The Ideal Victim, the Hysterical Complainant, and the Disclosure of Confidential Records: The Implications of the Charter for Sexual Assault Law

This article explores the current state of Canadian law on the production and disclosure of complainants\u27 records to reflect upon the implications of the Canadian Charter of Rights and Freedoms for Canadian sexual assault law and jurisprudence. Some scholars assert that the Supreme Court\u27s decision in R. v. Mills, upholding section 278 of the Criminal Code governing access to complainants\u27 records, constitutes an erosion of accuseds\u27 rights and an unjustified compromise of constitutional standards. By contrast, this article demonstrates that R. v. Mills is a highly contradictory decision that can be read as creating an interpretation of section 278 that privileges defendants\u27 rights and undermines the protections that the legislative regime sought to erect. Emerging out of the tensions inscribed within Mills, recent decisions continue to privilege the legal rights of the accused and to reinforce a liberal legalistic construction of sexual violence. Privacy, posed as a right to contain narratives of sexualized violence within a bounded personal space, may provide but tenuous protection against vigorous pursuit of records by defence counsel. When complainants can be constructed as failing to enact the characteristics of ideal victimhood, their entitlement to privacy is discounted. Through a discursive analysis of the case law on access to complainants\u27 records, the article contends that the mechanism of disclosure constitutes the central contemporary enactment of the hysterization of the rape victim

Rethinking Affirmative Consent in Canadian Sexual Assault Law: Neoliberal Sexual Subjects and Risky Women

While the struggle for affirmative consent is typically framed as a feminist law reform project, I contend that we need to understand the legal elaboration of a positive and explicit consent standard in relation to wider shifts in governance. The second section of this article explores how the legal elaboration of affirmative consent in Canadian law might be seen as a specific expression of neoliberal governmentality, forging new normative sexual subjects who interact within a transactional sexual economy. In section three, I demonstrate how discourses of responsibilization and risk management inform recent Canadian sexual assault decisions, constituting the ideal victim as the rape-preventing subject who exercises appropriate caution (yet fails) and the normative masculine sexual subject as he who avoids the risk of criminalization through securing consent. Just as new consent norms prescribe privileged sexual subjectivities and new conceptions of good/credible victims, so too do they produce new mechanisms for discrediting claims of sexual assault. In the final section of this article, I interrogate the reconstruction of the good victim/bad complainant dichotomy in Canadian judicial discourses...By considering three illustrative cases in some depth, I demonstrate how such “risky women” appear to surrender their status as legal subjects capable of having their refusals recognized in law. Under the shadow of affirmative consent, standards of good victimhood are currently being revised

The Ideal Victim, the Hysterical Complainant, and the Disclosure of Confidential Records: The Implications of the Charter for Sexual Assault Law

This article explores the current state of Canadian law on the production and disclosure of complainants\u27 records to reflect upon the implications of the Canadian Charter of Rights and Freedoms for Canadian sexual assault law and jurisprudence. Some scholars assert that the Supreme Court\u27s decision in R. v. Mills, upholding section 278 of the Criminal Code governing access to complainants\u27 records, constitutes an erosion of accuseds\u27 rights and an unjustified compromise of constitutional standards. By contrast, this article demonstrates that R. v. Mills is a highly contradictory decision that can be read as creating an interpretation of section 278 that privileges defendants\u27 rights and undermines the protections that the legislative regime sought to erect. Emerging out of the tensions inscribed within Mills, recent decisions continue to privilege the legal rights of the accused and to reinforce a liberal legalistic construction of sexual violence. Privacy, posed as a right to contain narratives of sexualized violence within a bounded personal space, may provide but tenuous protection against vigorous pursuit of records by defence counsel. When complainants can be constructed as failing to enact the characteristics of ideal victimhood, their entitlement to privacy is discounted. Through a discursive analysis of the case law on access to complainants\u27 records, the article contends that the mechanism of disclosure constitutes the central contemporary enactment of the hysterization of the rape victim

Does “No, Not Without a Condom” Mean “Yes, Even Without a Condom”?: The Fallout from R v Hutchinson

In R v Kirkpatrick, the Court of Appeal for British Columbia held that consent to sexual activity cannot be established where a man proceeds with unprotected vaginal intercourse when his sexual partner has insisted on a condom. While this finding should be uncontroversial, it is in fact contrary to the Supreme Court of Canada ruling in R v Hutchinson. In this comment we argue that the approach taken in Kirkpatrick is correct and consistent with the landmark decision in R v Ewanchuk. We urge the Supreme Court of Canada to reconsider its majority judgment in Hutchinson in order to fully recognize the central role that a condom plays in whether a woman agrees to participate in sexual activity. Dans l’affaire R c Kirkpatrick, la Cour d’appel de la Colombie-Britannique a estimé que le consentement à une activité sexuelle ne peut être établi lorsqu’un homme a des relations vaginales non protégées alors que sa partenaire sexuelle a insisté pour qu’il utilise un préservatif. Bien que cette conclusion ne devrait pas être controversée, elle est en fait contraire à l’arrêt de la Cour suprême du Canada dans l’affaire R c Hutchinson. Dans le présent commentaire, nous soutenons que l’approche adoptée dans l’affaire Kirkpatrick est correcte et conforme à l’arrêt historique rendu dans l’affaire R. c. Ewanchuk. Nous demandons instamment à la Cour suprême du Canada de reconsidérer son jugement majoritaire dans l’affaire Hutchinson afin de reconnaître pleinement le rôle central que joue le préservatif dans le consentement d’une femme à participer à une activité sexuelle

Non-Consensual Condom Removal in Canadian Law Before and After \u3cem\u3eR. v. Hutchinson\u3c/em\u3e

This paper examines the phenomenon of nonconsensual condom removal (NCCR) and its relationship to sexual assault in Canada. Using empirical studies and the insights of feminist theory, we explore the nature of the harms caused by NCCR and contend that this pervasive practice constitutes sexual assault. We then critique the decision of R v Hutchinson, which held that condom sabotage does not negate subjective consent, ignoring the dignitary harms of NCCR. While lower court decisions before Hutchinson recognized that consent to sex with a condom does not include consent to sex without, courts after Hutchinson have struggled to distinguish the decision in ways that lack coherence or have simply ignored the decision altogether. After briefly examining legislative amendments in other jurisdictions, we argue for a return to the fundamental finding in R v Ewanchuk that how sexual activity is carried out, including whether a condom is used, must be part of the subjective consent inquiry

Does \u27No, Not without a Condom\u27 Mean \u27Yes, Even Without a Condom\u27?: The Fallout from R v Hutchinson

In R v Kirkpatrick, the Court of Appeal for British Columbia held that consent to sexual activity cannot be established where a man proceeds with unprotected vaginal intercourse when his sexual partner has insisted on a condom. While this finding should be uncontroversial, it is in fact contrary to the Supreme Court of Canada ruling in R v Hutchinson. In this comment we argue that the approach taken in Kirkpatrick is correct and consistent with the landmark decision in R v Ewanchuk. We urge the Supreme Court of Canada to reconsider its majority judgment in Hutchinson in order to fully recognize the central role that a condom plays in whether a woman agrees to participate in sexual activity

Resurrecting “She Asked for It”: The Rough Sex Defence in Canadian Courts

According to rape crisis centres and women’s shelters in Canada, the US and the UK, women are reporting extreme levels of violence by men who rape them, including strangulation—a particularly dangerous form of violence that is highly predictive of femicide. At the same time, accused men are deploying the “rough sex” defence when the victim—nearly always a woman—has suffered bodily harm or even death as a result of the accused’s actions. This defence is used to suggest that the woman enjoyed strangulation, bondage or other violence as part of “sex play”, inviting judges and jurors to find that she either consented to the acts causing bodily harm or that the man honestly believed she consented

11. Third-Wave anti-rape Activism on Neoliberal Terrain: The Garneau Sisterhood

This section of the book decentres law by exploring the potential for social change in women’s community-based activism, which the work of the Garneau Sisterhood exemplifies. Lise Gotell’s chapter places the postering campaign of the Sisterhood, consciously modelled on the work of Jane Doe’s own posters that defied the Toronto police as described in “The Victories of Jane Doe,” in the context of neoliberal erosion of feminist equality gains and the reassignment of the responsibility for managing the risk of rape to individual women. She demonstrates how police warnings to women during the course of the Garneau investigation mirrored many of the same attitudes and assumptions about men, women, and rape that plagued the investigation of the “Balcony Rapist.” Lise describes the Sisterhood’s campaign as one that successfully inverted the individualizing and woman-blaming that characterizes police and media responses to sexual assault, and argues that its brilliance lay in the fact that it is easily replicable by other communities of women engaging in third-wave feminis

Does \u27No, Not without a Condom\u27 Mean \u27Yes, Even Without a Condom\u27?: The Fallout from R v Hutchinson

In R v Kirkpatrick, the Court of Appeal for British Columbia held that consent to sexual activity cannot be established where a man proceeds with unprotected vaginal intercourse when his sexual partner has insisted on a condom. While this finding should be uncontroversial, it is in fact contrary to the Supreme Court of Canada ruling in R v Hutchinson. In this comment we argue that the approach taken in Kirkpatrick is correct and consistent with the landmark decision in R v Ewanchuk. We urge the Supreme Court of Canada to reconsider its majority judgment in Hutchinson in order to fully recognize the central role that a condom plays in whether a woman agrees to participate in sexual activity