Jack and Jill go to law school... (Jack should pay attention.)

An argument, not too long ago:

- "The accused could not raise the defence of mistaken belief in consent because he had failed to take reasonable steps to ascertain whether the complainant was consenting.

- "The complainant did consent. She willingly followed him to his place...

- "BUT THAT DOESN'T MEAN SHE WANTED TO SLEEP WITH HIM!

- "It was 2 in the morning...

- "It still doesn't mean anything!"

*sigh*

***

The argument above (which genuinely took place) is symptomatic of two problems with the application of the criminal law of sexual assault.

First, it shows a very frustrating lack of understanding, among lawpeople, of the distinction between the notion of "consent" to sexual activity, and of "mistaken belief in consent".

Secondly, it constitutes evidence that far too many people still entertain sexist attitudes towards sexual assault, sexual offenders and sexual assault victims. Such beliefs are sometimes, as we'll see later on, borderline delusional, and unfortunately, endorsed by law students, law professors, lawyers and *ugh* judges.

***

The argument excerpted above arose over a hypothetical about sexual assault and, more precisely, about the so-called defence of "mistaken belief in consent".

It involved a man (let's call him Jack) who meets a woman one night (we'll call her Jill). They have drinks and start chatting. The conversation quickly turns to sex, and both people describe various sexual acts. At about 2 am, Jack and Jill decide to go to Jack's place. When they get there, there's a second man (say, Joe) waiting for them. Jill feels uncomfortable and repeatedly asks Joe to leave. He refuses. Jill is scared and eventually submits to the sexual acts Jack and Joe ask her to perform. Jill files a complaint, and Jack and Joe are charged with sexually assaulting Jill.

The question is: Can the accused raise the defence of "mistaken belief in consent"?

***

First, a little legal background...

In order for a person charged with sexual assault to be found guilty, the Crown must prove beyond reasonable doubt certain facts that constitute the material components of the culpable act (i.e. the actus reus) and the facts that constitute the intentional components of the crime (i.e. the mens rea).

Thus, the essential elements of the actus reus for the offence of sexual assault are the following:

• The accused applied a force on the complainant (any type of touching, albeit very slight);
• The force was applied in a sexual manner, or the touching had a sexual connotation (notwithstanding which part of the complainant's body was touched, or which part of the accused's body touched the victim);
• The victim did not consent to the touching (i.e. she subjectively did not want the touching to happen).

The mens rea, or culpable intention, for sexual assault only has one element. Here, the Crown only needs to prove that the accused knew that the complainant was not consenting. (The Crown's burden will also be fulfilled if it is established that the accused was reckless or wilfully blind as to the possibility that the victim was not consenting.)

Once the Crown has proven all the elements of the actus reus and of the mens rea beyond a reasonable doubt, the accused will be found guilty unless he can negate one of these essential elements.

That's what is meant in this case by "defence".

The two most common defences with respect to sexual assault (besides, of course, "I never touched her") are the defence of consent and the defence of mistaken belief in consent. In the former case, the accused will try to negate the victim's non-consent, by adducing evidence that she had in fact consented to the sexual activity. In the latter case, the accused will seek to demonstrate that he sincerely thought that he believed that the complainant had consented.

For the defence of mistaken belief in consent to be admissible, the accused's belief must be sincere, and based on reasonable grounds. Moreover, an accused can't invoke it when his belief arises from his voluntary intoxication, or when he did not take any reasonable steps to ascertain whether or not the complainant consented.

That's not too complicated, right?

Yet, many people who approach sexual assault cases similar to the hypothetical above tend to confuse the two defences. For instance, an accused will say "she was consenting, because she went to my place late at night, and earlier on we had talk about sex together".

This is often - mistakenly - labelled as a defence of consent. It's not.

Consent is a subjective notion. The only one who can testify as to whether the complainant had consented to the acts are the complainant herself. It's an inquiry into the complainant's mind. If the trier of facts finds her testimony to be credible, he must conclude that no consent was given.

As the late Lamer C.J.C. once clearly explained:

[T]he issue of mistaken belief in consent should also be submitted to the jury in all cases where the accused testifies attrial that the complainant consented. The accused's testimony that the complainant consented must be taken to mean that he believed that the complainant consented.

R. v. Bulmer, [1987] 1 S.C.R. 782, at par. 24.

[Emphasis added.]

Thus, when the accused (or another witness for the defence) claims that the victim had consented to the acts because she followed him home, or she was drunk, and whatnot, we're not talking about what was going on in her mind at the time. We're going through the accused's own reasoning about what he perceived to be the complainant's mindset.

It might not seem to be of great importance at first glance, but if you were raped and your assailant got away with it, would you prefer that the judgment say that you had in fact consented, or that he was just stupid and made a mistake.

While I find the latter possibility appalling, I must acknowledge that stupidity is not - yet - a criminal offence. On the other hand, being told, despite your testimony to the contrary, and all the troubles you've gone through to bring your attacker to trial, that you had in fact consented is paternalistic and incredibly insulting.

***

The second thing that pisses me off regarding how (far too) many people discuss sexual assault is that they view it from a fundamentally patriarchal and heterosexist standpoint.

The current state of the law of sexual assault in Canada, when it comes to the issue of consent, is clear: consent is an essentially subjective notion, and, not only does "no means no", but "only yes means yes".

Therefore, even though, in a court of law, the Crown still has to establish the victim's non-consent (instead of the accused having to establish that the complainant had consented), the law does not assume that the default state of a woman's mind towards sexual activity is a big fat, unequivocal "yes".

In other words, the law does not treat women as if we were walking around in a state of perpetual consent - to anything, anytime, with anyone. *shrug* Thus, unless a woman expresses her consent to sexually activity (by unequivocal words or conduct), the iniator of the sexual activity in question must take reasonable steps to ascertain whether the woman actually consents.

Otherwise, if the woman was not, in fact, consenting, the initiator could not invoke the defence of mistaken belief in consent.

Still with me?

So this is how it works - well, in theory, that is...

But in practice, judgments tend to stray from this pro-feminist reasoning, and revert to the use of sexist premises to infer either consent or a mistaken belief.

For instance, my interlocutor, in the discussion excerpted above, readily assumed that the fact that a woman talks about sex with a man, and willingly follows him to his place late at night necessarily implies that she had thereby given him permission to engage in whatever sex acts he might think of.

This reasoning also implies that all women would want sex with any man, in any conditions, at all times, and that all women are heterosexual.

Well, uh um... *puts on white lab coat and nerdy glasses* Strong empirical data collected from millions of women around the globe for a gazillion years has shown that these premises are not true.

I know. What a shocker. The fact is that inferences such as this one are simply fundamentally sexist.

Take the same situation, but replace Jill with a Joe.

So Jack meets another guy, Joe. They have drinks. They talk about sex. Joe follows Jack to his place, at 2 in the morning. If Jack then sexually attacks Joe, will anyone really make the argument that it's obvious that Joe had consented, because he had a prior discussion about sex with his assailant, and had willingly followed him to his place at night?

No. Because our patriarcal society does not assume that men are sexually available to other men on a permanent basis. Patriarchy would intrepret the relationship between Jack and Joe as asexual and friendly, in a frat-boyish way.

Patriarchy, on the other hand, presupposes that men and women cannot interact in a way that is simply asexual and friendly. If a woman responds to the attention of a man by doing anything short of yelling at him to stay away from her, or slapping him, then she necessarily has some womanly sexual feelings for him.

Patriarchy does not take into account that women are not sex-bots, that we have free will and individual preferences. A patriarcal interpretation of the law of sexual assault on the first "Jack and Jill" hypothetical does not take into account, for instance, the fact that Jack had bad breath and greasy hair, that Jill was menstruating or that she had forgotten her pill that day.

Nor does it take into account the proven fact that women do often talk about sex in a sometimes quite frat-boyish sort of way, and that, being free of their movements and not submitted to a Gileadean curfiew, they are free to be out of their home at night and visit whomever they like.

And patriarchy being concerned about the preservation of male privilege, it does not place the onus on the male initiator to go beyond those sexist assumptions, challenge the myth of female sexual availability and simply make sure that she really agrees to engage in the sexual activity in question.

Is this really so much to ask?

(For the record - and before being labelled as a man-hater - there are plenty of men out there who are considerate and man enough to make sure their partner is as willing as they are, and who frown upon their fellow males who don't.)

***

I think it would be interesting to see how sexual assault cases involving a lesbian victim and a male accused, and where the defence of mistaken belief in consent was invoked, were treated by the courts.

Unfortunately, I haven't found any so far. (Help, anyone?)