A question of consent

By CBA/ABC National December 10, 201410 December 2014

"The sexual assault trial is always about the woman."

A question of consent

Licensed by Garry Knight under Creative Commons (CC BY-SA 2.0)

A number of recent high-profile allegations against Jian Ghomeshi, Bill Cosby and Woody Allen, the raging discussion of rape culture on campus, and the creation of the powerful hashtag #beenrapedneverreported have sparked a national conversation about the state of sexual consent and assault in Canada. Elizabeth Sheehy, University of Ottawa Law Professor and winner of CBA’s 2013 Ramon John Hnatyshyn Award for Law, has spent much of her career working on topics such as wrongful convictions and issues affecting women and the criminal justice system. National magazine interviewed Sheehy on the topic of sexual consent.

National: What is the legal definition of sexual consent?

Elizabeth Sheehy: The statutory law says that it’s voluntary agreement to engage in the sexual activity in question. So it’s voluntary agreement with respect to specific sexual contact.

N: Is there such a thing then as implied consent?

ES: No. the Supreme Court in Ewanchuk explicitly rejected any such concept. Currently in Canada we have an affirmative consent standard. Our courts have left open the possibility that consent can be indicated otherwise than verbally, so the complainant can indicate her consent in other ways.

But in terms of an accused who wants to argue “okay, well maybe she didn’t consent but I thought she did,” that person has to be able to identify what they relied upon as either words or actions that demonstrate consent. They cannot rely on silence or passivity or failure to resist as indicating consent, which is why we call this an affirmative consent law.

You’ve got to identify what she did or said that indicated she was agreeable, that she was voluntarily agreeing to this conduct or contact. And if the person wants to argue mistake of fact he has to be able to identify the reasonable steps that he took to ascertain consent in all the circumstances.

So he can’t simply say “whoops I made a mistake, I thought she was agreeing and well I guess she wasn’t.” He’s going to have to point to first off “these are the actions or words I rely on,” and second, “here’s the reasonable steps I took to make sure that she was consenting.”

N: Are there other limits to what constitutes consent?

ES: You can’t consent in advance because consent is an interaction that occurs in live time: you can’t say I will consent in the future, that’s not effective consent. The person must agree at the time that this is what they agree to, they are entitled to withdraw their consent or they’re entitled to say “I consented to this but not to that,” and they certainly can’t give advance consent for unconscious sexual interaction.

N: What about when alcohol is involved?

ES: Well, the legal standard is ‘incapable of giving consent’ and I would say here that our jurisprudence is not all that clear on what we mean by that, and even if it were, you’re still going to be in this grey zone of ‘okay, who witnessed what?’ Unfortunately a lot of the work that I’ve done on case analysis is on the issue of sexual assault on unconscious complainants and it’s a huge area of perpetration. Huge.

I would love to see police stats on how many of the women who report were unconscious, whether through alcohol, drugs, medication, sleep, or some combination. But it’s a very tough area because the woman doesn’t have a story. All she says is “at some point I passed out cold, I remember nothing until I woke being penetrated”, and it’s chilling.

N: It seems clear that in that case she did not consent.

ES: I start my book chapter on this topic by saying ordinary people would say of course she didn’t consent, if her first memory of what’s happening is she wakes up to being penetrated, what’s the problem here? Well the problem is that lawyers have made it really, really complicated and lots of people appear willing to believe that she might have done something while unconscious to suggest consent or that she might have consented but she was so drunk she doesn’t remember that she did.

I mean I’ve seen cases where the complainant vomited all over and the accused has still gone ahead and claimed “she was still awake so I thought she was agreeing”.

N: If a person didn’t say yes or no, and just froze, where does that fall in terms of consent?

ES: If the person didn’t participate or enthusiastically agree and was just passive, then I think the law is very clear on that one: that is not consent but rather someone who basically passively acquiesces. But the issue will be whether a judge or jury believes her or him. 

And the Supreme Court of Canada has said in Ewanchuk, if the basis for that belief is that you thought that acquiescence, passivity or silence amounted to consent then that is actually a mistake of law or an error of law for which there is no defence.

N: Why do we struggle so much with this notion of consent in law?

ES: The problem in these cases is that ultimately this goes before a trier of fact and then it’s that woman who is tested. It’s really not the man being tested even though the reasonable steps requirement is an effort to make men be accountable by having them demonstrate what they did to make sure that she agreed. The sexual assault trial is always about the woman.

It’s one of the few areas of law where the doctrines have been rendered extremely complicated and where prosecutors are extremely disadvantaged.  If you take welfare fraud, or even theft, it’s very easy for judges and juries to presume that they intended to do what they did, that the person intended to deceive or intended to receive benefit beyond what they were entitled to.  But when it comes to men committing rape or sexual assault, it suddenly becomes a highly, highly complicated issue where every benefit of the doubt is actually given to the accused in a way that is not given to many others accused of crime.

N: Do you think our laws surrounding sexual consent need to change?

ES: I don’t know if the law itself needs change, although in my book chapter on the reasonable steps requirement I do highlight some issues that need to be addressed. But I do think that many of the changes need to come from changes in police practices, changes in prosecutorial practices, limits being put on defence lawyers in terms of some of the strategies that they are freely able to invoke and judicial practices. So those aren’t necessarily changes in the law as much as changes in its implementation.

Elizabeth Sheehy’s book, Sexual Assault in Canada: Law, Legal Practice and Women’s Activism is available on Open Access.

*This interview has been edited and condensed.

Katya Hodge is a writer and editor for National magazine.

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