Abstract

http://ssrn.com/abstract=2265526
 


 



Judges and the Reasonable Steps Requirement: The Judicial Stance on Perpetration Against Unconscious Women


Elizabeth A. Sheehy


University of Ottawa - Common Law Section

2012

Sexual Assault in Canada: Law, Legal Practice and Women’s Activism, Elizabeth Sheehy, ed., University of Ottawa Press, June 2012

Abstract:     
In this section, Elizabeth A Sheehy’s contribution focuses on one important feature of the 1992 feminist-inspired law reforms — the new “reasonable steps” requirement for the “mistaken belief in consent” defence. Her paper picks up on the themes of resistance to rape law reforms, evocation of rape mythologies, and the misuse of “expert” evidence. She reviews the legal interpretation of the revised “mistake of fact” defence, identifying judicial resistance to its implementation and the subtle re-emergence of rape myths in judges’ willingness to accept “mistake” defences when the complainant is unconscious. Like Lucinda Vandervort in Part I, Elizabeth urges Crown prosecutors to exercise vigilance to ensure that sexual assault law is interpreted consistently with its aims. To do so, they must challenge “expert” evidence introduced by defence on the question of women’s states of consciousness, remind judges of the “reasonable steps” requirement, expose rape myths embedded in defence arguments, and appeal decisions where judges mistakenly apply or fail to apply the requirement.

Number of Pages in PDF File: 58

Keywords: feminist-inspired law reforms, reasonable steps requirement, mistaken belief in consent defence, rape law reforms, resistance to rape law reforms, rape mythologies, misuse of expert evidence, mistake of fact defence, sexual assault law, women

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Date posted: May 16, 2013  

Suggested Citation

Sheehy, Elizabeth A., Judges and the Reasonable Steps Requirement: The Judicial Stance on Perpetration Against Unconscious Women (2012). Sexual Assault in Canada: Law, Legal Practice and Women’s Activism, Elizabeth Sheehy, ed., University of Ottawa Press, June 2012. Available at SSRN: http://ssrn.com/abstract=2265526

Contact Information

Elizabeth A. Sheehy (Contact Author)
University of Ottawa - Common Law Section ( email )
57 Louis Pasteur Street
Ottawa, K1N 6N5
Canada

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