Affirmative Sexual Consent in Canadian Law, Jurisprudence, and Legal Theory

Article excerpt

Abstract

This article examines the development of affirmative sexual consent in Canadian jurisprudence and legal theory and its adoption in Canadian law. Affirmative sexual consent requirements were explicitly proposed in Canadian legal literature in 1986, codified in the 1992 Criminal Code amendments, and recognized as an essential element of the common law and statutory definitions of sexual consent by the Supreme Court of Canada in a series of cases decided since 1994. Although sexual violence and non-enforcement of sexual assault laws are worldwide phenomena, the international scholarly literature reflects limited awareness of these developments in Canadian law. This article remedies that gap in the literature. The Canadian experience with the definition of sexual consent as communicated "voluntary agreement" demonstrates the value of this conceptualization of consent; the definition provides a well-defined set of nondiscretionary reference points for legal analysis of the facts in sexual assault offenses. The effect is to facilitate effective enforcement of the sexual assault laws and affirm the right to sexual autonomy, sexual self-determination, and equality, consistent with fundamental principles of individual human rights. For all these reasons, familiarity with the Canadian experience may be useful to those engaged with the reform of rape and sexual assault laws in other jurisdictions.

INTRODUCTION

This article examines the development of affirmative sexual consent in Canadian jurisprudence and legal theory and its adoption in Canadian law. Requirements for affirmative sexual consent, or communicated voluntary agreement, were explicitly proposed in Canadian legal literature in 1986, (1) codified in the 1992 Criminal Code amendments, (2) and recognized as an essential element of the common law and statutory definitions of sexual consent by the Supreme Court of Canada in a series of cases decided since 1994. The international scholarly literature reflects only limited awareness of these developments. This article fills that gap in the literature.

The Canadian experience with the definition of sexual consent as communicated "voluntary agreement" demonstrates the value of this conceptualization of consent; the definition has proven to be robust. It provides a powerful and well-defined set of nondiscretionary reference points for legal analysis of the facts in sexual assault offenses. The effect is to facilitate effective enforcement of the sexual assault laws and affirm the right to sexual autonomy, sexual self-determination, and equality, consistent with fundamental principles of individual human rights. For all these reasons, familiarity with the Canadian experience may be useful to those engaged with the reform of rape and sexual assault laws in other jurisdictions.

There are many similarities among experiences with sexual assault laws in jurisdictions worldwide. Law enforcement often fails to fulfill the promise of law reform initiatives undertaken to reduce the high incidence of sexual assault and increase the levels of reporting and prosecution. (3) This has also been the experience at the grassroots or local level in Canada, despite progressive developments in the law at the national level. Statistics show that most sexual assaults in Canada are committed by someone known to the assailee, (4) yet non-stranger assaults are the least reported and most seldom prosecuted form of sexual assault. (5) These are hardly new phenomena. Non-stranger sexual assault has long been an under-recognized and under-acknowledged category of sexual violence in Canada.

That stands in sharp contrast to the law. National legal standards for the interpretation and application of the sexual assault laws enacted by Parliament have been established by the Supreme Court of Canada in a series of cases over a period of two decades. The definition of consent codified by Parliament in the 1992 amendments has proven to be robust. …

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