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?)

The Village where Men are Forbidden

The video below is an excerpt of Umoja, le village interdit aux hommes. This film is a document about a village in Kenya founded by women who have been repudiated by their husbands or cast out of their community because theyr have been raped.

Finally, an intelligent film with ... um... bite?

There's a new film coming up called Teeth, that sounds really interesting and that I'd really like to see (that is, if and when it's released in Canada).

It's the story of Dawn, an introverted high school student, who, as a typical female teenager, feels awkward about boys, dating, sex and her own body. Dawn tries to deal with her contradictory feelings by being part of some abstinence club, and keepings things platonic with her boyfriend.

The twist is that, when he attempts to sexually assault her, she discovers that her vagina actually has teeth, which leaves her boyfriend in a sorry state and herself in possession of an unexpected weapon against male violence.

From the reviews I have read so far, this "horror comedy" is a pretty good commentary on sexual education politics, male attitudes towards female sexuality, and women's relation with their bodies:

"If you get over the rather distasteful subject matter and focus on what's beneath the surface, you'll find a flick that's got a whole lot to say about young women and their fear of burgeoning sexuality, society's general distaste (and, let's face it, fear) of the female sex organ, and the ways in which men do a serious disservice to womankind by treating their "naughty bits" as if they're something to be ashamed of. Teeth covers all this ground (and a whole lot more), and I suspect it's more open-minded and honest than most of what passes for "sex ed" these days. This movie offers enough meaty subtext to fill three semesters and it does so in a shocking, humorous and strangely compassionate fashion.

...

"I'm of the opinion that audacity is something to be admired in today's cinematic world, and Teeth has audacity to spare. Fortunately for the brave movie-watcher, the film is also very smart, slick and entirely unashamed to throw a few nasty shocks into the equation ... if that's what it takes to get the point across. As Dawn begins to realize that her privates possess a decidedly unsavory set of dental features, the phrase "sex as a weapon" begins to take on a whole new meaning. Lichtenstein bravely refuses to shy away from the sticky questions and icky repercussions, which elevates Teeth beyond the label of "interesting curiosity" and right into the realm of 'brazen brilliance.'"

(Click here for the full review.)

Teeth was shown at the Berlin Film Festival 2007, and at the Sundance Film Festival 2007, where actress Jess Weixler (who plays the lead role) won the Special Dramatic Jury Prize for Acting.

***

Here is the trailer:



The only thing that makes me tick with this film is the fact that its trailer calls it a "cautionary tale for men."

Why would it be? Because hurting women is OK? Because our ladyparts are, indeed, weird and dangerous? *sigh*

"Snow White"

Below is a very moving excerpt from a post at Marginal Notes:

"I used to love reading fairy tales when I was little...didn't everyone?

"Snow White, Sleeping Beauty, Cinderella...

"All suffered at the hands of other women and were saved by the fairy-tale love of a man.

"How different real life is from the fairy tales...

"Most of us suffered at the hands of men. At least, I did.

"Once I lay unconscious in an emergency room, hooked up to a heart monitor. A nurse asked my mother, "Has your daughter been raped?" My mother was shocked, but answered, "Yes...but why do you think that?" The nurse told her that every time a male doctor went near me, my heartbeat changed.

"How do you undo wounds that leave you vigilant even when unconscious?"

Go read the whole thing.

Opposite perspectives on sexual assault

Recently in the UK, Conservative MP David Cameron called for more support for sexual assault victims, both at the pre-trial and trial stages, and for "proportionate", i.e. harsher, sentences for rapists. He also requested that the government enact measures to purge society of its "rape culture", so that attitudes and behaviours that trivialize or legitimize sexual assault and the objectification of women be clearly identified as wrong and, to a certain extent, against the law.

Mr Cameron also asked "that the government ... fund public service announcements against rape and cover sexual consent in sex-ed classes."

As Mr Cameron explained:

"It is important that we talk to children, so that years later when they become jurors, they no longer believe the myths of sexual assault: that women and girls are asking for it if they wear particular clothes, or are out late, or are drinking, that it's all their fault."

***

Meanwhile, in Saudi Arabia, a 19 year-old rape victim was sentenced to 90 lashes. Her crime? Being in a secluded place with a man who was not her husband or a relative.

"The young woman’s offense was in meeting a former boyfriend, whom she had asked to return pictures he had of her because she was about to marry another man. The couple was sitting in a car when a group of seven men kidnapped them and raped them both, lawyers in the case told Arab News, a Saudi newspaper.

"The woman and the former boyfriend were originally sentenced to 90 lashes each for being together in private, while the attackers received sentences ranging from 10 months to five years in prison, and 80 to 1,000 lashes each."

The woman's lawyer appealed her sentence, on the ground that it was unusually harsh (the usual sentence for "adultery" being 60 to 80 lashes), and publicly denounced the ruling. As a result, "the court increased the victim’s sentence to 200 lashes and six months in jail", and her lawyer's license was suspended. (He is now facing disciplinary procedures.)

Why the US need to change the legal definition of "consent" to sexual activity

The Georgia Supreme Court recently declared that a sentence of 10 years' imprisonment for sexual assault on a child was unconstitutional, as it was so harsh as to amount to "cruel and unusual punishment".

This case has received more than its share of publicity over the past few months.

The accused in this case was Genarlow Wilson, aged 17 at the time of the events. Mr. Wilson and a few of (adult) friends of his were having a New Year's Eve party in a motel room. They had invited over a number of underaged girls, including the victim, who was then 15 years old. It was reported that the lot had consumed more than their fair share of booze and drugs.

The girls were then sollicited to perform various sex acts on many of the young men present, while their buddies would film the scene. A video showed Mr. Wilson receiving oral sex from the 15 year old girl, so there was no debate about whether or not the sexual activity happened . (Oh, and apparently, the accused subsequently bragged about what had happened at the party at school.)

The video also showed Mr. Wilson having sex on a bathroom floor with another girl, who looked sleepy and was visibly seriously intoxicated at the time. On the video, she did not ask Mr. Wilson to stop (but then again, the video didn't show any verbal interaction between the two.) The 17 year-old girl, who had waken up naked and confused the next morning, immediately reported the events to the police, and claimed that she had been raped.

Eventually, Mr. Wilson was charged with aggravated child molestation, found guilty and sentenced to 10 years' imprisonment. Now, the big debate in the media was about the fact that this offence, in its legal definition, did not take into account the fact that the 15 year-old victim was "consenting", that the victim and the accused were so close in age, that it was "just" a fellatio, and that the accused was a promising athlete and a "good boy".

(The State of Georgia, subsequent to the outcome of this case, changed the formulation of the offence so as to take the victim's "consent" into account.)

I have a few issues with the media treatment of this case, and with the recent quashing of Mr. Wilson's sentence.


First, I would just like to clarify that, although I agree with the Conservatives' proposition that the age of consent to sexual contact with adults be raised from 14 to 16, I also think it's stupid to seek to criminalize sexual contacts among (consenting) teenagers. Let's face it: when you're 16, horny and a just typically rebellious, you're gonna have sex if you want to, whether your parents, the local clergyman, your teachers or the law say otherwise.

However, sexual contacts, even among teenagers, must always be consensual.


Secondly, some people seem to be labouring under the delusion that when there's no penetration, when it's "just" a fellatio, it's really not that bad, and the situation should not give rise to criminal charges. Well, if that's your opinion, you're wrong. If you can't understand why having some drunken guy's cock shoved down your throat is morally wrong enough to be criminalized, then quit reading now.


Thirdly, it's no secret that most American jurisdictions have fucked-up definitions of what constitutes "consent" to sexual activity. While the notion of "consent" colloquially refers to something that a person genuinely wants, or to a free and enlightened decision (such as in health or contractual matters, for instance), "consent" to sexual activity in most American criminal statutes (as well as under the old, i.e. pre-1985, version of our own Criminal Code) is equated to passivity, lack of resistance, and the absence of the use (additional) physical force or the threat thereof.

This way of thinking is stupid and unrealistic. Basically, it means that unless you're beaten or threatened and you attempt to (physically) resist the assault, you will be deemed to have consented to having sex inflicted upon you. It completely disregards the fact that, as in this case, a person will not protest or resist because she is smaller than her assailants, outnumbered, confined, scared, or intoxicated. In situations such as those involved in the Wilson case, most females would not be foolish enough to think they can simply walk away or refuse to perform the acts, so that most criminally-inclined males would not have to resort to additional physical violence anyways.

St. Maria Goretti might have become a saint for choosing the opposite route, but most women do not envy her fate.

(Why to I keep saying "additional" physical violence? Um... It might have to do with the fact that having someone madly thrust inside you against your will is already violent and painful enough in and of itself.)

In my opinion, even if Mr. Wilson had been charged under the new version of the offence and that the victim's consent had been part of the equation, he might as well have been found guilty anyways, because it's very likely that the young woman's consent was viciated by the coercitive nature of the circustances.


Finally, even if the prosecution had not been able to prove beyond reasonable doubt that Mr. Wilson's 15 year-old victim had given her free and enlightened consent, he and his buddies should still have been convicted for production, distribution and possession of child pornography.


I say 10 years' imprisonment was not too harsh. It sounds just right to me.

One step forward, one step back...

On the one hand, a post on the omnipresence in pornography of degrading and violent behaviour.

On the other hand, a case digest titled "degrading and rude behaviour not necessarily sexual harassment."

***

So, if a judge says to a female defence lawyer, in open court, that she has a "nice butt", does that constitute sexual harassment? Or is it just "degrading and rude behaviour"?

***

On a related topic, here is an article discussing recent sexual harassment cases in the U.S. and arguing that the fact that the complainants won in those cases is attributable to a "change of climate" in the workplace, in that corporate milieus in the U.S. are becoming increasingly less tolerant towards such behaviour.

The article also includes a list of things you can do if you are sexually harassed in a professional setting.

This is a fine and thorough list, but when you're confronted with someone who physically threatens you, who touches you without your consent, who makes you feel like you're there for his personal (sexual) enjoyment, and when this person is a position of authority or power vis-à-vis you, such that you might lose your job or get dragged in the mud for complaining about the unwanted behaviour, it begs the question: to report or not to report?

As with many other things, it is easier said than done. Not that women lack reasons to come forward. But still... Having to balance the shame, embarrassment and personal risk to one's reputation, with the guilt that the perpetrator might strike again, and prey on another victim, is an unbearable exercise.

***

"See, I don't know what to do.

"I keep having fantasies about leaving her dictaphone under the pillow. Or following her when she goes to work.

"I've been lying about where I'm going, just in case I can bump into her..."

What would you do it was the case? What if your weren't sure it was so? Would you risk everything you have, everything you have become, for the (potentially remote) possibility that someone you don't know might suffer the same fate?

***

In a class discussion on the difficulties created by our legal system that deterred women from reporting sexual assault (among others, the fact that in many circumstances, evidence of a complainant's sexual history will be considered relevant in court, which allows for the victim to be cross-examined on her past sexual behaviour), one of my professors (an older man) boldly stated that reporting sexual assault did not depend on such legal hurdles, but rather on a victim's individual bravery.

He then went on to say that people in Iraq had gone out to vote, even though they were risking their lives in the process. He said that if the Iraqi people who had chosen to vote could be so brave, then why wouldn't sexual assault victims be able to come forward. After all, it is not, he said, as if their lives were at risk.

When I heard that comment, my heart sank. I felt as if he had just called one in four women in the classroom cowards.

Reporting is an individual decision. Not reporting is not an act of cowardice, but rather an attempt at self-preservation.

How porn (and fashion) feeds paedophilic double standards

One of the sexist double standard I hate the most has to do with the practice of shaving one's pubic hair.

The porn, fashion and cosmetic surgery industries like to pretend that it's something natural, that all normal, reasonable and self-conscious women do. Women are constantly bombarded with images of hairless, child-like women.

We are told that having a hairy pubic area is abnormal and ugly. That a hairy vagina is unattractive to men, that it looks old and "unfresh".

The subtitle to these messages is clear, however. Adult, grown-up, full-fledge women are expected to look, as far as their genitals are concerned, as prepubescent girls.

In short, this "trend" is no less than the acceptation by our society of paedophilic sexual preferences, and the assertion that it is acceptable for men to be sexually attracted by the physical features of female children.

***

When it comes to men, however, this reality is not denied at all.

For instance, when the media reported that the infamous recidivist paedophile Peter Whitmore had forced one of his last victims, a 14 year-old boy, to shave his pubic hair, they did not deny that Whitmore's purpose was to make his victim look younger, like a prepubescent child.

Nobody had the nerves to suggest that the gesture was not paedophilic in itself, but that it was just a way for a non-paedophilic, garden-variety, relapse sexual offender to make his victim look more attractive, or "cleaner" to him.

***

Why then is it so hard to acknowledge that the same practice is as unhealthy when it comes to women?

You say you prefer women who are well "groomed" down there? I say fuck you, you paedophile.

***

"But is it a surprise that men who never thought they would do so end up using child pornography? 'Teen porn' Web sites, videos, and magazines abound, showcasing 'barely legal' young women, fully shaved of pubic hair, cavorting in schoolgirl outfits and pigtails. Many of the sites and films are voyeuristic, featuring peepholes intol girls' locker rooms and showers, slumber parties and schoolhouse toilet stalls. In sex scenes, these 'girls' are typically depicted having sex with much older men. And that's assuming the 'teens' are actually eighteen or nineteen years old.

[...]

"The supply exists to serve the demand. There's an illicit, voyeuristic pleasure to the enterprise. There is also a tinge of revenge.

[...]

"The gazer longs for what he could not have long ago and what he certainly cannot have - at least, legally - today. These girls may not actually be underage, and therefore no 'harm' was done to an actual child in creating the pornographic image. But the desire for a child and the desire for a childlike woman blur and overlap."

[Emphasis added]

- Pamela Paul, Pornified: How Pornography is Damaging our Lives, our Relationships, and our Families (New York: Owl Books, 2006), at 198-199.

Withdrawals...

In 2006, the Maryland Court of Special Appeals answered 'no' to the question "If a female consents to sex initially, and, during the course of the sex act to which she consented, for whatever reason, she changes her mind, and the man continues until climax, does the result constitute rape?"

The incident at issue involved an 18 year-old woman who was taken by car, at night, to a secluded location by two vague male acquaintances (both aged 16 at the time). She was first raped by the other accused Wilson (who was eventually found guilty of rape) on the back seat of the car. The accused in this case, Baby, then asked his friend "Will you let me hit it?", referring to the young woman. He then told the victim that he "wouldn't want to rape her." (Baby admitted to making both utterances.) The victim then said "yes" to sexual intercourse with him, on the condition that he pull out if it hurt her (logically: upon her saying so).

Baby then proceeded to vaginally penetrating the woman, thrusting inside her. She then said 'no' and told him to stop, because it hurt. It was admitted in this case, that, at this point, the accused continued thrusting inside her for 10 seconds before he ejaculated and pulled out.

Although Baby was convicted of rape at trial and sentenced to 15 years' imprisonment, his conviction was overturned by the Maryland Court of Special Appeals. The appeal judgment not only rejected the prosecution's argument that the circumstances (e.g. the victim having been raped for a first time moments before, the secluded location, the victim being outnumbered by her assailants, her subjective fear, Baby's veiled threat of additional physical violence) in themselves were coercitive enough to nullify the woman's "consent."

Relying on the Battle case, it went on to say that, when it comes to rape, common law tells us that it's really about the vindication of the loss of a woman's value, as a chattel, to her legal owner, that is to say, her father or husband.

(Uh hum... 'Rings a bell, anyone?)

Thus, the fact that a woman withdraws her consent to sexual intercourse once it has started is irrelevant to whether or not the intercourse amounts to rape, because beyond the initial penetration, once the woman has been deflowered, there is nothing more to lose, and therefore nothing to be further punished.

Pretty depressing, eh?

The good news is that this Middle-Ages ruling has been heard on appeal last week.

Let's just hope that the Court of Appeals will yield to 21st century concepts (such as "women are people too and have their say on the terms and conditions under which they engage in sexual activity") and restore Baby's conviction and sentence.

On the other hand, I'm disappointed that the prosecution's argument seems limited to the assertion that the intercourse constituted rape because "[y]ou clearly have the element of force, you have the resistance by the victim, the victim was quite clear that it was hurting, that she wanted him to stop."

By raising this argument, the prosecution emphasizes the importance of physical coercion and legitimize the requirement that the victim attempted to resist the rape, as legal markers for the victim's lack of consent, rather than focusing on what really matters in sexual assault cases, i.e. the victim's actual, subjective feelings towards the sexual activity.

Sexual assault, as defined under Maryland law, and as acknowledged by the prosecution's argument, is not about punishing the accused's disregard for another person's subjective preference about whether or not she wants to have sex. When the law defines a woman's consent to sexual activity as something else than her own subjective state of mind, for instance, by defining "consent" as lack of "adequate" (read: from a male point of view) resistance, or as passivity or submission, it obviously does not give a damn about whether or not the woman being penetrated is actually willing or not.

In that context, it does not even make sense to be talking about a woman's withdrawing her consent.

What I would have appreciated from the prosecution in the current Baby appeal is a genuine argument to the effect that women, as human beings, deserve the right to decide of the conditions under which they will engage in any type of sexual activity. Men do. (Obviously.) The right to the legal recognition of women's sexual agency is nothing short of a fundamental equality requirement.

For such recognition to be possible, the laws of Maryland must be amended so as to make the legality of sexual acts absolutely conditional to both partners' subjective consent. Therefore, the definition of "consent" as the absence of extrinsic physical violence, lack of sufficient physical resistance, submission, or passivity must be thrown out, and replaced by a notion of "actual consent", which consists of one's own subjective feelings.

***

The Baltimore Sun published an article about the Baby appeal. It's not really informative for those who are not already familiar with the case, given that it considerably distorts the facts of the case.

What is most disturbing though are the comments to the article. They reveal a shocking resistance to the idea that a woman has the right to withdraw her consent to sexual activity, and that doing so does not make her a whore or a liar, nor does it strip her of her rights to vindicate the attempt on her bodily integrity. They also provide a thorough - and disheartening - summary of rape myths and prejudices about women who file complains for sexual assault. (Including the suggestion that the victim is the one who should have been prosecuted for rape, given that she had "lure" two underaged males into sex.)

"Either you want it or you don't. If there is a question mark, say no up front. Or wait. After penetration, unless under violent circumstances, it is just not valid. Bad performance is not rapeor 3/4 of the population would be in jail. And not the providence of 16 year olds. Strangers, sex and liquor are a very poor combination."

"It is asking alot to even think of accusing someone of rape when you let him enter your body and get within five seconds of climax. By the way they should accuse her of raping him because he was 16 and she was 18."

"Anyone who says yes during sex is in a position where they must consent until it is over. Anyone who says yes then no has less sexual credibility. Those with little to no sexual credibility should be barred from the right to file rape charges period. There are real rapes, the West Virginia torture, a woman who is jumped and kidnapped by three men, and similar such situations where the real rapists need to be thrown into prison so that they themselves can be punished severly. Any case however involving a person who cannot make up their mind should automatically be thrown out because whats to stop them from filing a charge of rape over the decision that it was simply bad sex. Real rapes only in the courtroom, no drunks who said yes at one point during the intercourse and no one who engages in other such acts should be given the right to file charges. Rather they need to punish the accusors who go between yes and no during sex with perjury as they are filing false charges for something they allowed to happen."

***

Many people who commented the Baltimore Sun's article seem to share the view that once a man has penetrated a woman, especially if he is approaching climax, loses his capacity to acknowledge her demands that he stops and to pull out immediately. Such people also seem think that a delay of 10 seconds between the moment when a woman, who is being penetrated, says "no, stop, it hurts" and the moment when the man actually pulls out, is actually quite reasonable, and can be easily justified by the handy "getting-near-climax-has-become-unresponsive-jelly-of-lust-can't-hear-you-until-I-get-off" theory.

But it's not only retrograde, misogynistc jerks who adhere to this view. I have had a serious - and quite awkward - discussion about this issue (as it arises in a sexual assault context) with one of my professors, a brilliant mind and a kind man, who sincerely seem to think that sometimes, even 10 seconds are not enough.

In all fairness, being a woman, I obviously don't have a first hand experience of this, but I remain extremely sceptical about the "I-can't-hear-you-I'm-gonna-come" excuse.

What is certain though is that 10 seconds can seem like a lifetime in certain circumstances. Those who have been raped or sexually assaulted very well know this. (For those who have been lucky enough to have never experienced such a situation, here's a thought: paper sheets, an unknown OB-GYN and a metallic, cold speculum.)

10 seconds of unwanted sex certainly qualifies as full-fledged sexual assault.

***

Since the mid-80's, Canada has - in theory, as least - left the Middle-Ages of sexual assault legislation by (1) replacing the gendered offence of "rape" with the neutral one of "sexual assault", and (2) ditching the unrealistic "objective" notion of "consent" (which was similar, under the common law, to the notion of "consent" as it applies in Maryland) with a subjective view of consent that corresponds to the person's subjective state of mind at the relevant time.

Moreover, the Criminal Code now explicitly provides that there is no consent when someone's, having validly given it earlier on, chooses to withdraw it (s. 273.1(2)(e)).

Sexual assault is not about the loss of virginity

This is a sad story.

A few weeks ago, a female student was sexually assaulted when she was working late at night in a lab at Carleton University. Her assailant also severely beat her up, leaving her injured and unconscious, and fled with some of her clothes.

The saddest part of the story is that the victim of this heinous assault has contacted the media in order to "set the record straight" on the fact that she was "not raped". As a matter of fact, the young woman, who is Muslim, wants to make clear that her sexual assault did not involve penetration and that she is still a virgin.

"As part of her culture, being a virgin is very important, and, if, all of a sudden, everybody looks at her and says she's not a virgin, she's a lot less desirable as a wife," said Christine Baker, a sexual-assault examiner at the Ottawa Hospital who has been keeping in touch with the victim.
*

I find it hard to believe that in Canada, women are still feeling that ultimate value as human being depends on their being a virgin until marriage, and on their "marriagebility". I am also deeply troubled by the fact that this woman's declaration suggests that she should have to bear any guilt or uncarable shame because she was sexually "accessed" by a man without her consent.

In addition, her concerns for her reputation as a virgin sadly highlight that no matter how heinous and twisted this crime was, and despite the fact that is no question whatsoever as to her complete and obvious lack of consent (having been beaten to the point of unconsciousness before being assaulted), there are people out there who somehow feel that she should feel responsible for her own "depreciation".

The mere fact that this is happening in Canada, in 2007, shows us that we still have a very long way to go in terms of changing people's attitude towards sexual violence and its female victims. I can't believe that we still seem to be grappling with the concept that women are not chattels, to be sold, exchanged or taken.

***

On another note, it should be noted that the young woman in this case is dead right about one thing: just because a penis did not enter your vagina when you were attacked doesn't mean you have not been sexually assaulted, nor does it make things any "better" for you.

Many people - including, I am sad to say, far too many judges who hear sexual assault cases - are still under the impression that "sexual assault" is a lesser, non-penetrative form of rape, and therefore, a lighter criminal offence. It is not.

Sexual assault consists of any type of sexual touching conducted without the person's consent, when the assailant is aware of the other person's lack of consent. Period. One's bodily integrity is not, in the eyes of the law, ultimately linked to one's virginity.

***

However, a distinction between sexual assault and the abrogated offence of rape has to be drawn. While sexual assault simpliciter is punishable by a maximum of 10 years' imprisonment (if prosecuted by way of indictment) or by a maximum of 18 months' imprisonment (if prosecuted by way of summary conviction), the old offence of rape carried a maximum punishment of life's imprisonment (along, in the good old days, with 50 lashes).

When I hear about extremely violent and wanton sexual attacks such as this one, I'm tempted to say: bring back the lash...

British Government to Require Experts to Testify to Dispel "Rape Myths" in Sexual Assault Trials

http://commentisfree.guardian.co.uk/yvonne_roberts/2007/09/rape_rules_ok.html

Well, that surely is good news. After all, Claire L’Heureux-Dubé can’t always be there to kick misogynistic asses in the courtroom.

"The three year-old whore was asking for it"

According to a news report from Radio-Canada and a survey from the Fondation Marie-Vincent, adults in Québec still carry a lot of harmful prejudices with respect to sexual violence to children.

As a matter of fact, Radio-Canada reported that 1 out of 4 adults believe that a child may provoke a sexual assault through his or her behaviour, that sexual assaults on children generally occur in the streets or at school rather than in a domestic context, and that a child who is sexually assaulted will physically resist or attempt to flee his or her assailant.

The study also reveals that 1 out of 2 adults believe that sexual assaults necessarily involve anal or vaginal penetration.

The Fondation Marie-Vincent emphasized the fact that merely 1 out of 10 incident of sexual assault on a child is actually reported to the authorities.

***

This report remembers me of a sad case where a father was accused of sexually assaulting his three year-old daughter. When he testified at trial, he mortified the Court when he explained how it was really his daughter who had been initiating the sexual contacts, and described her as "very cuddly" and compared her to a "pussycat in heat" ("une p'tite chatte en chaleur").

The man was eventually found guilty.

Double Double - Sentencing Sexual Assault Cases

A 31 year-old woman was recently sentenced to 15 months' imprisonment for sexual assault on a 12 year-old boy. At the time of the events, the boy was dating the accused's daughter. According to her, it was the victim who had started making sexual "advances" to her. The assaults, which ranged to "vigorous" kissing in public to complete acts of intercourse, occurred on a 6 months period, after which neighbouring finally contacted the Youth Protection Services.
In addition to her incarceration, the woman will be subjected to a three-year probation, in which she will have to undergo therapy, and she will be registered as a sexual offender.

I was watching a news report on this case on TV this morning. The anchor called it "une affaire de moeurs" (roughly, "a matter of public morals"), and described the case as a love story between a woman and a much younger man.

***

A curious instance of double standards arises from these facts.

First, the sentencing judge was a lot harsher on this woman than he would have been on a man in the same situation. It's no secret that there is something seriously rotten in the application of the rules on sentencing in Canada, especially when it comes to sexual assault. As a matter of fact, most offenders who are sentenced for sexual assault, i.e. mostly men, are sentenced to a few months' imprisonment, and often get conditional sentence (in which the offender is "imprisoned" in his own home and has to submit to a curfew) where the assault was not "violent" (i.e. where no violence was applied on the victim, beside that which is inherent to the assault itself).

Thus, I find it very surprising that this woman got such a "harsh" sentence. (I know. 15 months plus probation is not nearly enough, when you think of the harm that was inflicted, but believe me, it's considered harsh in Canada).

Secondly, the public reaction to this case and the comments from the media were simply appalling. Had the offender been a 31 year-old man and the victim a 12 year-old girl, I doubt that anyone would have tolerated public displays of sexual touching for so long. And I also doubt that anyone would have described such an exploitative relationship as a love affair, in which the child voluntarily seduced the accused.

***

For further information, here's an interesting article on the issue of the rationalization of sexual exploitation of children by adults.
(I feel morally obligated to render what is due, and admit that I found this article via a post at Ladies Against Feminism.)