JD Candidate 2020
The scene: You are sitting at home in your pyjamas watching your favourite show. Your phone buzzes and you see a message from your friends: “Let’s go out tonight!” You know you are not leaving the house, but out of politeness, you want to avoid an abrupt “no.” So you might say you are tired, or not feeling well. Regardless of the words you use, your response is interpreted as a “no.” This is because we accept these phrases as culturally normative ways of indicating refusal in social circumstances all of the time.
So, why are we not able to accept these phrases when it comes to sex?
We often hear of sexual assault cases in which the victim did not give a clearly stated verbal “no.” Overwhelming evidence of both physical and verbal disagreement might be available, but because of the absence of that simple 2-letter word, the victim’s lack of consent is less likely to be believed. Interestingly, we know why women choose not to simply say “no” to ward off sexual advances. According to the literature, women refrain from saying “no” to avoid upsetting a partner, to avoid feeling like a prude, or out of fear for the reaction. Furthermore, it is conversationally unusual to respond with “no” any social circumstance that is unaccompanied by a mitigating factor. As humans, we prefer to give an excuse that speaks to inability, rather than just unwillingness; that is, we are far more inclined to say “sorry, I have a midterm on Monday,” than we are to say “no, I want to stay home.”
In addition to being unrealistic and ignorant of the literature, requiring an actual “no” to demonstrate refusal, that is, expecting more refusal in a sexual context than anywhere else in life, does not reflect the legal standard for consent in Canada. In R v Park, for instance, Justice Dube reminds us that only a yes means yes when it comes to consent, an absence of “no” will not constitute consent.
Finally, expecting more direct refusal in a sexual context is troubling because it advances two dominant rape myths. First, this expectation implies that any other way of refusing sexual contact other than saying “no” is inadequate. In the trial decision from R v Ewanchuk, the judge suggested that women should even go so far as to assert physical force to get the message across, rather than “resort to the courts” afterwards. A similar message was echoed by Justice Camp in 2014, when he asked the complainant “why couldn’t you just keep your knees together?” insinuating that a physical act of rejection is more effective than a verbal one.
Second, this expectation of direct refusal suggests that sexual consent can be a result of misinterpretation. If only women were more assertive in their verbal communication, they could avoid being raped. This claim is both dangerous and onerous for victims, as it shifts the burden of the assault to them. Again, this is not consistent with the legal reality, which tells us that the burden is in fact on the accused to prove that they took all reasonable steps to ascertain consent.
Taken together, continuing to expect direct refusal, to demand more from women in horrible situations than we do from others in our day-to-day lives, demonstrates an ignorance of the fact that culturally speaking, we very rarely use a flat out “no” to express refusal. More damaging still, this expectation flies in the face of legal standards and perpetuates rape myths. We must accept a realistic refusal standard when it comes to sex.
 Celia Kitzinger & Hannah Frith, “Just say no? The use of conversation analysis in developing a feminist perspective on sexual refusal” (1999) 50:3 Discourse & Safety 293.
 Robyn Doolittle, “Unfounded: Why Police Dismiss 1 in 5 Sexual Assault Claims as Baseless” Globe and Mail (3 February 2017), online: <https://www.theglobeandmail.com/news/investigations/unfounded-sexual-assault-canada-main/article33891309/>.
 Hedda Hakvag, “Does Yes Mean Yes? Exploring Sexual Coercion in Normative Heterosexuality” (2010) 28:1 Can Women Studies 121.
 Supra note 1.
  2 SCR 836, 99 CCC (3d) 1 [Park].
  1 SCR 330 at 93, 169 DLR (4th) 193 [Ewanchuck].
 Sean Fine, “Judge in ‘knees together’ trial resigns after council recommends he be fired” (14 April 2017) Retrieved online: < https://www.theglobeandmail.com/news/national/judicial-council-recommends-justice-robin-camp-be-fired/article34249312>
 Supra note 1.
 Ewanchuk, supra note 6.