1. Sexual assault: consent, "rape shield", and mistake

Warning: this session will include discussion of sensitive issues.

For much of Canadian legal history and indeed the history of many legal systems the law was stacked against victims of sexual assault. For example, a rape victim needed corroboration from another witness, an almost impossible threshold, what is more based on the notion that rape victims might be less than truthful. There are perhaps few areas of criminal justice that have undergone as much transformation as the law of sexual assault. More generally, that area of the law stands as a reminder that the criminal justice system is one through which fundamental claims about identity, integrity and discrimination are constantly being made. Through the prosecution (or the non-prosecution) of sexual assaults, powerful messages are sent, in particular, about gender.

The move from the old notion of rape to a broader concept of "sexual assault" is one example of the change involved. It tends to normalize sexual assault as having less to do with sex than with the violence one normally associates with non-sexual assaults. It also reduces the hurdles for the prosecution. However, it is not without its critics as potentially trivializing penetrative sexual violence.

Another very significant evolution in sexual assault law is the reinforcement of the distinction between the actus reus and the mens rea and the realization that in this specific context it has fundamental implications for victims. Unusually, the actus reus includes a mental element since what is required is sexual touching without the consent of the victim. The absence of consent of the victim constitutes the actus reus of sexual assault, regardless of what the accused thought about it. In other words, thinking that there is consent does not make it so. In addition, a victim might not be really consenting even if she superficially does. What matters is if she really consented or not. Note that consent will be excluded by law if, for example, it was obtained by fraud or the complainant was incapable of consenting to the activity. Consent can be withdrawn at any time.

It is only then that one examines the mens rea of the perpetrator, specifically as it relates to the question of consent. Whilst it is understood that an honest belief as to consent may exist, Parliament in Canada has also been keen to restrict the conditions under which such a belief could be alleged. In order to invoke a sincere mistake as to consent, the defense will need to have an "air of reality".
Class preparation
  • Stanford Encyclopedia of Philosophy, Feminist Perspectives on Rape, First published Wed May 13, 2009; substantive revision Wed Aug 14, 2013
  • Sections 265-266, 271-273 and 276-277 of the Criminal Code
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