Academic journal article Review of Constitutional Studies

Marital Rape, Polygamy, and Prostitution: Trading Sex Equality for Agency and Choice?

Academic journal article Review of Constitutional Studies

Marital Rape, Polygamy, and Prostitution: Trading Sex Equality for Agency and Choice?

Article excerpt

Introduction

The Supreme Court of Canada in the 1990s recognized in a number of cases that sexual assault law, and the criminal trial process in sexual assault cases, must be understood through the lens of the right to sex equality guaranteed by s. 15(1) of the Charter. Led by Justice L'Heureux-Dube, (1) but joined by other members of the court, the Supreme Court issued a series of decisions affirming that non-consent for the purposes of the actus reus is to be measured according to the complainant's state of mind; (2) that a mistaken belief in consent requires evidence that consent was affirmatively communicated as well as evidence of reasonable steps to ascertain consent; (3) that restrictions could be placed on access to private records in the hands of third parties; (4) and that the right to make full answer and defence does not require abuse of the complainant on the witness stand or the reliance on myths and stereotypes about sexual assault. (5)

These decisions reflected and reinforced legislative amendments designed to counteract historical myths and stereotypes about women who complain of sexual assault. (6) These amendments were drafted after consultation with the women's anti-violence movement and feminist scholars. It would take the argument too far to claim that these understandings were universally held or even always applied by the Supreme Court in its judgments. (7) Nonetheless, these were important jurisprudential advances that in turn contributed to shifting social understandings about sexual violence. (8) What is more, scholars and activists identifying as feminists were, for the most part, unified in their support for these developments and united in their criticism when things went awry. (9)

The criminal laws relating to prostitution have not had a similar history. With a few notable exceptions, courts have generally failed to make the link between the prostitution industry and women's inequality. (10) Where inequality has been raised, the response has generally been that the protection of women was not part of the government's objective in passing the criminal laws that effectively prohibit prostitution. (11) Courts have also largely ignored the formally unequal reality that prostitution laws criminalize both prostitutes and their buyers, but are mostly applied against the former group, who are predominantly women, poor, racialized or Aboriginal.

Many Canadian women's groups argue that the abolition of prostitution is a necessary precondition of equality for women and have come to support a legislative response of asymmetrical criminalization targeting male buyers, pimps, and profiteers. (12) This legal response would be buttressed by measures to discourage male demand and provide livable incomes to those currently reliant on prostitution. However, other groups and individual women have advanced arguments in favour of the total decriminalization of prostitution in the interests of what they consider to be the majority of women who freely choose prostitution, as well as the minority who do not. In this analysis, prostitution is understood not as a practice of sex discrimination, in which a woman earns income through being sexually harassed, but as a form of "sex work" that should be treated in law as a form of employment. (13)

   A similar split can be observed on the issue of polygamy. Polygamy,
   like prostitution and sexual assault, is highly gendered and is
   almost always practised as polygyny. On the other hand, it is both
   less common than sexual assault and prostitution, and is interwoven
   with claims of religious freedom. The lack of judicial involvement
   with the criminal prohibition on polygamous marriage means that the
   courts have not led the discussion of the relationship of polygamy
   to both male supremacy and women's inequality. In the arenas of
   scholarship and advocacy some have argued that polygamy is a
   practice of sex discrimination, while others have argued that
   polygamy itself is not invariably problematic for women and may
   offer some benefits. … 
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