IMPLIED CONSENT AND SEXUAL ASSAULT; INTIMATE RELATIONSHIPS, AUTONOMY, AND VOICE
Author: Michael Plaxton
Publisher: Montreal: McGill-Queens University Press, 2015. 280p.
Reviewer: Melanie Clark Mogavero | October 2017
In Implied Consent and Sexual Assault, Michael Plaxton analyzes the complexity of the Canadian sexual assault statute by drawing upon landmark Supreme Court cases as well as the works of legal and feminist theorists. Although Plaxton strictly explores Canadian law, the legal and moral concepts and opinions in this book apply to similar statutes in the U.S. and other Western countries. Through his comprehensive analysis, Plaxton offers compelling support for the inclusion of the (problematic) doctrine of implied consent.
In the Introduction, the author lays out the groundwork for answering the question as to whether the doctrine of implied consent has a role in sexual assault cases. Plaxton draws upon the Supreme Court case, R. v. Ewanchuk (among several others), where the defense introduced the doctrine of implied consent. The concept of implied consent (as noted in Ewanchuk) states that a victim is to have consented to sexual activity if, at the time of the act, she appeared to subjectively consent (whether or not she actually did). The victim and Brian Ewanchuk had a business relationship in which she viewed him as a potential employer, and had only met him the day before the incident in question. The victim consented to non-sexual touching, but when Ewanchuk began to touch her in a sexual manner, she said “no” and asked him to stop. He ignored her protests and continued his sexual advances. The victim eventually submitted, in fear that he might become violent. The Supreme Court rejected the doctrine of implied consent in this case because Ewanchuk did not take “reasonable steps” to obtain consent.
At the outset of the book, Plaxton argues that the role and function of criminal law in society is to teach and communicate the boundaries of permissible behavior and social norms. There is a reciprocal relationship between law and social norms. Social norms shape criminal law, and criminal law in turn shapes social norms. The offense of sexual assault communicates to society what sexual behavior is wrong and must be discouraged. The authorargues that the principal role of criminal law is not to punish, because members of society are obligated to obey the law, regardless of whether criminal sanctions are applied. Particularly with the offense of sexual assault, there must be a separation of the “teaching function” of the law (instilling a sense of obligation) from the threat of punishment.
The Canadian Parliament passed several legislative reforms that increased the respect for women’s sexual autonomy, which included re-defining sexual assault as a violent offense and removing the marital exception. Chapter 2 of the book details the legislative change from “rape” to “sexual assault,” as the offense became deemed an act of violence, and not of sex. The change also criminalized a wider range of non-consensual sexual behaviors. By removing the sexual aspect, the law also shifted its definition from being a moral crime to being a violent crime. Plaxton also links rape to the objectification of women, and to the historical view that female sexuality is a commodity to be bargained . In essence, men who lack the capital to bargain (i.e., successfully seduce) may feel the need to resort to violence or coercion, which may lead to rape or sexual assault. The offense of sexual assault also addresses violations of sexual integrity and autonomy. Women should be able to explore their sexuality (autonomy) while being free of violations of their integrity.
In Chapter 3, Paxton explains why the Supreme Court rejected the doctrine of implied consent in the Ewanchuk case. In Ewanchuk, the majority opinion adopted the view that the implied consent doctrine considered the victim’s state of mind as being irrelevant. Further, implied consent has no place in Canadian law, since the idea behind it is largely based on gender social norms, which encompass gender stereotypes about how men and women are “supposed” to behave. Deciding whether a victim consented, or whether the perpetrator incorrectly assumed the victim was a willing participant is often based on a set of stereotypical sexual norms. Considering Ewanchuk and the victim had no prior relationship other than a professional one, the acceptance of implied consent in this case would have to assume that women, at any time, are sexually available to men, even during a job interview. Any opposition to his advances would be interpreted as her way of exercising coyness, as women are “supposed” to be sexually submissive and not “supposed” to behave as sexual aggressors.
Plaxton further explains the concept of implied consent by comparing it to checking in the game of ice hockey, a scenario he refers to throughout the book. Checking, sometimes referred to as “hitting,” is when a player drives his upper body into an opponent to knock them against the boards or to the ice, in order to separate them from the puck. A player typically does not know if or when he is about to be checked, and therefore, does not have an opportunity to in effect “consent.” One can imagine that no player “wants” or consents to be checked, but that merely agreeing to participate in the sport implies their consent.
The author describes the significance of consent with regard to various social interactions and the involvement of social coordination. Often what differentiates legal from illegal behavior is consent (social coordination). In other words, the lack of consent can transform a seemingly benign behavior into a criminal behavior (e.g., theft, trespassing). He then begins to make a case for implied consent, saying that seeking consent in some social interactions on an ongoing basis would be cumbersome and unnecessary. With regard to sexual behavior, obtaining contemporaneous consent might/would essentially eliminate any spontaneous physical affection between intimate partners, or keep couples from sexual exploration.
Chapter 4 refers to Section 273.1(1) of the criminal code that defines consent as “the voluntary agreement of the complainant to engage in the sexual activity in question.” This section was designed to advance sexual autonomy, as consent and capacity to consent are mental states experienced only by the victim. The question becomes whether one’s autonomy is restricted if one is bound to previous agreements or decisions (i.e., prior consent). Section 273.2(b) imposes a test of reasonableness, which shifts the focus from the perpetrator’s motive or belief, and requires he take reasonable steps to obtain consent. However, this test of reasonableness is vague and open to subjective interpretation. Referring again to the (public) hockey analogy, with regard to implied consent in the (private) sexual realm, there are no steadfast rules, no spectators, and no referees to determine what is reasonable and what is not.
Later, Paxton expands upon his discussion of the wrongfulness of the sexual objectification of women. Drawing from Nussbaum, Paxton discusses how the presence or absence of mutuality determines whether sexual touching is objectifying or instrumentalizing. According to Plaxton, Nussbaum describes several ways in which one can be objectified (e.g., made a tool for his or her own purpose). However, not all objectifications are morally objectionable, and depending on the context, may even be an exciting aspect of sexuality. The context is imperative; sexual behavior that occurs with mutual agreement and respect helps determine the moral acceptance of the sexual behavior.
Plaxton argues for the use of implied consent in sexual assault cases by drawing boundaries with regard to its use. Drawing from the work of Chambers, Plaxton explains what is meant by first-order and second-order autonomy: first-order applies to one’s attitude towards rules or norms; second-order applies to the manner in which one comes to engage in certain behaviors or ways. He refers to the terms, “exit” and “voice” as the extent to which one is free to abandon their chosen way of life. With regard to intimate relationships, one has second-order autonomy when they have exit and voice to remain or leave the relationship, and first-order when they have exit and voice to consent to every sexual encounter. Where there is exit and voice in a mutual relationship, the doctrine of implied consent can be recognized (as long as one can distinguish between sexual behaviors that are constrained by criminal law, and those that are not).
The Supreme Court rejected the use of implied consent in Ewanchuk in large part because the concept draws on the gender stereotype that women are sexually passive and are supposed to surrender to men’s sexual advances; unless a woman protests or resists, she is consenting. Drawing from the work of MacKinnon and Haslanger, Paxton explains sexual objectivity and objectification and their role in stereotypes and voice. When women are objectified, they have no voice, and therefore when they do speak, they are ignored. Paxton describes how reinforcing gender stereotypes can result in criminal wrongdoings.
In Chapter 8, Plaxton refers to the 1983 Canadian Parliament legislative Marital Rape Exception reform, a groundbreaking triumph for women’s rights and women’s sexual autonomy. Intimate relationships, including marital, have no bearing in the law. Plaxton details the significance of the context of the relationship, in that not all marital relationships are intimate, and marriage in a sense, is merely a label. Women choose to marry or remain married for various reasons- ongoing intimacies cannot be assumed. In sexual assault cases, one must examine the specific context and norms of that particular relationship (which are often not static), and whether it was one based on mutuality and respect. Plaxton states that when the Canadian Parliament drafted Section 273.1(1), the intention was to eliminate implied consent, particularly with the inclusion of Section 273.2(b) “reasonable steps” requirement. However, the legislation focused more on “date rape” than marital rape, with greater emphasis on “rape” opposed to “sexual assault,” advancing Plaxton’s support the use implied consent in certain cases.
In Chapter 9, Plaxton highlights the importance of women’s sexual autonomy, and the value of women’s ability to freely express their sexuality without the threat of being treated as a sexual object. Laws governing sexual behavior should serve to vindicate women whose sexual integrity has been violated, and protect vulnerable groups. Reflecting from Chapter 6, Plaxton revisits the role of autonomy and choice. In order for one to have (real) autonomy, they must have choices or the ability to chose different options, and not limited those options available to them due to life circumstances. This makes some more vulnerable than others, who require greater legal protections.
Plaxton also discusses the problem of overbreadth in sexual assault laws, as it would be virtually impossible to draft a law to only target a specific wrongdoing. Other forms of sexual touching will be “caught” with a broad definition. He also discusses overbreadth with implied consent, as it offers a defense for those accused of sexual assault and will likely be used by those undeserving. However, Plaxton believes that by offering implied consent, it assists in sexual assault laws from becoming overreaching. This may allow women protection from violations of sexual integrity, while allowing them to explore their sexuality (sexual autonomy).
Plaxton concludes in Chapter 10 by arguing a case for overbreadth and the use of implied consent by making it positive (demonstrating consent) rather than a negative (demonstrating lack of consent). This shifts the burden onto the defendant to prove there was implied consent opposed to the prosecution demonstrating a lack of consent. Plaxton acknowledges the legal burden this places on a defendant and his presumption of innocence. However, overbreadth in application of the law and overbreadth in the doctrine of implied consent both rely on the discretion of professionals in the criminal justice system. Plaxton argues that recognizing the defense of implied consent provides women more control of their sexuality while communicating that their partners must proceed with caution and respect. This points back to the context of the relationship, in which every case must be examined in the context of the specific details of the couple’s individual relationship. Paxton concludes that the doctrine of implied consent has a role in sexual assault law, as it allows couples to explore their sexual autonomy and other sexual possibilities without undermining the deterrent effect of sexual assault offense.
Implied Consent and Sexual Assault crosses several social disciplines, and will interest a vast audience, including feminist advocates, lawyers, legal analysts, criminologists, sociologists, psychologists, social workers, and professionals involved in sexual assault prevention and victim services. Using simple language and concrete examples, Plaxton makes a compelling argument that implied consent has a place (albeit limited) in sexual assault cases. By dissecting the statutes and the ideas behind them using prior court decisions, the works of law and feminist theorists, in addition to his own ideas and opinions, this book is a valuable legal and reference source for those interested in sexual offense legislation.
Melanie Clark Mogavero, Ph.D., Assistant Professor of Criminal Justice, Georgian Court University