Corps de l’article


Despite the efforts by feminists over the last four decades, the “typical” rape victim is still positioned as a young attractive female who is attacked by a stranger, motivated by sexual desire. This is compounded by the lack of feminist attention towards, and inclusion of, older women in research, campaigns and policies.[1]

This article considers, for the first time in Canadian legal scholarship, the criminal law’s treatment of the sexual assault of older women.[2] This work is influenced by, and builds on, our earlier scholarship regarding sexual assault against women with mental disabilities. In particular, our published research has examined: challenges in applying the legal doctrine of affirmative consent to women with mental disabilities;[3] problems with an “all or nothing” approach to incapacity to consent;[4] barriers created by particular evidentiary and procedural rules in the criminal trial process;[5] problems with the existing practice of cross-examination when applied to complainants with mental disabilities;[6] issues around competence to testify;[7] and the role of abuses of trust, power, and authority in determining non-consent.[8]

We wondered whether the insights we developed in this work would be useful for considering the legal response to the sexual assault of older women, who confront unique challenges in having sexual violence against them recognized through the criminal justice system.[9] Mental disability and age are, of course, overlapping categories. Some older women have dementia or other age-related conditions, while younger women with mental disabilities age and become older women. More generally, legal scholarship and the broader public discourse on sexual violence are almost silent about both of these groups of women, as if sex and sexual violence were not a part of their lives.

Of course, “older women” are not a homogenous group. Many older women do not experience any cognitive disability and yet may still be vulnerable to sexual violence as they face social marginalization for reasons related to disability, poverty, social isolation, and ageism, as well as sex inequality.[10] We thus sought to examine whether and how the criminal justice system is responding to such sexual violence and to identify the barriers to the effective prosecution of these cases. We also suspected that many of these cases might be entirely outside the sight of the criminal law and instead managed through other means. This article thus grapples with the difficult problem of how to identify and understand what is not there in terms of judicial decisions.[11]

We expected that many of the legal issues we had addressed in the context of women with mental disabilities—such as capacity to consent and competence to testify—would have particular relevance to the population of older women. Yet, our findings paint a somewhat different picture. By the time a very small sample of cases makes its way to court, older women do not typically face the legal and evidentiary barriers confronted by younger women, whether disabled or not. The greatest challenge appears to be in detecting and reporting the sexual violence against older women. It is difficult to determine how much this challenge can be attributed to women not disclosing the sexual violence to anyone (or not reporting it to the police) or whether women are reporting incidents of sexual violence to the police and the cases are not going forward. Since barriers to reporting are so high for this group of women, however, we suspect that non-reporting plays at least a significant explanatory role.

In this article, we seek to explore in the Canadian context what has been described as “one of the final taboos of modern life”[12]—sexual violence against older women—with a view to stimulating further legal research in this area. We argue that older women face greater barriers to reporting sexual assault than any other age group of women. We demonstrate that certain types of sexual assault against older women are virtually invisible in the case law. If one uses the case law as a guide to what is actually happening, one would assume that sexual assault against older women is overwhelmingly committed by strangers who break into a woman’s house late at night and sexually assault her, while committing serious acts of physical violence.[13]

Familial sexual assault, particularly spousal sexual assault, is virtually invisible in our case sample. In some respects, this picture of sexual assault resembles what one might have seen for younger women thirty years ago, before the women’s movement pushed for the recognition of sexual violence in intimate relationships.[14] In this article, we present our findings and begin to untangle the complex reasons for the limited representation of sexual assault against older women in the case law.

The article begins by outlining our theoretical perspective and conducting a review of the social science literature on sexual violence against older women, much of which is taken from the American and British contexts. We then present our findings from an extensive case law review and contrast these findings with what has been presented in the social science literature. Finally, we move on to explore potential reasons for the disconnect between the depiction of sexual assault against older women in the case law and that in the social science literature, and urge feminists and other scholars to bring this group of women back into focus in scholarship and advocacy surrounding sexual assault.

Our focus on older women does not mean to imply that older men are never subjected to sexual violence.[15] We focus on women for two reasons. First, our analysis is informed by the belief that sexual violence is profoundly gendered at all stages of the life cycle.[16] Second, the social science studies consistently support this position, revealing that the proportion of older victims of sexual violence (as opposed to physical violence) who are women is extremely high. For example, studies suggest that between 93% and 95% of older victims of sexual assault are women, and over 90% of perpetrators are men.[17] These figures are similar to the demographics of sexual assault in the larger population.[18] While one study of elder sexual abuse found that the percentage of female victims was only two-thirds of the sample,[19] this study appears to be an outlier. Thus we seek to explore how sex, old age, disability, race, and class intersect in the context of sexual violence.

I. Theoretical Perspective

A. Who Is “Old”? Concepts and Language

Any study of older women must address the preliminary questions of how the group is described and who is included within the category of “older”. We have decided to use the term “older”, recognizing that it is not without difficulties. For instance, by using the comparative “older”, one could be seen as implying that “younger” is the norm and that the group under study departs from the norm. It defines those who are old only in comparison to those who are not. In the context of sexual assault of older women, however, this comparative reference point is precisely what renders the sexual assault of older women invisible in our society. Older women are not seen as typical victims in the context of sexual assault. In fact, older women are generally not seen as sexual subjects at all.[20]

The word “old” typically has pejorative connotations when used to label others. Of course, that construction is problematic and ought to be contested, since it contributes to the marginalization of older people. Nonetheless, we have chosen not to use this term because many in the group of women under study here are not old by traditional measures (i.e., over sixty-five or seventy-five years of age) but rather are simply older as compared to typical sexual assault complainants. As Paul Luken points out, “old age ... is not simply a matter of how old one is; rather, it is a matter of how one is perceived to be old in specific situations.”[21]

Defining who is in and who is out of the descriptive term “older” is a challenging endeavour and one that shifts over time:

The onset of what is seen as “old age” has varied historically by at least 4 decades, from a person’s mid-30s to 70s, according to different configurations of the life span over the centuries. Nowadays it is no easier to say exactly when we reach old age, with health, class, poverty, and other entrenched inequalities playing a critical role.[22]

Age is described through many lenses. Chronological age is often used as a criterion for entitlement to benefits or withdrawal from the paid workforce. Various jurisdictions define this cut-off differently, but sixty and sixty-five are commonly used.[23] Some studies of sexual violence against older women borrow these chronological markers to define who is older.[24] But chronological age is only one way of circumscribing the category. Age is also socially constructed, and what constitutes older is highly gendered. Women are constructed as older at a younger age than men. For women, aging is more about the body and may be seen as a function of the point at which women lose sexual attractiveness to men and, as such, become socially invisible. “[T]he older female body is both invisible—in that it is no longer seen—and hypervisible—in that it is all that is seen.”[25] As such, women beyond their reproductive years are often construed as no longer desirable and ostensibly old.[26] Julia Twigg explains the gendered dimension of perceptions of aging as follows:

[C]ultural judgements concerning the body bear particularly harshly on women, traditionally prized for their sexual attractiveness seen to reside in youth. ... Aging undermines women’s traditional source of power. Male power by contrast resides in money, status, social dominance, so that early signs of aging such as gray hair are read as marks of maturity and authority.[27]

Sexual violence against older women is therefore more likely to be construed as deviant in contrast to sexual violence against younger women, which is normalized.[28]

Other kinds of inequality may also impact how one defines who is considered older.[29] For example, a study of elderly homeless persons used the age of fifty-five to distinguish younger from older shelter seekers.[30] A lower cut-off age was used because of the vulnerability of the population under study and their reduced life expectancy. In a study of older women with intellectual disabilities, the age of forty was used as a cut-off in order to capture a broader picture of women in this category, some of whom may have shorter life expectancies.[31] Similarly, a younger age may be used to define “old” in studies of prisoners, because of the poor lifestyles and premature aging of the prison population.[32] In the context of the present study, one might define a woman living in institutional care in her forties as “older”, because of her corresponding vulnerability, whereas a woman of the same age living and working in the community might not be considered an older woman.

Our perceptions of declining capacity also shape our construction of who is older. Persons experiencing significant disability are more likely to be labelled as old at a younger age than those without an identifiable disability. These types of vulnerability also put women at higher risk of sexual violence. Thus the point at which one is labelled as older will vary depending on other “intersecting inequalities”, such as gender, ability, class, and race.[33]

Studies have sometimes distinguished between “young-old” and “old-old”, with the younger category varying depending on the context and the older category usually describing those over eighty years of age.[34] This distinction recognizes that people live much longer today than in the past and that older adults face different challenges at different stages of their lives.

There is no agreement in existing studies on sexual violence against older women as to where this cut-off should be made. Studies use anywhere from age forty-five through sixty-five as the lower boundary of “older”.[35] We believe that it is important in studies of sexual violence against older women to recognize that gender plays a significant role in who is defined as older, particularly in the context of sexuality. Accordingly, we do not support simply borrowing an age from a context like retirement or entitlement to benefits, but rather seek to adopt a definition that recognizes that society ages women prematurely in the context of sexuality. Because we suspected that sexual violence against older women would be under-reported, and because we wanted to study as broad a sample as possible, we have chosen the age of fifty years as our bottom cut-off point to describe the category of older. We recognize that choosing any cut-off point is an arbitrary exercise, which may result in excluding some women from the analysis and possibly including others who should not be included. We also acknowledge that “women over fifty” is not a homogenous group. Women in their fifties may well experience sexual violence differently, for example, than women in their eighties. Similarly, within the category of older women, a woman’s social location will also be relevant in defining her vulnerability to sexual violence. As Rachel Pain has indicated, “The structures of class, gender, race and ability are the key determinants of how older people experience old age.”[36] Fifty was the youngest age used in the literature to define this category and, in our view, for women in the context of sexual assault, fifty is clearly “older”.

B. Locating Older Women in Feminist Literature

The theoretical literature on sexual abuse of older women is largely “uncharted territory”.[37] Feminist literature more broadly has failed to put older women at the centre of the analysis of sexual violence and has been criticized for neglecting this group of women altogether.[38] In their article, “Ageism and Feminism: From ‘Et Cetera’ to Center,” Toni Calasanti, Kathleen Slevin, and Neal King urge us “to recognize that just as gender, race, class, and sexual orientation serve as organizing principles of power, so too does age.”[39] While old age clearly intersects with other social inequalities, such as gender and class, it “is a social location in its own right, conferring a loss of power for all those designated as ‘old’ regardless of their advantages in other hierarchies.”[40]

Sexual assault has long been seen as an offence that is primarily committed against younger women.[41] The misconception that sexual violence against younger women is about male sexual desire, together with the stereotypes that older women are neither sexually desirable nor interested in sex, perpetuates the taboo around the discussion of the sexual assault of older women.[42] As long as we continue to assume that sexual violence is about misdirected sexual desire, those who are not considered desirable are rendered invisible. When sexual assault is seen instead as an exercise of sex inequality by men with more power over women with less, it is not surprising that older women, particularly those who are dependent on others for care, are vulnerable to sexual violence because of their relative powerlessness.

C. Older Women and “Rape Culture”

Feminist analyses of sexual violence are based on the recognition that such violence is not simply the aberrant act of a few random men, but rather represents the product of a “rape culture” that normalizes aggressive masculinity in sexual relations:

Rape is the logical outcome if men act according to the “masculine mystique” and women act according to the “feminine mystique”. But rape does not have to occur. Its presence is an indication of how widely held are traditional views of appropriate male and female behavior, and of how strongly enforced these views are. Our society is a rape culture because it fosters and encourages rape by teaching males and females that it is natural and normal for sexual relations to involve aggressive behavior on the part of males.[43]

Early feminist writings on rape culture did not specifically limit their analysis to younger women.[44] Rather, they saw the concept of rape culture as having explanatory potential for the largely unacknowledged problems of date and spousal rape, and for the way in which rape as a cultural practice constrained the lives of all women, whether they actually experienced sexual violence or not. Nonetheless, discussions of rape culture have noted how these attitudes are reflected and reinforced in popular culture, with high school and university campuses being a particular site for explorations of this idea.[45] When applied to the legal system’s treatment of complainants, criticisms have focused on the tendency toward victim-blaming, by cross-examining women on their sexual history or their alcohol consumption, or by insisting that they must have consented, because they failed to adequately object or resist to the assault.[46]

While this analysis is cogent and helpful in many cases, it does not speak to the way in which rape culture plays out in the legal context when the victim is not seen as a legitimate object of sexual attention due to her age. Popular culture does not eroticize older women as taboo in the same way that it does with girls. Nor are older women typically portrayed as “asking for it” because of their dress or their intoxication. The irony, of course, is that victims of sexual aggression are targeted not because of their sexual attractiveness, but because of their vulnerabilities, which both decrease their ability to resist and make it less likely that they will be able to successfully complain to persons in authority. When dominance itself is eroticized for the male aggressor, victims with intersecting vulnerabilities are at greater risk.[47]

The judicial treatment of sexual assault, and sexual assault complainants specifically, is very different for older women. Rarely is consent contested at trial. One does not see references to an older woman’s past sexual history,[48] attempts to admit third-party records to undermine her credibility,[49] or references to her failure to effectively manage the risk of sexual violence faced by all women on a daily basis.[50] Complainants are not put on trial and found wanting in their resistance to sexual violence. One might conclude that older women escape the negative effects of rape culture, at least in the legal context. In fact, older women are not recognized as sexual subjects at all. This lack of recognition has implications for how we see older women in society and for the steps we take to prevent sexual violence against this group of women. The myth that sexual assault is just an extension of normal male sexual desire makes the sexual assault of older women inexplicable. Older women are not supposed to talk about sexual things, and sexual violence against them is not talked about either.

II. The Empirical Reality of Sexual Violence against Older Women

A. Scope of the Problem

Social scientists have only recently begun to study sexual violence in older populations.[51] The United States National Center on Elder Abuse defines elder sexual abuse as “[n]on-consensual sexual contact of any kind” with an elderly person, including sexual contact with any person not capable of giving consent.[52] Under Canadian criminal law, if a complainant acquiesces to the sexual touching based on an abuse of trust, power, or authority, there is no consent.[53] As the population ages, and as the feminization of poverty continues, we can expect the number of older women who experience sexual violence to rise.[54] Aging, and the increased dependency and social isolation that accompany it, can make women targets for sexual violence,[55] just as the consumption of intoxicants or peer group norms of hostile masculinity can render younger women vulnerable. This problem is magnified for visible minority women and for those experiencing other forms of social disadvantage.[56] In Canada, for example, Indigenous women are disproportionately targeted for sexual violence at all ages.[57]

While there is a vast body of scholarly and professional literature on elder abuse, this term is not defined consistently in the literature. In certain studies, elder abuse is defined broadly to include sexual abuse,[58] whereas in other research contexts, it includes only physical abuse and neglect,[59] and in others yet it is expanded to include physical, sexual, emotional, and financial abuse.[60] It is more difficult to find studies dealing only with sexual abuse. Canadian literature on the incidence and nature of sexual assault against older women is particularly lacking, with the majority of English-language studies coming from the United States, England, and Australia. Ontario has taken some steps to monitor abuse in the context of nursing homes; however, the reporting requirements do not require that the type of abuse be specified. As such, the generalities used to describe particular incidents make it difficult to draw any conclusions about sexual violence specifically.[61] The tendency to include sexual assault as merely a form of elder abuse obscures both its actual prevalence and its highly gendered nature. Overwhelmingly, it is older women who are subjected to sexual violence by men.

No studies have yet attempted to determine the overall prevalence of sexual violence against older adults in the general population, even in the United States.[62] Of studies investigating elder sexual abuse in particular populations, findings vary depending on several factors, including: the population studied (e.g., older people[63] or older women[64]); the definition of “older”; how the data was obtained (e.g., from police reports, emergency room visits, adult protection services, or offender interviews); and where the abuse occurred (e.g., at a woman’s home or in a nursing home).[65]

Sexual abuse of older women is a form of victimization that warrants its own study because of its devastating consequences.[66] For example, older women are more likely than younger women to suffer serious injury from sexual violence. One study demonstrated that over one half of sexual abuse victims in a nursing home died within twelve months of the assault.[67] For many of these women, the impact of the assault is profoundly life-changing.[68] Women who are assaulted in their own homes may feel unable to remain in that home, forcing them to move into residential care or to move in with family members, thereby losing a significant degree of independence.[69] Women who lack the capacity to consent because of dementia or other conditions also suffer severe psychological trauma from sexual abuse, which is often evident through behavioural changes, even though they may have more difficulty in communicating their distress.[70] It is important to recognize that older women who are victims of sexual assault may have experienced sexual violence earlier in their lives, particularly where the abuser is a spouse or an intimate partner. Many women in abusive relationships are subject to violence and sexual violence over a long period of time. Thus, in understanding the impact of sexual violence on older women, it is important to consider the impact of cumulative sexual violence over the course of the lifespan.

In addition to being under-studied,[71] scholars agree that sexual violence against older women is greatly under-reported.[72] Older women may be more concerned with the stigma and embarrassment involved in reporting sexual violence;[73] they may fear reprisal, particularly if they are dependent on the person who is assaulting them, or reporting may be made difficult, if not impossible, by cognitive or communication difficulties.[74] Older women, like women generally, may be afraid that if they do report sexual abuse, their claims will not be believed.[75] In their review of 284 cases of elder sexual abuse reported to the police or to adult protection authorities, Ann Burgess and Steven Phillips found that 62% of the older population without dementia made a self-report regarding sexual violence, but only 12.8% of those with dementia made a self-report.[76] Reporting is estimated to be even lower in nursing homes than in the community,[77] particularly where the woman is unable to verbalize what has happened to her or where the perpetrator is another resident with dementia. Even where witnessed by staff, sexual assault may be confused with consenting activity among residents or with a spouse, or assumed to cause no harm to a resident with cognitive impairments.[78] We suspect that many cases are dealt with internally, without police involvement, which may often be seen as too traumatic for the complainant or inappropriate where the assailant is another resident of the facility. Accordingly, reported cases represent merely “the tip of the iceberg.”[79] Even where police complaints are pursued, Crown prosecutors may decide that the barriers to prosecution are too great, especially where the complainant is unable to testify. Where charges are initiated, the delay involved in going to trial may mean that the complainant, who may have once been able to testify, is no longer available as a witness due to either death or incapacity.

While empirical studies suggest that familial sexual assault is the most prevalent form of sexual assault against older women in the community, there is a dearth of literature examining its features and effects. There is even less literature on women who are sexually assaulted in their homes by family members, although the existing studies suggest that familial sexual assault is the most prevalent form of sexual assault against older women in the community. A European Union study, for example, found that 55.4% of sexual abuse against older women was perpetrated by spouses.[80] Such sexual violence can take several forms. For example, a woman may be sexually assaulted by her spouse over many years, with her vulnerability to this form of domestic violence increasing with age, as her options for supporting herself independently diminish. In addition, older women who themselves have a physical or mental disability may become particularly vulnerable to sexual violence at the hands of their familial caregivers. Their male partners may believe they are entitled to sex with their spouse regardless of her ability to consent.[81] Likewise, women acting as caregivers to family members with dementia may be a victim of sexual violence at the hands of their loved one, particularly where that person is their spouse.[82] Women in this situation may be particularly afraid that, if sexual violence is reported, their spouse will be removed from their care. Older women may be more likely than their younger counterparts to believe that sexual relationships are private and kept within the family. Women may also not have the support of their family in reporting sexual violence, often because those family members do not believe the allegations or simply want to protect their family member from prosecution.[83] It may be even more difficult for older women to contemplate leaving an abusive relationship for various reasons, including financial dependence, lack of access to the work force, and their general health status. “Starting over” may not appear to be a feasible option for women in this situation.

An analysis of the literature reveals that there is a lack of clarity surrounding the relative frequency of sexual violence against older women in institutions and in the community. Most studies suggest that between 23% and 33% of reported sexual assaults against older women take place in care facilities[84]—although these estimates may be low, given the low rates of reporting for institutional sexual assault. Some studies find that a much higher percentage of sexual assaults take place against women in care facilities. For example, a large study of older adults receiving attention from Adult Protective Services conducted in Virginia over a five-year period found that as many as 72% of sexual assaults took place in the institutional context.[85] The wide variation in statistics across these studies may reflect the different populations under study and the levels of reporting involved. Whatever the correct percentage, these numbers are disproportionate to the percentage of older people living in institutional care, which in Canada has remained relatively stable since 1981 at about 7% of the population over the age of sixty-five[86]—although the percentage may vary across different provinces and territories. As of 2009, the equivalent American statistic was 4%.[87] Women’s longer life expectancy means that a higher percentage of residents in care are female, especially for those over eighty years of age.[88] Due to an increase in the older population, however, the actual number of older women living in institutions has increased significantly in recent decades.[89]

Dementia increases the risk of sexual violence against older women more than the risk of physical violence. In one study, for example, 36% of sexual abuse victims in nursing homes had some form of cognitive impairment compared to about 23% of victims of other forms of non-sexual abuse.[90] Dementia represents a risk factor for sexual violence both in institutions and in the home.[91] The presence of dementia increases the risk to women, especially from people they know.[92] Sexual assault cases become particularly complex where the perpetrator, often another resident in a nursing home, also suffers from dementia, which is overwhelmingly the case in resident-to-resident sexual assaults.[93]

American studies have demonstrated that where an older woman is living will have an impact on the nature of the sexual assault. Older women living in institutions are most likely to be assaulted by male residents[94] and paid caregivers.[95] Caregivers are often repeat offenders who victimize a number of complainants before being detected.[96] Older women living in their homes are more likely to be sexually assaulted by family members and acquaintances.[97] In one study of the risk of sexual assault among older women living in their homes, in long-term care facilities, and in homeless settings, 75% of women across the three groups reported knowing the suspected offender.[98] In institutional settings, service providers accounted for 67% of suspected offenders. Women in institutional settings were more likely to be coerced through an abuse of authority than women in the community, where physical violence was more prevalent.[99] The researchers found that women living in the community and homeless women were more likely than women living in institutions to be subjected to more violence than that inherent in the sexual assault,[100] a finding that is confirmed by our own case law analysis below. In a 2015 study of police reports of rape among persons over the age of sixty in the United Kingdom, the researchers found that “women aged 60 and over were most likely to be raped by an acquaintance, a partner or husband, or someone else known to them.”[101]

There is not a great deal of literature on the perpetrators of sexual assault against older women beyond the victim and perpetrator relationship. One English study found that stranger sexual assaults against older women tended to involve younger perpetrators between sixteen and thirty years of age, whereas men perpetrating offences against women known to them, or in care homes, tended to be in an older age group between thirty-one and sixty years of age.[102] Several of the men in the study (who were all offenders) also had a previous record of sexual offences against children. Many of the men indicated that, in the context of stranger assaults that began as robberies, drugs or alcohol emboldened them to commit sexual violence.[103] Older women were often deliberately targeted because of their perceived vulnerability.[104]

B. Criminal Justice Responses

While one must be cautious about applying studies on the American criminal justice system directly to Canada, the American literature on criminal justice responses to elder sexual abuse is at least instructive with respect to trends that warrant investigation in Canada. These studies have shown a disproportionately low rate of prosecution and conviction, particularly for cases of institutional sexual assault. For example, in their review of the criminal justice response to 120 cases of sexual abuse against older women, Burgess and her colleagues found that law enforcement was notified in 96% of cases, the offender was identified in 75% of cases, charged in 55%, and found guilty in approximately 25% of cases.[105] In another study of 82 substantiated sexual abuse cases against female residents in nursing homes, the researchers found that of the 95% of perpetrators identified, only 5% were prosecuted and three convictions were secured.[106] Low prosecution rates may result from evidentiary problems, trouble with witnesses, or delay in or failure to report.[107] Delays in the criminal justice system may also result in the complainant dying or becoming incapable of testifying before the case makes it to trial.

The presence or absence of dementia is also relevant to the criminal justice response.[108] Even though those with dementia often do communicate their distress through behavioural signs,[109] it is extremely difficult to prosecute where the complainant is unable to testify against her perpetrator, unless there were witnesses to the actual abuse. This allows perpetrators to sexually assault women with dementia without any real risk of being held accountable as long as they keep their conduct hidden from witnesses. Thus it is not surprising that offenders in the institutional setting target women with dementia.

III. The Case Law Disconnect

While the social science evidence is somewhat hard to disentangle, it is consistent in finding that women in nursing homes are at an elevated risk of sexual violence relative to the proportion of women living in care facilities. Where women are sexually assaulted in their homes, they are much more likely to be sexually assaulted by persons they know than by strangers, most often by family members. When one looks at the pattern of sexual violence in the Canadian case law, however, there appears to be a significant discrepancy between that pattern and the picture painted by social scientists. Our case law review examined sexual assaults of all levels[110] against women over fifty over the last two decades (1995–2015) in every Canadian province and territory. Because we suspected that this type of crime would be vastly under-reported, we wanted to be as inclusive as possible. Our search therefore included other types of decisions that indicated that there had been a criminal trial, such as deportation proceedings[111] and Criminal Code review board decisions.[112] We recognize that reported judgments convey only a piece of the picture for all cases that are prosecuted. Guilty pleas and jury trials, for example, will only be reported where there are written reasons for sentencing or a dangerous offender application. Not all cases heard by judges sitting alone will result in written reasons. Nonetheless, given the dearth of information on this group of complainants, we hope that this preliminary examination of the case law will provide the impetus for more in-depth research.

Out of the over 3,000 cases of sexual assault that we reviewed, we found 111 cases involving sexual violence against older complainants. 109 (98%) of these cases involved older female complainants with only 3 cases, in acute care hospital and seniors’ apartment settings, involving male complainants.[113] Our study examined the 109 cases involving female complainants. These 109 cases included 154 complainants because, in several cases, the accused sexually assaulted multiple older women.[114] 78 of these cases were identified through extensive case law searches and the remaining 31 were taken from newspaper reports of convictions or sentences. Most of the cases are trial judgments or reasons for sentence. All of the alleged perpetrators were men. 81 of the 109 cases (74%) involved women living in the community, 5 cases involved women in an acute care hospital setting, and 23 cases involved women living in some form of supported living.

With respect to women in supported living situations, there are a number of living arrangements for older women, which can be seen along a spectrum of level of support provided. We have divided these cases into two groups: the first comprises women living in facilities with some support but where the residents lead predominantly independent lives. The second group includes women who are living in a long-term residential care facility, where much more support is provided and residents have a greater dependency on caregivers. Many women in this group have significant cognitive impairments. We draw these lines simply to provide context to the cases presented. The following table provides a summary of the age breakdown of the complainants in these cases.

*Includes retirement homes, seniors’ apartments and, in one case, a convent

**Included in the sample because of descriptors such as “elderly” used to describe the complainant

-> Voir la liste des tableaux

A. Women Living in the Community

We found eighty-one cases of men sexually assaulting older women living in the community. These eighty-one cases included ninety-three women because in six cases, the accused was charged with assaulting more than one woman. Seventy-four of these complainants (80%) were sexually assaulted in their own homes. In the remaining cases, the sexual assaults took place in a public place, for instance when the victim was walking to get groceries[115] or walking to meet a family member[116]. One case involved a seventy-one-year-old homeless Indigenous woman who was sexually assaulted and murdered in the garage in which she had been staying.[117]

Of these ninety-three women, fifty-six (60%) were sexually assaulted by a stranger, thirty (32%) were sexually assaulted by a neighbour, acquaintance or friend, five (5%) involved sexual assaults by a family member, and in two cases (2%) the nature of the relationship between the complainant and the accused was unclear from the report.[118] Of the five cases involving sexual assaults by family members, three cases involved an adult son sexually assaulting his mother,[119] including one case that involved the sexual assault of a woman who was the foster and later adoptive mother of the accused.[120] In one case, the fourteen-year-old accused had sexually assaulted and murdered his grandmother.[121] Only one case involved a spousal sexual assault.[122] Although the social science evidence tells us that only about one quarter of women sexually assaulted while living in the community do not know the perpetrator, over 60% of the cases in our sample involved stranger sexual assaults. We labelled cases as “stranger cases” from the perspective of the complainant based on whether she was familiar with or had met the accused prior to the sexual assault. There were a few stranger cases in which the accused had some distant connection to the victim, such as being an acquaintance of the victim’s nephew[123] or a guest of her landlord,[124] which presumably enabled the accused to identify and target the complainant. A large number of these cases involving women in the community took place in the context of other violent crimes, such as home invasion or break and enter incidents, and involved significant violence beyond that inherent in the sexual assault.[125]

The women in these home invasion cases were often beaten or mutilated,[126] and left for dead.[127] Eleven of these women were killed in the course of the sexual assault.[128] Many of these cases involved very elderly women who were targeted because of their evident physical vulnerability. There was evidence of cognitive decline or dementia for only one of these women.[129] One cannot overstate the devastation caused to the women in these cases. Many women had to leave their lifelong homes,[130] enter institutional care, and some suffered permanent injury, major depression, and significant deterioration of their overall health.[131]

There were 109 accused in these cases. They were often very young men—sometimes teenagers[132] with troubled backgrounds. Of those accused from actual case reports, 30% were identified as Indigenous.[133] Several had repeatedly targeted older women.[134]

Eight cases, or nearly 10%, involved accused persons charged with the most serious form of sexual assault, aggravated sexual assault (level 3),[135] and fourteen cases involved a charge of sexual assault causing bodily harm (level 2).[136] This is much higher than the charging rate for level 2 and 3 sexual assault in the general population, which together make up less than 5% of sexual assault charges.[137] It has been suggested that police officers generally tend to charge the lowest level of sexual assault even where there is evidence that could support a more serious charge.[138] This phenomenon does not appear to have been present in our sample of older women.

It is impossible to draw meaningful conclusions about the conviction rate in our sample because many of our cases were sentencing decisions; however, what is striking is that there were only two acquittals in this group of cases, one of which was overturned on appeal.[139]

It was striking to us how many of these cases were reported in the context of a dangerous offender application. Of the eighty-one cases, seventeen (21%) involved dangerous offender applications[140], a much higher rate than that generally found in sexual assault prosecutions.[141] The Crown’s application succeeded in twelve of these cases, resulting in an indeterminate period of incarceration.[142] A long-term supervision order was imposed in four of the cases[143] and in the remaining case there is no record of the outcome.[144] In one additional case, the Crown sought and obtained a long-term offender designation.[145] Where dangerous offender proceedings were not brought, the sentences imposed in these cases were significant, ranging from eighteen months of incarceration to life imprisonment. In only one case was the accused allowed to serve the sentence in the community,[146] and in thirty-three cases the accused received sentences of ten years or more—although these sentences were often imposed for multiple offences, not just the sexual assault.[147] In two of the cases involving women attacked in their homes, the accused were found not criminally responsible on account of mental disorder.[148]

Thus we found no evidence that men who sexually assaulted older women living in the community were not being given significant sentences, as is sometimes alleged for younger women. The sentences imposed for this group of accused are the harshest sentences imposed for any of the cases we identified. Just as with younger women, the harshest sentences are usually given to sexual assaults committed by strangers in the context of violent break-ins. However, when we looked at the level 1 sexual assault cases involving women living in the community, where there was no violence beyond that involved in the sexual assault, the average sentence where the accused was a stranger was approximately seven years, whereas the average sentence for someone known to the complainant was approximately three years. While these numbers are incomplete because the sentences were not available in all cases, the difference is sufficient to at least warrant further investigation. This significant differential suggests that stranger sexual assaults may still be seen as inherently more serious even when they did not necessarily involve more violence.

Our case law search certainly suggests that there is a gap in the cases where charges are proceeded with. In a period of twenty years, we only found five cases where family members sexually assaulted older women living in the community, a number which seems dramatically low even taking into account the barriers to reporting. Of these five, only one involved a spousal sexual assault and there were no cases involving caregivers as perpetrators or as complainants. If one used this case law as a guide, one would think that sexual violence against older women is largely a problem of strangers breaking into women’s homes. We can only speculate that, in cases involving family members or caregivers, the police may never be called, or cases may be screened out or dealt with by adult protection mechanisms, rather than resulting in criminal charges.[149]

B. Women in Acute Care Hospital Settings

We found five cases involving fourteen older complainants in acute care hospitals where the case report suggested that complainants may have been only short-term patients in the facilities.[150] As a result, it is difficult to characterize these cases based on where the woman is living. Four out of five of the hospital cases involved doctors or caregivers as accused[151] and one involved another patient.[152] In one of these cases, an anesthesiologist sexually assaulted twenty-one female patients ranging in age from twenty-five to seventy-five; there was no suggestion that he was targeting older women in particular.[153]

C. Women Living in Supported Settings

We found twenty-three cases involving a total of forty-seven complainants living in various degrees of supported care. In this section, we subdivide these cases based on the level of support provided.

1. Women Living in Seniors’ Apartments or other Supported Housing

Nine men were charged with sexually assaulting a total of twenty-nine women living in seniors’ apartment buildings where there was some support provided but the women led largely independent lives.[154] Six of these cases involved attacks by strangers,[155] one involved a sexual assault by a maintenance worker,[156] and two were sexual assaults by another resident.[157] The cases in seniors’ apartments resembled community cases more than other institutional cases, particularly in their brutality. Only one accused argued that the complainant had consented.[158] Six of the eight offenders received penitentiary time,[159] including one life sentence, which followed a conviction for manslaughter (where the complainant died in the hospital one month after a particularly violent sexual assault),[160] and there was one dangerous offender designation.[161]

There was one case—R. v. McPherson[162] (McPherson)—which took place in an Indigenous Elders’ Lodge, which we include in this category, although we recognize that this is not a perfect fit. This was the only case in this group in which consent was a live issue at trial. In McPherson, the accused and one of the complainants were in an intimate relationship and both were residents of the facility. The complainant acquiesced to sexual intercourse with the accused because he was acting strangely and she wanted to calm him down before he became more violent. He then violently assaulted a younger staff member in the facility. The trial judge quickly dismissed the suggestion that the first complainant had voluntarily consented to the sexual activity.[163]

We have also included one case in this category that involved an accused who sexually assaulted eleven complainants, including ten nuns between the ages of sixty-two and ninety-one in a Quebec convent, even though it does not clearly fit into any of our categories. In this case, the accused pretended to be a doctor treating friends or relatives of the nuns for various sexual health conditions (e.g., for conditions involving elevated levels of sexual hormones). The accused would show the nuns how to “help” their friends or relatives in various sexual ways. This case was reported in the context of a successful dangerous offender application.[164]

2. Women Living in Long-Term Residential Care

We found only fourteen cases where complainants were clearly identified as living in long-term residential care (LTRC).[165] These are facilities that provide a high level of support including feeding, dressing, bathing, and administering medications where required. These fourteen cases involved a total of eighteen complainants. Seventeen of these complainants suffered from a cognitive disability or dementia.[166] In R. v. Okumu (Okumu), for example, the accused, a caregiver, was found having sexual intercourse with a ninety-one-year-old woman with advanced dementia.[167] Of the fourteen accused, there were five male employees of the facility,[168] four residents,[169] two volunteers at the facility (including a priest),[170] two relatives or acquaintances of another resident,[171] and one was a stranger.[172] In some of the caregiver cases, there was evidence suggesting that the incident in question was not the first time the accused had sexually assaulted someone under his care.[173] In almost all of these cases, there was someone who witnessed the assault(s), which made prosecution possible, because complainants were unable to bring their own complaints. In three of the cases, the accused was found unfit to stand trial on account of mental disorder,[174] and in one of the cases, no charges were laid because the investigators determined that the alleged perpetrator was incapable of forming the requisite mens rea for sexual assault.[175] Given the high rate of dementia among the complainants in the LTRC cases, it is not surprising that none of the accused in these cases directly challenged the assertion of non-consent. In fact, the complainants were overwhelmingly absent in these cases; other witnesses described what had happened and what the long-term consequences of the assault were for the complainants. The women themselves had no voice.

In two of the LTRC cases involving caregivers, the accused argued that he was simply providing nursing care and thus that the touching in question was not sexual. For example, in R. v. Brown,[176] the accused worked in a locked unit for residents with Alzheimer’s disease. He was charged with sexually assaulting two women living at the facility. With the first complainant he had been seen groping the “cheek of her bum” followed by smiling and smirking.[177] The accused alleged that he had simply been checking her diaper (in a hallway with other people present), even though she was not one of his patients that day.[178] The trial judge had a reasonable doubt as to whether the accused had a sexual purpose and acquitted him on this count. The accused was also seen by two people in the bathroom with the second complainant who was sitting naked on the toilet facing the accused. He had his pants and underwear down at his feet and was standing in front of her. He claimed that the complainant had been playing a game with him and that she pulled his pants down. He testified that he did not pull them back up because he was focusing on her care first. Here the trial judge rejected his explanation that he had been caring for the complainant and convicted the accused of sexual assault. [179]

These LTRC cases were different than those against women living in the community. Rarely was any violence beyond that inherent in the sexual assault involved, and there were no cases involving charges more serious than level 1 sexual assault. Particularly where the accused was a caregiver, the sexual assaults may have been one incident within a pattern of sexual assaults by the accused. As with other categories, it is impossible to discuss conviction rates meaningfully from our sample. Nonetheless, it is noteworthy that there was only one acquittal in this category.[180] With respect to sentencing, these cases tended to receive lower sentences than the level 1 sexual assaults against women in the community, although they still attracted significant sentences compared to sexual assaults of younger women.[181] In Okumu, the accused was sentenced to five years of imprisonment for having sexual intercourse with the ninety-one-year-old complainant.[182] In R. v. Ashley-Pryce, an eighteen-month jail sentence was imposed and upheld on appeal for a care worker who masturbated while holding the hand of an elderly woman with Alzheimer’s disease.[183] The most striking thing about this group of cases is really how small it is given the twenty-year period under study, which suggests that current policies for dealing with sexual violence in these institutions are still inadequate.

The cases involving women in supported living settings suggest to us a number of conclusions that merit further research. The fact that there are very few cases in which women in supported but semi-independent residences report sexual assault by caregivers underscores the vulnerability of these women. They require at least some support in their daily living and yet their relative capacity and independence means that they are often interacting with caregivers in ways that are completely private and unsupervised. It is important that these women know their rights to be free from unwanted sexual contact and receive clear channels for reporting abuse.

For women in long-term residential care, almost all of the cases involve victims with dementia or other cognitive impairments. These cases relied on the evidence of other witnesses to the abuse. Where the abuse was inflicted by another resident, this raises complex issues of the suitability of the criminal justice system to prosecute those with mental impairments. Most of these cases in our sample went through the forensic mental health system, which may also be ill-equipped to deal with accused who themselves have dementia. Where the abuser was a staff member, abusers would either deny sexual contact, or explain or justify their behaviour as part of caregiving.

Preventing and detecting sexual abuse of older women by caregivers requires that clear standards be set for interactions between caregivers and clients, and that a team approach to care be instituted to ensure adequate supervision of clients, particularly those with cognitive impairments.


The sexual assault of older women is a problem that deserves more attention from researchers and the criminal justice system. With an aging population, the number of such assaults is likely to increase. In Canada, studies of the problem are almost entirely lacking and, even looking more broadly, reports tend to measure different things in different ways, often obscuring sexual violence by combining various forms of abuse under the label of “elder abuse”, making the drawing of reliable conclusions difficult.

The case law that we do have suggests a number of things about the treatment of sexual violence against older women by the criminal justice system that merit further study. First, the available cases of sexual assault against older women resemble sexual assault cases in the general population prior to the reforms of the 1980s and 1990s.[184] Cases involving stranger assaults with significant additional violence are the majority, even though we know these make up only a small minority of sexual assaults. Non-consent is not contested in these cases, not necessarily because the victims lack the capacity to consent to sexual activity, but because of the degree of additional violence and the lack of any relationship between the offender and the victim. Courts have little difficulty recognizing the grave harms of such assaults and sentence offenders accordingly, often to the most severe sentence available in Canadian criminal law: an indeterminate sentence as a dangerous offender. Many of these accused appear to be serial offenders whose behaviour is not successfully interrupted until they cause grave harm or death to their victims. This requires targeted early interventions that give careful consideration to the root causes of such assaults, often committed by very young men with deeply troubled backgrounds.

Second, we found reference to only one case involving a sexual assault by a spouse. It is simply not believable that spousal sexual assaults are not happening for this group of women, particularly in light of the social science evidence to the contrary. It is important to recognize that sexual assault, and its effects, cumulate throughout the lifespan. Older women and younger women are the same women at two different points in time. Thus, a woman who is sexually abused by her spouse earlier in the relationship and who is unable to leave may see that abuse continue, sometimes in different forms, as they age. Where one of the spouses becomes cognitively impaired, sexual assault may appear for the first time or intensify later in life. Women with dementia may be vulnerable to sexual demands from husbands they no longer recognize, while women who are caring for men with dementia may have to cope with changes in a spouse’s behaviour, including the display of sexual aggression. We believe that this type of sexual abuse is the least likely to be reported, much as is true for spousal sexual assaults in the general population. In fact, many older women will have entered their relationships decades before the repeal of the marital rape exemption[185] and may not know that they have the right to refuse such demands.

Third, with respect to women in supported care, different features and complexities emerge. In cases where the offender is a staff member or caregiver, the key challenge is finding sufficient evidence to prove the behaviour occurred, given that women who have significant cognitive disabilities may be targeted precisely because they will be unable to bring a complaint. Offenders may try to explain their behaviour as part of providing intimate personal care or as something unexpectedly initiated by the complainant. We believe that such challenges mean that many, and probably most, of these cases are never reported to police, even if they come to the attention of facility managers. At a minimum, these risks demand staffing protocols that will minimize the risk of such abuse.[186] Because these women may be unable to communicate what has happened to them, staff must be alert to subtle behavioural signs that sexual abuse has taken place.

In cases where the offender is a fellow resident of the complainant, it is even more difficult to assess the appropriate role of the criminal justice system. In our sample, these perpetrators, when charged, were usually found unfit to stand trial. This is a particularly pressing problem given that these individuals may be at a particularly high risk of re-offending in their new facility with no recourse for potential complainants.[187]

Finally, cases involving charges of sexual assault against a woman in long-term care committed by a family member are noticeable by their absence. In our interviews with those working in the field, the issue of ongoing sexual activity between spouses, where one spouse has advanced dementia, is a significant issue for staff at these facilities. We plan to explore sexual assault in long-term care facilities in more detail in a subsequent article and to investigate police reports of sexual violence with a view to identifying at what stage these complaints are being filtered out.

Older women face unique challenges in reporting sexual violence. Before we can make progress in minimizing this kind of violence, we have to acknowledge that it is happening and take steps to bring it into public consciousness. We have made significant gains in recognizing the prevalence of sexual violence for younger women over the past three decades, particularly in the area of familial and acquaintance sexual assault. Many of these gains have been made as a result of advocacy on the part of the women’s movement. As this generation of women ages, we would hope that older women will be brought into the conversation about sexual violence and that activists will recognize and confront the range of legal and social challenges faced by this group of women. We hope that the information provided in this article will challenge other Canadian researchers to begin to explore this pressing, yet largely invisible, social problem.