Implied Consent & Sexual Assault: Introduction

Abstract

In R. v. Ewanchuk, the Supreme Court of Canada held that sexual touching must be accompanied by express, contemporaneous consent. In doing so, the Court rejected the idea that sexual consent could be "implied." Ewanchuk was a landmark ruling, reflecting a powerful commitment to women's equality and sexual autonomy. In articulating limits on the circumstances under which women can be said to "consent" to sexual touching, however, the decision also restricts their autonomy - specifically, by denying them a voice in determining the norms that should govern their intimate relationships and sexual lives. In Implied Consent and Sexual Assault, I argue that women should have the autonomy to decide whether, and under what circumstances, sexual touching can be appropriate in the absence of express consent. Though caution should be exercised before resurrecting a limited doctrine of implied consent, there are reasons to think that sexual assault law could accommodate a doctrine without undermining the sexual autonomy or equality rights of women. In reaching this conclusion, I challenge widespread beliefs about autonomy, consent, and the objectives underpinning the offence of sexual assault in Canada. Drawing upon a range of contemporary criminal law theorists and feminist scholars, I reconsider the nature of mutuality in a world dominated by gender norms, the proper scope of criminal law, and the meaning of sexual autonomy.

Note: A brief excerpt from the Introduction to my forthcoming book, Implied Consent and Sexual Assault, reproduced with the kind permission of McGill-Queen's University Press.

Keywords: Sexual assault, consent, criminal law, criminal law theory, philosophy, Canadian law, statutory interpretation, feminist legal theory, autonomy, agency