AuthorGotell, Lise


Even in the wake of the #MeToo movement and its defiant challenge to the victim-blaming of survivors, risk management discourses have continued to inform Canadian sexual assault decisions, constituting the ideal victim as the rape-preventing subject. In R v Hutchinson, (1) a case involving condom sabotage, the Supreme Court of Canada (SCC) upheld the accused's conviction for sexual assault, while also narrowing the scope for consent under subsection 273.1(1) of the Criminal Code. (2) According to the majority, "voluntary agreement to the sexual activity in question" includes agreeing to the "sexual nature of the activity", to the "identity of the partner", and to the "physical sex act itself ". (3) The majority's thin construction of the "act" legally agreed to specifically excludes the need for consent to how the sexual touching is carried out and to the risks associated with it. In this paper, I interrogate the decontextualized rhetoric of choice and autonomy informing this decision and explore two high profile cases engaging Hutchinson that embed an insistence that women bear responsibly for the prevention of sexual violence through avoidance of risk. I examine R v Dadmand, (4) a case of sexual scamming, as well as R v Barton, (5) a tragic case in which an Indigenous woman died as a result of injuries that were caused by the accused in the context of an arrangement of sex for payment. In both of these cases, the scope of consent was narrowly drawn, and victim-complainants were characterized as responsible for the harms they experienced.

In Part I of this article, I provide an overview of Canada's affirmative consent standard and demonstrate how, despite the protections it offers for sexual autonomy, the development of consent doctrine has been increasingly decontextualized from an understanding of sexual assault law informed by the constitutional value of women's sexual equality. As I contend, sexual assault law operates governmentally and productively, constituting privileged forms of sexual citizenship built upon the imperatives of risk management. In Part II, I engage in a critical analysis of Hutchinson, highlighting the majority's failure to acknowledge condom sabotage as a tactic of intimate partner violence, embedded within an analysis that decontextualizes sexual autonomy from equality. As I argue, the decision's artificially narrow construction of "sexual activity in question", (6) viewing condom use as outside the scope of consent, must be understood in relation to the judicial construction of HIV non-disclosure as fraud vitiating consent when there is a "significant risk of serious bodily harm." (7) Driven by fears of over-criminalization, the Hutchinson majority's restricted interpretation of the act legally consented to represents a retreat from the affirmative consent standard and conflates sexual fraud with bodily harm. In Part III, I analyze Dadmand, a case of sexual scamming that included an instance of non-consensual condom removal (NCCR), in order to illustrate the corrosive implications of the Hutchinson majority's narrowing of the scope of sexual consent. I suggest that we must be attentive to how anxieties about over-criminalization may act to insulate predatory forms of masculine sexual conquest from legal regulation. Finally, in Part IV, I engage in an analysis of Barton, focusing on how the Hutchinson majority's narrow construction of "sexual activity in question" has been relied on to make the claim that the level of force should be excluded from the consent inquiry. The SCC's recent decision in Barton, (8) ordering a new trial on the basis that sexual history evidence was improperly admitted at the original trial, emphasized the systemic racism facing Indigenous victims of sexual violence and sought to clarify the meaning of consent, as well as restrictions on the defence of honest but mistaken belief in consent. Nevertheless, I show how the Court refused to revisit its conceptualization of "sexual activity in question" as the "basic physical act" (9) and left unsettled the critical question of whether the scope of consent includes the level of force. This leaves Indigenous women, particularly those engaging in paid sex, at risk of bodily harm.


    By the end of the twentieth century, Canadian feminists could claim credit for fundamental changes to the Criminal Code provisions on sexual assault, with new evidentiary restrictions on sexual history, (10) strict limitations on the disclosure of complainants' confidential records, (11) and most crucially, the codification of a strong framework for sexual consent. (12) It is important to emphasize how Parliament understood the purpose of the new consent provisions enacted in 1992. (13) This law reform was passed with a preamble citing the need to protect women's section 15 equality rights under Canadian Charter of Rights and Freedoms (14) and stating that the "Parliament of Canada is gravely concerned about the incidence of sexual violence and abuse in Canadian society, and in particular, the prevalence of sexual violence against women and children". (15) A statutory definition of consent as "the voluntary agreement... to engage in the sexual activity in question" (16) was embedded in the Criminal Code, transforming consent into "something a woman does, and freely chooses to do, not something that men fantasize or choose for her". (17) The revised Code also enumerated a non-exhaustive set of situations where no consent is presumed to exist, including when agreement is expressed by another person, when the complainant is "incapable of consenting", when the accused abuses "a position of power, trust or authority", and when the complainant expresses a lack of agreement to engage or continue to engage in the sexual activity. (18) According to Sheila McIntyre, a participant in these law reforms, this provision was intended to "convert self-serving rape-myths and rationalizations proffered as honest, but mistaken, beliefs in a woman's consent, into errors of law." (19) Finally, the defence of mistaken belief was limited by a new requirement that the accused must have taken "reasonable steps" to ensure consent and by specifying that there can be no such defence when this belief arises through "recklessness or wilful blindness". (20) Popularly referred to as the "no means no" amendment, the positive definition of consent as a voluntary agreement, as well as limitations on the defence of mistaken belief, had the effect of distinguishing consent from submission, challenging a version of normative heterosexuality founded on male sexual conquest and feminine acquiescence.

    From the statutory foundation established through these amendments, the starting point of sexual assault trials has shifted away from the assumption that women exist in a state of consent, towards the requirement that there be some positive evidence of agreement. Doctrinally, Canada has moved further in the direction of an affirmative consent standard than many other jurisdictions. (21) In R v Ewanchuk, (22) the SCC articulated a standard for consent that approaches "only yes means yes" by unanimously ruling there is no implied consent and by establishing that silence, passivity, or ambiguous conduct cannot be taken as indications of consent. (23) The Court defined the actus reus of sexual assault as non-consensual sexual touching, where consent is determined from the subjective perspective of the complainant at the time of the sexual contact, finding that further steps to (re)establish agreement are needed after someone has refused or withdrawn consent. (24) Key appellate rulings have consolidated an affirmative standard by giving teeth to the requirements that consent must be specific and voluntary, (25) and by holding that an accused must have taken active and positive steps to secure agreement in order to raise the defence of mistaken belief. (26) In R v JA, the SCC determined that there can be no advance consent to sexual contact that takes place during unconsciousness, emphasising that consent must be ongoing during each moment of a sexual encounter, and "must be specifically directed to each and every sexual act .... 'at the time it occur[s]'." (27) As the majority recently described the law of consent in R v Goldfinch, "[t]oday, not only does no mean no, but only yes means yes. Nothing less than positive affirmation is required." (28)

    Early on in the life of the Criminal Code's revised consent provisions, judges acknowledged sexual assault as a practice of sexual inequality and applied an equality lens to their interpretation. (29) Several SCC decisions in the 1990s underlined the gendered nature of sexual violence and identified the protection of autonomy, dignity, and equality as the structuring principles of sexual assault law. In R v Osolin, (30) for example, Justice Cory emphasized how sexual assault is a form that gender inequality takes, and that sexual assault law must meet the constitutional equality standard:

    It cannot be forgotten that a sexual assault is very different from other assaults. It is true that it, like all the other forms of assault, is an act of violence. Yet it is something more than a simple act of violence. Sexual assault is in the vast majority of cases gender based. It is an assault upon human dignity and constitutes a denial of any concept of equality for women. (31)

    This early commitment to seeing sexual assault law through the lens of equality has, however, given way to an increasingly individualized and decontextualized approach to consent, emphasizing choice and autonomy. As Janine Benedet has argued, more recent jurisprudence has been marked by "the elision of women's equality with individual autonomy, and the concomitant impoverishment of the concept of autonomy by equating it with 'choice.'" (32) Rather than drawing law's attention to the context of...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT