in the show notes. It's also there that you will find resources and organizations that offer support. Thank you for listening.