Affirmative sexual consent in Canadian law, jurisprudence, and legal theory.

AuthorVandervort, Lucinda

Abstract

This article examines the development of affirmative sexual consent in Canadian jurisprudence and legal theory and its adoption in Canadian law. Affirmative sexual consent requirements were explicitly proposed in Canadian legal literature in 1986, codified in the 1992 Criminal Code amendments, and recognized as an essential element of the common law and statutory definitions of sexual consent by the Supreme Court of Canada in a series of cases decided since 1994. Although sexual violence and non-enforcement of sexual assault laws are worldwide phenomena, the international scholarly literature reflects limited awareness of these developments in Canadian law. This article remedies that gap in the literature. The Canadian experience with the definition of sexual consent as communicated "voluntary agreement" demonstrates the value of this conceptualization of consent; the definition provides a well-defined set of nondiscretionary reference points for legal analysis of the facts in sexual assault offenses. The effect is to facilitate effective enforcement of the sexual assault laws and affirm the right to sexual autonomy, sexual self-determination, and equality, consistent with fundamental principles of individual human rights. For all these reasons, familiarity with the Canadian experience may be useful to those engaged with the reform of rape and sexual assault laws in other jurisdictions.

INTRODUCTION

This article examines the development of affirmative sexual consent in Canadian jurisprudence and legal theory and its adoption in Canadian law. Requirements for affirmative sexual consent, or communicated voluntary agreement, were explicitly proposed in Canadian legal literature in 1986, (1) codified in the 1992 Criminal Code amendments, (2) and recognized as an essential element of the common law and statutory definitions of sexual consent by the Supreme Court of Canada in a series of cases decided since 1994. The international scholarly literature reflects only limited awareness of these developments. This article fills that gap in the literature.

The Canadian experience with the definition of sexual consent as communicated "voluntary agreement" demonstrates the value of this conceptualization of consent; the definition has proven to be robust. It provides a powerful and well-defined set of nondiscretionary reference points for legal analysis of the facts in sexual assault offenses. The effect is to facilitate effective enforcement of the sexual assault laws and affirm the right to sexual autonomy, sexual self-determination, and equality, consistent with fundamental principles of individual human rights. For all these reasons, familiarity with the Canadian experience may be useful to those engaged with the reform of rape and sexual assault laws in other jurisdictions.

There are many similarities among experiences with sexual assault laws in jurisdictions worldwide. Law enforcement often fails to fulfill the promise of law reform initiatives undertaken to reduce the high incidence of sexual assault and increase the levels of reporting and prosecution. (3) This has also been the experience at the grassroots or local level in Canada, despite progressive developments in the law at the national level. Statistics show that most sexual assaults in Canada are committed by someone known to the assailee, (4) yet non-stranger assaults are the least reported and most seldom prosecuted form of sexual assault. (5) These are hardly new phenomena. Non-stranger sexual assault has long been an under-recognized and under-acknowledged category of sexual violence in Canada.

That stands in sharp contrast to the law. National legal standards for the interpretation and application of the sexual assault laws enacted by Parliament have been established by the Supreme Court of Canada in a series of cases over a period of two decades. The definition of consent codified by Parliament in the 1992 amendments has proven to be robust. In reasons for judgment for the majority in a recent case, McLachlin C.J.C. stated:

Parliament has defined sexual assault as sexual touching without consent. It has dealt with consent in a way that makes it clear that ongoing, conscious and present consent to "the sexual activity in question" is required. This concept of consent produces just results in the vast majority of cases. It has proved of great value in combating the stereotypes that historically have Surrounded consent to sexual relations and undermined the law's ability to address the crime of sexual assault. (6) The next stage in the development of sexual assault law in Canada must focus on designing regulatory and review mechanisms that can be effective to curtail errors of law and abuse of discretion by police, prosecutors, and trial judges who handle sexual assault complaints. (7)

The legal definition of sexual consent as express "voluntary agreement" affirms individual rights to sexual autonomy and self-determination and creates a unique set of well-defined and nondiscretionary reference points to anchor legal analysis of the facts in sexual assault cases. The definition will be as crucial for the effective operation of any new mechanisms that are designed to regulate the decision-making processes used by police and prosecutors, as decisions by the Supreme Court of Canada have shown it to be for judicial analysis of the legal significance of the facts in sexual assault cases. Without the precision and comparative certainty about the legal significance of the facts that the requirement of express "voluntary agreement" to sexual activity provides in case analysis, more effective regulation of police, prosecutorial, and judicial discretion would be far more difficult to achieve.

The definition of sexual consent has a pivotal function in determining how the elements of the offense of sexual assault are applied to the factual circumstances of a sexual assault case. In particular, the definition of consent shapes the legal analysis of the factual circumstances of the offense by determining what the issues are and, in turn, what facts are material. Selecting a different definition is like changing the focal point of an optical lens. Facts that are assumed to be material, probative; and relevant for proof of the actus reus or mens rea when one definition is used, may be irrelevant when a different definition is used. The consequences of defining sexual consent as the communication of "voluntary agreement" for legal analysis of the significance of the facts of a case are examined below, and illustrated by leading decisions by the Supreme Court of Canada. At this stage, however, it may be helpful to provide an introductory overview of consent, defined as "voluntary agreement," and a brief sketch of how this definition, when it is correctly interpreted and applied to the facts, shapes and often dramatically simplifies analysis of the actus reus and mens rea of sexual assault.

Affirmative sexual consent defined

The term "consent" has been interpreted in many different ways; unqualified use of the term easily gives rise to misunderstanding. Here we are specifically concerned with sexual consent, defined as the unambiguous or express communication of "voluntary agreement" to sexual touching.

"Voluntariness" connotes that the agreement is not coerced, that the person who agrees is acting "freely" and has other options or other choices she could make without incurring harm or detrimental consequences. "Agreement" signals that there is specificity in what is agreed--the person agrees to something in particular. The agreement is to a specific sexual activity, at a specific time, with a specific person, and it is revocable. Finally, the agreement must be communicated or it will be legally ineffective to give the other person permission to engage in sexual touching. Communication may consist of either words or conduct but must be express, explicit, and unambiguous.

When consent is defined as the communication of express voluntary agreement, neither passivity, submission, silence, nor refusal constitutes consent for the purposes of proof of the actus reus. Facts that show the complainant was passive, submitted, said nothing by means of either words or gestures, or refused to comply with the assailant's requests do not show that the complainant voluntarily agreed to anything. It is an error of law to find consent in the absence of evidence of actual words or conduct by the complainant which constitute express communication of voluntary agreement. As a matter of law, a defense of belief in consent is not available to the accused and therefore may not be considered by the trier of fact, unless the accused can point to specific words or actions by the complainant which communicated agreement to the activity in question, with him, at the time in question. An assailant who seeks to rely on the defense of belief in consent in the absence of such evidence, is liable to be convicted on the ground that his evidence in defense is tantamount to an admission that he committed the actus reus and that he did so with knowledge of the absence of the complainant's consent.

Various scenarios could be examined. The value of the definition of consent as "voluntary agreement" is best appreciated, however, when it is seen at work in the fact-rich and sometimes challenging context of decided cases. The reasons for judgment by the Supreme Court of Canada, in the series of cases examined and discussed below, demonstrate the analytic power and functionality of the definition.

Practical / political significance of affirmative sexual consent

To lay a foundation for discussion of the legal elements of the affirmative sexual consent requirements in Canadian law as established at common law and by statute, we need to be clear about the practical and political significance of these requirements as they operate in concrete social contexts. We need to ask "Isn't consent just...

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