This publication describes how the current legal doctrine "discounts" the seriousness of male sexual violence against women and children.

An empirical perspective is presented illustrating the application of the principles and methods of community psychology for conceptualizing the ideal of "social justice." The substantiative content of the paper is based on an analysis of the selective nature of sexual assaults which reach the criminal justice system, and in the disparity of sentences given to those found guilty, in comparison to other types of cases. These outcomes are proposed as operational definitions for conceptualizing the ideal of social justice. The application of this standard for cases of sexual assault suggests the justice system "discounts" the seriousness of these offenses, resulting in a legal doctrine which excuses male violence against women. Implications for law reform are proposed based on the need for an accommodation of the social/psychological concept of "difference" in the legal definition of sexual assault, and in the greater use of evaluation research as a process of legal scholarship for monitoring how well the ideal of social justice is achieved by the criminal justice system.

One purpose of the present paper is to highlight the value of using a community psychology framework for conceptualizing important social issues that adversely affect the human condition, and of the responsibility of psychologists to address these issues through empirical scholarship. The methodological perspective which follows is based on a research program that began over a decade ago and now includes three principal data sources: The first is based on the records of an agency which provides services for victims of sexual assault. This data, supplemented by two national victimization surveys (Solicitor General of Canada, 1983, 1984; and Statistics Canada, 1993), provide the best available description of the true nature and frequency of incidents of sexual assault. The second source, the court records, provides a formal account of the outcome of the criminal justice process. The third data source, comprised of transcripts of court cases, provides a qualitative reference point that ensures that the quantitative analyses of the court records are capturing the essential aspects of actual courtroom dynamics, i.e., that the statistical analysis has ecological validity.
 

Two of the three methodologies have been previously described in the literature and will not be re-described in detail here. Briefly, the case data now includes 2,533 consecutive cases responded to by a sexual assault service. (For methodological details see Renner & Wackett, 1987; Renner, Wackett & Ganderton, 1988 for previous reports based on the initial 1,236 cases.) The court record data now includes a run of 1,074 consecutive court cases tried in the same city, composed of sexual assaults (n=354), and, for comparative purposes, physical assaults (n=513) and robberies (n=207). (For methodological details see Yurchesyn, Keith & Renner, 1992; Renner & Yurchesyn, 1994 for previous reports based on the initial 356 cases of the now larger sample.) These two expanded data sources have been supplemented by a sample of 104 transcripts of 51 adult and 53 child sexual assault cases from the court records data files. This third data source was the primary basis of the qualitative propositions to be advanced and evaluated in this paper.³
 

These three data sources converge to provide a descriptive account of how the crime of sexual assault on women and children by men is addressed by the formal legal doctrines which have been put into place by the criminal justice system. Our research does not address the frequency or nature of sexual offenses by women against men or children. Thus, the second purpose of this paper is to examine how cases of male sexual violence are handled by the criminal justice system from the perspective of whether the standard of "social justice" is being met. Social justice is the ideal of seeking the truth in an effort to provide fair and just outcomes through the criminal justice process (Renner & Warner, 1981). This "social" goal may be distinguished from a legal goal of "technical" justice which requires that uniform standards and procedures be used (Warner & Renner, 1981). The former represents the "ends" and the latter the "means" of the justice system. It is not enough that laws, procedures, and doctrines are uniformly administered, they must also achieve the purposes for which they were intended. Ultimately, the actual outcomes are the standards against which the fairness of laws and legal doctrines must be evaluated.
 

There are two processes within the justice system that may actually work against achieving social justice; these are selectivity and disparity. Consideration of both is essential in order to evaluate how closely the justice system approaches the ideal of social justice. Both will be described in general terms and then illustrated by the specific way they manifest themselves in cases of sexual assault.
 

Selectivity
 

The former Law Reform Commission of Canada (1976) wrote in the initial statement of its objectives that although it is equally unlawful for a rich man as a poor man to sleep under a bridge at night, the burden of the law falls differentially on the poor. When the impact of a uniform application of a law guarantees that sanctions for breaking the law fall selectively on members of a particular social class, such as the poor, the uniform application of the law itself becomes a source of injustice.
 

As two national studies have shown, selectivity also operates in cases of sexual assault. The Statistics Canada Victimization Survey (1993) found that more than one in three adult women have been sexually assaulted since the age of 16, and that 94% of these cases never come to the attention of the criminal justice system; of the 6% that are reported to authorities, only 40% are charged; of those charged, two-thirds are convicted, and one-half of those are never incarcerated. These figures are based on extensive interviews with 12,300 women over 18 years of age. An earlier study by the Solicitor General of Canada (1983, 1984) also found that sexual assaults often go unreported to the police. These findings of a high incidence rate and a low official count in the criminal justice system are remarkable, because identification of the perpetrator is seldom an issue in sexual assault cases, as it is in most other common crimes, such as break and enter, robbery, and theft. Individuals who commit acts of sexual assault are usually known by their victims (Roberts & Grossman, 1994). Further, the 2% of the cases which go to trial, and the less than 1% who are sent to jail, are a highly selected group. Within this group, cases with violence and injury are over-represented, while cases involving the use of simple physical force by dates and acquaintances are vastly under-represented (Yurchesyn, et al., 1992).
 

One implication of this selectivity is a misrepresentation of the true nature of sexual assault. This, in turn, contributes to the popularly held misconception that sexual assaults must necessarily include violence and physical harm to the victim. These expectations, along with other myths and stereotypes about what constitutes a legitimate sexual assault, such as the belief that only a recent complaints is credible, contributes to the self-blame, lack of support, low reporting, and low conviction rates experienced by most victims (Renner, et al., 1988; Solicitor General of Canada, 1984). Not surprisingly, cases which lack injury and violence often fail to come to the immediate attention of medical and law enforcement agencies. At issue is whether the selectivity which takes place between official criminal justice records of sexual assault, and the actual experiences of victims of sexual assault, is fair, or whether it is a source of injustice.
 

Disparity
 

Disparity refers to the differential ways cases are treated once they are selected into the criminal justice system. The concept of fairness in the justice system requires that there should be equality, not disparity, in the way similar cases are treated.
 

The fundamental assumption of the justice system is that punishment should be proportional to the seriousness of the offense, with seriousness defined by the harm done and the need for protection of the public against future acts (Canadian Sentencing Commission, 1987). However, to hold equality as the ideal for sentencing does not imply that there should be simple uniformity in sentencing. Uniformity itself can be a source of injustice, as already illustrated by the uniform application of a law against sleeping under a bridge. A similar situation arises with sentencing. A situation in which a destitute parent steals a bottle of pills for a sick child is not regarded as equally harmful or dangerous as a long-time addict stealing the same bottle of pills on which to get high (Canadian Sentencing Commission, 1987).
 

When comparing the outcome of cases, there is relatively little variance associated with the verdict. Most cases which come to trial are found guilty simply because cases with a low probability of conviction never come to trial (Warner & Renner, 1981). Thus, it is the severity of the sentence given to those deemed to be guilty where there is the most room for judicial discretion and where the degree of disparity across cases is greatest (Roberts, 1990a). It is this disparity which requires analysis and critical examination. In Canada, the task is made more difficult since sentencing statistics are not compiled at the national level (Department of Justice, 1990), although sentencing data on sexual assaults from specific locations have been collected.
 

Various disparities in sentencing arise in cases of sexual assault (Roberts, 1990a; Renner & Yurchesyn, 1994). Individuals convicted of sexual assault receive less severe sentences than those who commit robbery, but more severe sentences than those convicted of physically assaulting someone. Perpetrators of sexual abuse against children are punished less severely than are those found guilty of sexual assault against an adult. These forms of disparity, based on explicit comparisons with other types of offenses have led to popular criticisms of the sentencing process, often by women's advocacy groups and the media (e.g., "Judge gives rapist 90-day sentence served on weekends", Roberts, 1990a). At issue for this paper is whether the disparities in the sentencing of sexual assault cases are fair, or are themselves a source of injustice.
 

Justice as an Ideal
 

Thus, social justice is a complex social concept. There must be a rationale to account for any selectivity or disparity that exists. The rationale must elucidate how a greater level (i.e., higher order) of fairness and justice is achieved through the selectivity or the disparity. These rationales rest on social values and social philosophy which, as social concepts, must gain credibility through their application in actual cases. In operational terms, it is the outcome of court cases which provides the empirical data for evaluating whether the observable irregularities of selectivity and disparity have coherence and serve the end of greater justice.
 

It is in this sense that every criminal justice case is also a "social experiment" which tests the veracity of the justice process. An analysis of these cases can enhance our collective civic life by factually illustrating how our existing concepts of social justice are applied, and by identifying the limitations which still require refinement. Applying the standard of social justice as a research process is an undertaking for which the methodology of evaluation research from community psychology is well suited. The fact that laws and legal precedents are the tools of justice, not the justice itself, puts the issue of accountability just as much in the area of empirical evaluation of outcomes as in jurisprudence or case law. The creation of our three data sources provides the basis for an empirical evaluation of social justice as an ideal.
 

The analysis of these three data sources provides the basis for examining "selectivity" and "disparity" with respect to sexual assault. The purpose of this descriptive statistical analysis is to develop a standard of accountability through evaluation research for determining the degree to which the ideal of social justice is approached. From a conceptual perspective, any actual short fall from the ideal provides a quantitative foundation on which to base subsequent law reform. The evolution of democratic civic progress depends on a continual process of evaluation, and of re-definition and re-thinking.
 

Selectivity
 

The 2,533 case records from the crisis centre were compared to the 354 sexua1 assault cases from the court records. The findings show that the cases of sexual assault which get into the criminal justice system are highly selected, but on different dimensions for adults and children. Specifically:
 

In adult cases, those with violence and injury are disproportionately selected into the criminal justice process. According to the records of the crisis centre, the typical offender is a known acquaintance, and 92% of the time the assault involves the use of physical restraint without a weapon. In these instances, women submit to the physical force and the demand for sex, choosing not to be otherwise harmed or injured. However, in the cases which appeared before the courts, the opposite was true; only 18% of the cases were similar to the typical case from the sexual assault service in which there was neither injury, the use of a weapon, nor serious harm. In 82% of the court cases at least one of these features was present. Clearly, the "typical" incident of sexual assault does not receive an equal frequency of legal redress.
 

In cases of sexual abuse against children, the records of the sexual assault service indicate that 77% of the abuse is perpetrated by a family member and that in 80% of the cases the abuse takes place in the child's own home. Yet, in the court cases, it is abuse by strangers (5%) and acquaintances such as family friends and caretakers (58%) which disproportionately find their way into the criminal process, with the most frequent location outside the victim's own home (64%).
 

Only the cases officially reported receive media coverage. For child cases, this has the effect of minimizing public awareness of the overwhelming degree to which children are mostly at risk for sexual abuse in their own home by their own family members. For adult cases, it has the effect of contributing to the myth that a "real" sexual assault is one that involves violence and injury to the victim. As a result, many adult women who choose not to resist in order to avoid injury in a sexual assault feel self-blame and guilt, and are blamed by others (Renner, et al., 1988).
 

Disparities Between Sexual Assaults and Other Offenses
 

The sentencing data from the expanded court records data file provides a common denominator for the comparison of different types of cases. As noted earlier, in the absence of national sentencing statistics (Department of Justice, 1990; Roberts & Grossman, 1994) this data represents essential new information not otherwise available. Presumably, it is the unique features of the cases which provide the rationale for the differences in sentence. Embedded within sentencing variations are the implicit values and assumptions of the system.⁴ A comparison between the cases of sexual abuse against children and sexual assault of adults show wide variation within each, between the two, and with other types of offenses.
 

Variations Between Adult Sexual Assault and Child Sexual Abuse. Men convicted of sexual abuse against children receive lighter sentences than men convicted of sexual assault against adult women. At the harsh end of the severity scale, only 13% of child offenders received a sentence of 2 years or more in contrast to 30% of offenders of sexual assault against an adult woman. At the lenient end of the scale, 61% of those convicted of child sexual abuse received less than one year in jail compared to 44% of those convicted for adult sexual assault; an equal proportion of perpetrators in adult and child cases (26%) received a sentence from 1 to 2 years. In order to evaluate these discrepancies it is necessary to examine three categories in which there were differences between child and adult cases (see Table 1):
 

(1) The circumstances of the case. When the victim is a child there is far less violence, less often the use of a weapon, seldom any physical injury, the sexual contact is less intrusive, the child offers less resistance than adults, and alcohol is less likely to be a factor at the time of the assault.
 

(2) The legal process. In child cases, the accused pleads guilty more often, there is less medical evidence, fewer crown witnesses, fewer court exhibits, and there is less likely to be supporting police testimony at the trial.
 

(3) The characteristics of the offender. In contrast to sexual assaults against women, in the child cases the accused is older, less likely to have a criminal record, more likely to be married, less likely to have a history of substance abuse, and in addition, the offender is more likely a family member or a well known person rather than a casual acquaintance or stranger.

All of the factors in these three categories influence the way the courts punish offenders in sexual assault cases. The implicit set of values appears to be that upstanding individuals, without a previous record, with no visible external physical harm to a victim, are not treated as harshly by the courts. Cases with these characteristics are most likely to involve child sexual abuse, thus accounting for the less severe sentences given in those cases. The standard of social justice requires that these observed disparities in the severity of the sentence between the two categories of sexual assaults must be consistent with the achievement of a greater degree of fairness in the legal treatment of sexual assault cases.
 

Variations Within Child Cases. The qualitative analysis of the court transcripts contributed greatly to our understanding of why child cases were characterized by higher levels of guilty pleas and light sentences relative to adult sexual assaults. The propositions drawn from the qualitative analysis must be considered tentative, as quantitative confirmation of our conclusions will require a larger sample of cases than were available to us. The statistics available from the court records, however, are consistent with our observations. The cases of child sexual abuse fall into three categories, each with a unique set of dynamics.
 

In cases where there is corroborative evidence from other sources, especially with young children, plea bargaining takes place; the accused changes his plea from not guilty to guilty before the trial. In these cases there is little publicity, the child does not have to testify, and the accused is given a light sentence, often with an agreement that he will seek treatment.
 

However, when the child is young and the circumstances are less clear, the case usually goes to trial and the child is portrayed on the witness stand by the defence as an unreliable witness due to the age of the child. The most common tactic for discrediting the testimony of young children is to ask questions about dates, times, places, and frequency which exceeds the developmental level of the child (Park & Renner, 1997). Young children simply have not yet developed the cognitive capacity to recall and describe events using numerical concepts requiring a ratio measurement scale (Levin & Simon, 1986). When discrepancies are elicited with testimony given months earlier to the police or at the preliminary hearing, the defence ends the line of cross examination with some variation of: "You said before he had you put your mouth on his penis 5, not 25 times! Did you lie then, or are you lying now?" The argument is then made by the defence that the child is an unreliable witness and can not be believed beyond a reasonable doubt.
 

This is a formal courtroom tactic known as "impeachment," and we observed it repeatedly in the transcripts despite the fact that the questions asked of the child are developmentally inappropriate. Modern psychological research show that the memory process matures early and young children are able to retain accurate memories of characters and events. Therefore, young children posses the skills needed to describe events, especially when asked simple question in a supportive atmosphere that correspond to the child's developmental level (Fivush & Hammond, 1990; Flin, Boon, Knox & Bull, 1992; Hammond & Fivush, 1991; Peterson, 1996).
 

Finally, when the witness (i.e., victim) is a teenager with a "bad" conduct report, the case will almost always go to trial and the defence tactic is a direct attack on the character of the victim, such as: "So you lied to your parents about where you were going that night! Isn't that a fact?" The implication is that if the a 15-year old lied then, they may also be lying about the alleged assault (as an excuse for being late). In this particular example, the line of questioning was effective, and the additional fact that a considerably older man drove a girl less than half his age to an isolated location was largely ignored. The defence contented that the accused had consent, reasonably believed the girl was over 16 years of age, and that she is a demonstrated liar whose testimony is not to be trusted.
 

The pervasiveness of the notion that resistance and injury are mandatory components of sexual assault, even in cases of child abuse, is evidenced in the transcripts by the fact that both the crown and the defence use the presence or absence of these factors to argue their case. In the transcripts of the child abuse cases, 77% of the children were asked questions about resistance, and 89% questions about recency of complaint (even though recency is no longer a legal requirement as it once was for adult women under the old rape laws). The reasoning behind asking such questions is to be able to suggest to the judge or jury that if there had been sexual activity, surely a good child would have resisted or reported. And, 94% were interrogated about their character as a way to cast doubt on the credibility of their testimony (even young children are not exempt from these questions in such forms as "You don't get along with you brother, do you?"). These tactics take place despite the fact that it is the legal responsibility of an adult not to have sexual contact with children, no matter what the circumstance. These standard courtroom procedures have the paradoxical effect of treating a child as responsible for her sexuality, but as incapable of giving responsible testimony due to age or character.
 

Variations Within Adult Cases. For adult sexual assault cases, high levels of violence are related to both trial outcome and to the severity of sentence. When verbal threat or physical force alone is used there is a 50% rate of conviction, and 8% of those convicted will receive sentences of two years or more. In those cases where injury occurs or a weapon is used the conviction rate increases to 66% and 35% receive sentences of two years or more. These figures increase to 92% and 40% when the woman's life was endangered or serious harm resulted. Thus, the same factors which select adult sexual assault cases into the criminal justice system in the first place act further to increase the probability of conviction and the severity of punishment. Physical violence is the primary factor which determines the severity with which the court treats adult sexual assaults.
 

Variations Between Sexual Assault and Other Offenses. Perpetrators of sexual assault against adults are generally sentenced less severely than are those convicted of robbery, even though in both types of cases there are similar amounts of violence and victim injury. Yet, offenders guilty of sexual assault of adults are generally sentenced more severely than are those of guilty of physical assault, despite the fact than in the physical assault cases there is greater incidence of violence, more victim injury, and more frequent use of weapons. Thus, the disparities in sentencing between the three types of offenses are not accounted for simply by the violence dimension. Three additional factors must be considered: The characteristics of the offender, the relationship between the victim and the offender, and the sex of the victim (see Table 2).

In robbery cases, unlike both sexual and physical assaults, the offender is often young, single, unemployed and has a previous criminal record. Robbery is an economic crime and seldom is there a previous relationship between the victim and the offender. Thus, robberies are treated as the most serious because of the characteristics of the offense (it is seen as harmful), the offender (who is seen as of bad character) and the lack of a relationship (the victim did not precipitate the event). Physical assaults are not treated as seriously because the typical offender has more desirable characteristics than robbers, and because a relationship often exits between the victim and the offender. As a result, the seriousness of the harm is minimized and both parties are held accountable.
 

In both physical assault cases and robbery cases the typical victims are men, however in sexual assault cases the victims are almost exclusively women. Paradoxically, if a woman acts like a robbery victim (she relinquishes sex similar to the way a robbery victim relinquishes money to avoid injury) the court treats her like a physical assault victim (i.e., the relationship consideration prevails and she is held partially responsible for the assault similar to the way two males are treated who get into a fight with each other). But, if the woman resists and is injured and there are acts of violence (she looks like a physical assault victim), the court treats her like a robbery victim (the harm consideration prevails) and is harsh with the offender (see also, Renner & Yurchesyn, 1994).
 

The standard of social justice requires that the legal doctrine underlying legislation designed to protect women and children against sexual exploitation by men actually does so. It would be a failure in social justice if the doctrine itself was actually contributing to the problem for which it was intended to be the official recourse. The empirical evaluation of the actual outcomes of cases of sexual assault suggests that the legal doctrine may, in fact, be one source of the problem.
 

In cases of sexual assault, the criterion of "seriousness of the offense" is operationally defined by legal outcomes. By definition, serious offenses are those for which the sentence is more severe. Of particular concern is whether the factors which influence selectivity and sentencing are confounded with fundamental differences between the intrinsic nature of sexual assault and the nature of other criminal offenses. At issue is whether selectivity of cases and the disparity in sentencing are based on these intrinsic differences and therefore have the unintended side-effects of discounting the nature of women's and children's experiences to their relative disadvantage in front of the law.
 

Legal "Discounting"
 

When a legal procedure is applied in a uniform way, but has a differential effect on an identifiable group of individuals, such that it provides them less protection or reduces their access to the legal process, the force of that sanction is discounted. When a sanction is discounted, the offender who would otherwise bear the full burden of the legal doctrine has its impact reduced. In the case of sexual assault this would mean that the legal doctrines for protecting women and children actually protects, or to some degree shields, those who commit the assault.
 

Discounting "Relationship". The law has never taken seriously male physical assault against another man when the "relationship" between them is based on masculine domination that arises out of a context of competition, power and control. Thus, physical assaults, which are predominately between men, have always been second only to rape (under the old rape laws) as the least punished offense (Renner & Sahjpaul, 1986, Roberts, 1990b).
 

In both sexual and physical assault, the issue of relationship is the central theme. However, there is a fundamental difference between the types of relationships present in physical and sexual assault situations. There is considerable social pressure for men and women alike to seek out social situations where acquaintanceships may be formed. Such is the fundamental nature of heterosexual relationships and the mating ritual. To discount the seriousness of a sexual assault when there is such a social "relationship" between the parties, much as it is done for physical assaults involving men who are attempting to dominate each other, is to fundamentally distort the nature of normal heterosexual situations.
 

Redefining rape as sexual assault, as was done in 1983, applied to sexual assault a framework common to male relationships that is fundamentally ill suited for social relationships between men and women. The manly art of jousting, fighting, and duelling as a way for men to settle matters has a long tradition of minimal external legal interference. Mild versions of these activities are not only actually allowed, but even encouraged; perhaps illustrated best by the role played by the domination of an opponent in popular sports. The purpose of this paper is not to argue the merits of minimum legal interference in cases of violence between men who try to dominate one another in a competitive relationship. Rather, we suggest that this standard for "acceptable" aggression is simply not applicable to heterosexual social relationships if social justice is to be served.
 

Discounting "Harm". Sentences are most severe when serious harm is done by a stranger to another person. Any robbery that involves needless injury to the victim or even has the potential to do so by virtue of the use of a weapon, and any physical assault that inflicts crippling injury, beyond the victory of establishing domination, is treated harshly by the courts. In these cases, blood, broken bones and a threat to life is how harm is translated into severity of sentence (Canadian Sentencing Commission, 1987).
 

As our data shows, these features are not present in most cases of sexual assault. In cases of sexual abuse against children, the perpetrator is usually an adult who is abusing authority and care-giving responsibilities but refrains from violence. And, in cases of sexual assault, injury rarely occurs because most adult women are not in any position to fight, and are counselled by the police not to do so, when the outcome is a forgone conclusion. Usually, it is the man who has the greatest strength and the psychological capacity to inflict physical harm. Most women and children act like sensible robbery victims by choosing not be injured in addition to being sexually violated. Yet, unless a victim of sexual aggression looks like a victim of physical assault, the severity is discounted as not real harm.
 

This single narrow standard of harm as physical injury is perhaps appropriate for some kinds of offenses. But it is simply not a dimension that characterizes most sexual abuse of children by adults. The harm will be on the sense of self, by making a sexual being of a child long before the mental, emotional, and physical elements essential for sexual intimacy have had time to develop. For adult women, the loss of freedom of movement or confidence in her ability to make good judgements of when to trust men are extremely harmful. The clinical literature on the short- and long-term effects of sexual abuse and sexual assault has long ago made abundantly clear that sexual assault is no less harmful, and may be far more harmful, than physical injury (e.g., Burgess & Holmstrom, 1985; Finkelhor, 1990). These hidden harms simply can not be seen on an X-ray as in cases of physical assault, but must be seen in other ways. The actual harm that women and children experience, although hidden and internal, is no less real; yet, it is discounted by current standards of sentencing severity.
 

Discounting "Danger". One of the primary purposes of sentences is protection of the public. Offenders who are judged dangerous and likely to re-offend are sent to jail for longer periods of time, reflecting the philosophy that sentences should be "proportional" to the gravity of the offense (Canadian Sentencing Commission, 1987). As our data from the court records makes clear, young "punks," with past records, who have no jobs are incarcerated at the highest rate. In contrast, people with no records, who have stable family and social relationships, and are employed are more often given a second chance by the courts; this same pattern has also been found for criminal offenses in general (Renner & Warner, 1981; Warner & Renner, 1981). For these "normal" individuals, the ordeal of coming to trial is often seen to be sufficient punishment. But, as our data demonstrates, it is these typical, gentle, ordinary men who date women and protect children who are committing sexual assault and abuse.
 

Robberies, thefts, and break and enters are crimes committed by people who need money. These economic offenses are almost always reported and eventually there is some chance to catch the offender. Sexual assaults are seldom reported, and a perpetrator has many opportunities to continue offending, often over a long period of time. The danger that women and children experience is discounted; they are far less likely than men to be robbed, and far more likely to be victimized by the "common" men they encounter while acting in accordance with expected cultural values of dependency as children and while pursuing affection, romance and love as adult women.
 

Sexual Assault and Legal Doctrine
 

Sexual assault is a unique offense. Its victims are almost exclusively women and children and the offenders are almost exclusively men. Sexual assault is the least likely offense other than homicide to be committed by a stranger; like murder, sexual assault is most frequently perpetrated by someone acquainted with the victim (Roberts & Grossman, 1992). Thus, the identity of the sexual offender is seldom in question. Yet, the typical (i.e., most frequent) cases are selectively screened out of the criminal justice system at a high rate. The few sexual assault cases that remain are then processed through the same filter for a second time at the trial level with clear disparities in sentences for these crimes in contrast to other offenses. This failure of the system is the result of not defining "seriousness" independently of the inherent characteristics of the offense.
 

When the definition of seriousness is confounded with the nature of the offense, as it is for sexual assaults, the outcome in practice is to excuse the types of crimes that men commit against women and children. This does not mean that blatant acts of sexual assault are not punished, clearly they are. But, the day-to-day practical effects of the legal doctrines that exist to protect women and children against male aggression operate to minimize the use of the system for redress, and to minimize the impact of the process when it is used. Because the legal sanctions for sexual exploitation are diluted, men are the principal beneficiaries of the legal doctrines designed to protect women and children against the clear and common danger of sexual assault.
 

Fairness is the goal of social justice. A simple concept of "identical" has long been recognized as insufficient, as illustrated previously by the implicit inequality in the presumably equally applied law which makes it unlawful for a rich man or a poor man to sleep under a bridge at night. Higher order levels of conceptualization, ones that elevate the philosophical meaning of fairness beyond a narrow "technical" sense, are required to provide an explicit rationale for when selectivity of cases and disparity of sentence contribute to greater not lesser justice. Humanistic progress is distinguished by such conceptual "inventions." As an example, it took years of conflict between labour and management forces to establish occupational health and safety standards to embody the higher order concept of "human rights." Today, it seems obvious that the principle of "not killing yourself working in order not to starve to death" is a higher order social value than "management rights." Likewise, with sexual assault, there is a need to find a way to remedy the contradiction that exists between social and technical justice. A clear suggestion for how sexual assault can be re-conceptualized can be found in the evolution of our thinking about employment equity and the resulting legal doctrine.
 

Difference
 

The concept of difference may seem at first to be a contradiction of equality, but it is not. Rather, the sole reliance on equality as "identical" as the highest standard of justice has the effect of ignoring genuine differences (Bem, 1994). As a result, the very problem the legal doctrine was intended to resolve is, in fact, exacerbated in some instances. Recognizing differences resolves the paradox by reconciling the social concept of justice with the reality of the natural order, thus achieving a greater truth. This process can be illustrated through concepts of employment equity. It is also possible to apply the same logic to the issue of the legal doctrine regarding sexual assault.
 

Example from Employment Equity. The attempt to encode employment equity into the law began by defining employment discrimination as prejudice or bias by an individual. The response was to make such actions by individuals illegal in order to achieve racial and gender equality. However, evil intentions were hard to prove, and easy to hide; for example, blacks and women who in the past might have been rejected outright, now might be interviewed by employers, but would rarely be judged best qualified for the job.
 

To move beyond the appearance of equity, the law next incorporated an objective standard prohibiting differential treatment. Using these guidelines, hiring or promotion was supposed to be done on the basis of these standards which would be uniformly applied to all candidates in a visible way. But, technical uniformity does not necessarily ensure fairness. For example, a strength, height and weight requirement can be uniformly applied which would effectively screen on the basis of gender, given that these are the natural physical dimensions which often separate men from women.
 

The next stage in the evolution of conceptualizing employment equity was to use empirically based criterion and the results of actual hiring decisions as the standard. For example, equity requires that genuine differences between men and women be made irrelevant to the employers' decision making process in situations where the physical characteristics do not determine the ability to do the job effectively. Among the consequences of requiring empirically established criterion, and actual hiring decisions as the standard, was an increase in the numbers of female police officers.
 

Accommodation of Difference as a Requirement for Equity. The current stage in the continuing evolution of the concept of employment equity is the acknowledgement that there are many real differences associated with different categories and types of people. Men and women are not identical in all respects. Race and cultures are different from each other. These differences in biology and socialization can place a dominant group at an advantage over another group if the dominant group controls the structure or "doctrine." If school learning is to be didactic, white students will be advantaged over aboriginal students who have a cultural tradition of experiential learning. As a result, the typical didactic school curriculum will confer an apparent meritorious advantage on whites. In reality, a genuine difference unfairly excludes aboriginals from gaining the educational credentials that would confer on them the power to challenge the existing "doctrine" that denied the credentials in the first place.
 

The recognition that genuine differences can be a source of lack of equality has presented the newest challenge to achieving social justice; namely, that of tolerance and accommodation of difference (Bem, 1994). Meeting this challenge requires finding ways to identify and to acknowledge real differences when they exist, and to then to create a process so that the "doctrines" of the dominant group do not needlessly disadvantage others.
 

Differences Between Sexual Assaults and Other Types of Offenses
 

In the case of sexual assault, it is important to acknowledge and to identify how this crime is intrinsically different from other crimes. One such way is that it is usually women and children who are the victims and often men who are the offenders. The current legal doctrines operate to excuse and minimize acts of sexual assault by "discounting" those features of violence that are the most common to violence experienced by women and children. In this sense, the doctrine and suppositions of the law serve the interests of men over those of women and children.
 

Further, the very nature of a child's dependency, and of a woman's heterosexual activities, is the willingness to enter into a social relationship with a man. If the defining characteristics of these situations and circumstances are also those which are used to minimize the seriousness of sexual assaults, then the two are hopelessly confounded. Indeed, it can be argued, this confounding is a license for sexual aggression. The social nature of protection and affection, and the definition of the seriousness of a sexual offense, can be conceptually separated by acknowledging the intrinsic difference between sexual assault and other offenses such as physical assault and robbery, even though it may also require procedural adjustments of technical justice to ensure due process for the accused. There is no legal need to define harm, danger, and blame for all three offenses in the same way when there is overwhelming evidence to the contrary. A man's responsibilities for protecting children, and becoming a respectful social partner with a woman, is not the same relationship as the relationship that exists between Patrick Ewing and Shaq O'Neal negotiating space under the hoop.
 

In hind sight, the redefinition in 1983 of rape as "sexual assault" was probably not a very good idea. Perhaps "sexual robbery" may have been a more appropriate metaphor than was physical assault (Renner & Yurchesyn, 1994). In cases of robbery, there is no expectation that the individual must be injured in order to be seen as a legitimate victim. If we had retained the pre-1983 view of treating a women's sexuality as property, then adopting the metaphor of robbery might have improved the law to a greater extent than the switch to an assault framework. What was wrong with the old rape laws was not that a woman's sexuality was seen as property, but that it was treated as the primary element of her value to either her father as a marriageable daughter or to her husband as a wife (Clark & Lewis, 1977). The change to a robbery metaphor would have at least restored ownership of her own sexuality to the woman.
 

However, searching for yet another metaphor may be the very problem that has kept us from recognizing that sexual assault is, in fact, fundamentally different from other offenses. The more general indictment of the current criminal justice process is that the law and legal doctrines concerning sexual assault have acted as the principle systemic mechanisms for invalidating the experiences of women and children. Given this state of affairs, the traditional view of the legal system as neutral, objective and gender-blind is not defensible. Since the system is ineffective in protecting the rights of women and children, it is necessary to re-examine the existing doctrines which reflect the cultural and social limitations that have preserved dominant male interests at the expense of women and children.
 

At this general level, reform, debate and discussion must go beyond any specific changes in the law (e.g., switching to the metaphor of "sexual robbery"), to include a critical examination of the legal doctrine itself. To break the past cycle of ineffective reforms may require a form of re-definition which moves to a social science level of analysis, rather than one based solely on traditional legal scholarship; namely, one in which social justice is seen as an evolutionary process, similar to employment equity, based on empirical evaluation research.
 

A community psychology framework uses evaluation research as the primary empirical strategy. Each observation in community psychology is treated as similar to an observation in a traditional experiment. The observations in this case are naturally occurring, objectively measurable "real-world" events. Unlike traditional experimental psychology, where hypothetical constructs are operationalized as scores on contrived scales, community psychology utilizes real-life events to operationally define constructs. These constructs are woven together to create an explanatory theoretical conceptualization that can be tested and evaluated by the results of the observations. Social justice is an example of a theoretical ideal, resting in social values and, in western democratic states, brokerage through democratic political processes. The resulting laws and doctrines serve as the procedural tools for achieving the ideal. It must be emphasized that the tools and doctrines themselves do not embody justice, but are only the operational means for achieving justice.
 

The study of social justice as an empirical process requires joining together legal and social science scholarship. One requirement is for the laws and doctrines to be administered as they were intended; this is required for accomplishing "technical justice." A second requirement is to hold the actual practices (when done to the highest technical standards) accountable in terms of the ideal, and to use any short fall as the basis for further conceptual refinements; this is required for approaching the theoretical ideal of social justice. To hold the success of these achievements accountable to the standards of science is best done through the methodological framework of evaluation research.
 

Process based outcome research, illustrated by this paper, is one of the essential tools for achieving both technical justice and for instigating the political process of legal reform as a data-based change strategy. Accountability of institutional practices requires a continuous examination of outcomes and the processes responsible for them. This task must combine critical legal analysis and scholarship with empirical social science evaluation research in order to achieve greater social justice. Psychology perhaps has the unique capacity within the social sciences for bringing the power of empirical research to bear on the theoretical conceptualization of important social issues.
 

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1. Reprints may be obtained from Prof. Edward Renner, Evaluation Research, 14241 110th Terrace North, Largo, FL 33774, USA, erenner@kerenner.com.

2. Now at the University of Guelph.

3. A report based on the quantitative and qualitative analysis of these transcripts has not yet been published. We have completed a preliminary study (Park & Renner, 1997) in which we have developed an empirical scoring scheme for capturing the courtroom techniques used by both the crown and defence in child sexual abuse cases. Pre-publication copies of the working papers and the scoring manual are available on request.

4. The variations in sentencing also includes the random and idiosyncratic contribution due to individual judges. These variations are "noise" in our analysis, although these variations in themselves could be the basis for a separate study. Some judges have a reputation for being lenient and others harsh; lawyers manoeuvre to get or avoid certain judges (Renner & Warner, 1981). However, this is a separate issue which goes beyond the focus of the present paper.
 

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