The Complications of Consent in Pre-Existing Relationships

Laura Thistle
JD Candidate, 2020    

Sexual assault cases cause controversy and tension for the Canadian justice system. The common argument is that the system does not provide justice for victims of sexual assault. The real challenge lies in understanding the circumstances surrounding the crime of sexual assault – namely, how often the crime is committed by an individual known to the victim, and the psychological implications this has for those involved.

Earlier this year I had the chance to speak with Professor Woolley of the University of Calgary, author of the recent ABlawg article “Defending Rapists.”[1] Woolley pointed out that in sexual assault cases, there is often no dispute about whether or not sex occurred – it is a question of consent. That the circumstances surrounding the act are in question means testimony of the parties involved is carefully scrutinized.

Stemming from this scrutiny, there is often vehement disagreement from the public over what the verdict of particular sexual assault cases should be, and whether or not victims are treated fairly. Canada’s sexual assault legislation was overhauled in 1982 to account for historical injustices, but problems persist. Last fall, for instance, it came to light that Alberta Justice Robin Camp presided over a 2014 sexual assault trial and drew on numerous disrespectful assumptions and questions while addressing the victim.[2] Clearly, although steps have been taken to treat victims of sexual assault more fairly, significant tension still exists.

Some of this this tension can be directly linked to the high frequency with which someone the victim knows commits the sexual assault. According to Statistics Canada, 87% of police reported sexual assaults are committed by someone known to the victim.[3] It is therefore unsurprising that less than 10% of sexual assaults are reported to the police – strikingly fewer than other violent offences such as robbery (47%) and physical assault (40%).[4],[5]

When someone known to the victim commits the sexual assault, the victim faces the personal conflict of whether to report the crime at all. Relationships are jeopardized, and families may be torn apart. Furthermore, when bringing a case forward, the presence of a pre-existing relationship between the perpetrator and the victim can cause authorities involved to question the lack of consent. The testimony can become clouded by the presence of a prior relationship with the accused perpetrator – particularly if that prior relationship was a romantic one.

If someone expresses consent once, it is not automatically granted at every future juncture. Similarly, just because trust exists between two people, that does not imply sexual consent. Chief Justice McLachlin set forth the proper understanding of consent in her R. v. J.A. 2011 SCC 28 ruling. She stated, “The legislation requires ongoing, conscious consent […] to ensure that individuals engaging in sexual activity are capable of asking their partners to stop at any point.”[6] However, later judgments have failed to take this principle into account. For example, in R. v. H.E. 2017 ONSC 4277, Justice Robert Smith dismissed the accused’s sexual assault charges. This acquittal was despite accepting that the accused had sex with his wife on many occasions without her consent.[7] He pointed to the fact that he believed he had a right to do so as reason to doubt his mens rea.[8]

Why was ignorance of the law an acceptable defence in this instance, when we know from R v. Jorgensen that ignorance in the law is no defence?[9] I argue that it is due to deep assumptions about consent stemming from pre-existing relationships, and that somehow trust implies ongoing consent. I would further suggest that these erroneous assumptions are often unconscious; few would say they truly believe that the existence of a past relationship implies future consent. Nevertheless, it appears that it is easier to believe that a stranger would disrespect a person’s agency in such an intensely invasive way than to believe that a friend – or worse, a partner – would do the same.

In order for this misconception to be properly addressed within the justice system, everyone needs to have a clear understanding of the difference between pre-existing trust and situational consent. Judges and juries need to be aware of the fact that the existence of a trusting relationship does not preclude the possibility of a lack of situational consent. Similarly, police officers responding to sexual assault allegations must refrain from assuming that cases are unfounded because of pre-existing relationships. Sensitivity training already exists for front-line officers who respond to these sorts of cases, but a better understanding of the psychological implications of a pre-existing relationship between victim and assaulter is vital in order for this training to be effective.

 

[1] Alice Wooley, “Defending Rapists” (30 December 2016) ABlawg (blog), online: <http://ablawg.ca/2016/12/30/defending-rapists/&gt;.

[2] Sean Fine, “The Robin Camp transcript: ‘…keep your knees together’ and other key passages” (9 September 2016) The Globe and Mail, online: <theglobeandmail.com>.

[3] Cristine Rotenberg, “Police-reported sexual assaults in Canada, 2009-2014: A Statistical Profile” (3 October 2017) Statistics Canada, online: <statcan.gc.ca>.

[4] Craig Desson, “What Happens When Someone is Sexually Assaulted? Statistics Canada Says Few Convictions” (5 December 2014) The Toronto Star, online: <thestar.com>.

[5] Statistics Canada, “Trends in Sexual Offences” (12 February 2013) Canadian Centre for Justice Statistics Profile Series, online: <statcan.gc.ca>.

[6] R v JA, 2011 SCC 28 at 3, [2011] 2 SCR 440.

[7] R v HE, 2017 ONSC 4277 at 16.

[8] Ibid at 16.

[9] R v Jorgensen [1995] 4 SCR 55 at 16, 129 DLR (4th) 510.

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