Marital Rape, Polygamy, and Prostitution: Trading Sex Equality for Agency and Choice?
(2013) 18:2 Review of Constitutional Studies 161-187
Posted: 6 Feb 2014
Date Written: 2013
In this article, the author considers three cases in which criminal laws apply to gendered harms: sexual assault, polygamy and prostitution. The first of these, the Supreme Court of Canada's decision in R v. JA was framed as being about the legal recognition of advance consent to sexual activity while unconscious. While the Court reached a positive result for women in rejecting this doctrine, it did so in a way that obscured the realities for women of domestic violence and sexual assault in spousal relationships. Instead the case was framed by both sides in the language of choice, agency and autonomy. The author argues that similar tensions are present in the Charter challenges to the criminal laws on polygamy and prostitution. In the Polygamy Reference, the BC Supreme Court was unconvinced by evidence of individual choice, instead focusing on the gendered harms of polygamy as practiced. In Bedford, the Ontario Court of Appeal treated prostitution as a question of women's individual choice, leading to a focus on the locations in which women choose to prostitute rather than choice of men to buy sex or the inequalities that drive women into prostitution. The author argues that all of these practices should be understood as causing gendered harms that can justify legal intervention to address them.
Keywords: Canada, Criminal Law, Rape in marriage, Polygamy, Equality, Crimes against Women, Prostitution
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