Negotiating Sex: The Legal Construct of Consent in Cases of Wife Rape in Ontario, Canada

Abstract

In 1983, the “marital rape exemption,” which afforded legal and social immunity to husbands who raped their wives, was abolished from the Canadian Criminal Code. This article explores the extent to which changes in the legal response to marital rape, which this amendment purported to reflect, have affected the lived realities for defence lawyers and Crown attorneys and, by extension, women who experience rape/sexual assault in their marriages or intimate sexual relationships. This article is the result of broader research that I conducted in which I examined how cases of wife/partner rape are constructed and practised by key actors in the Ontario criminal justice system. My research marks the first empirical study on wife/partner rape in Canada that is not only based on an analysis of reported cases but also on the manner in which criminal lawyers practise and construct these cases. In my research, I sought to “go behind the scenes” of the cases to discover what goes on during wife rape trials. Drawing on interviews with key criminal justice actors (Crown attorneys and defence counsel in Ontario), I examined how they analyze, think about, and process wife rape and how they view and conceptualize various themes and concepts that characterize the act.

Based on my analysis, I argue that wife/partner rape is informed by societal and cultural beliefs about sexuality, intimate relationships and marriage, and rape myths. A dominant theme that emerged in my interviews is the role of consent in cases of wife/partner sexual assault. As this article illustrates, this concept plays a leading role in the way such cases are constructed by the interviewees. Their narratives revealed difficulties with acknowledging concepts of “non-consent,” given the nature of marriage and the association of consent with love, sex, intimacy, familiarity, sexual history, and couples’ personal language. Although the legislation says quite the opposite, my findings demonstrate that key justice system players themselves presume consent to sex in intimate relationships, which, in turn, shapes the way these players construct and litigate wife rape.