Elizabeth Sheehy is a professor emerita of law at the University of Ottawa. Janine Benedet and Isabel Grant are law professors at the University of British Columbia.
No matter the verdicts in what is known as the Hockey Canada sexual-assault trial, the complainant E.M. deserves our respect and gratitude for shouldering the burden of testifying. It is a public service to us all when women defy the odds and agree to participate as public witnesses to their own allegations of rape. Complainants routinely say they go to court to ensure the accused doesn’t harm another woman.
E.M. bravely endured seven days of cross-examination dedicated to attacking her credibility and portraying her as unreliable, some of it rooted in tired, discredited and legally irrelevant myths and stereotypes about women. She acknowledged that she could not remember everything that she did or said on that night, and women across Canada have seen her withstand this ordeal with dignity.
As law professors who specialize in sexual-assault law, we have been inundated with media questions about whether this trial demonstrates that the law needs reform. Our answer is that Canada’s sexual-assault law is one of the best on offer for complainants. It’s not the law that repeatedly falls short, but rather those in the justice system who sometimes fail to apply it.
Hockey Canada sexual-assault trial is nearly over. We’re answering your questions after the verdict
Canada’s sexual-consent law requires that the complainant voluntarily agree in her own mind to the sexual activity in question at the time of each sexual act. Not before, and not, for example, in a video recorded afterward, when she may be anxious to placate the men filming her or concerned about whether they will let her leave. Voluntary agreement must come from her, and it must be free of coercion.
We wonder about “voluntary agreement” when as many as nine strangers enter a room (some with golf clubs that they allegedly discussed inserting inside of her) where a young woman is intoxicated and naked, having just had sex with their teammate. Agreeing because you are afraid to say no, or too intoxicated to resist, is not voluntary.
Voluntary agreement must be given to each specific sexual act. There is no such thing as “generic” or “global” consent. For example, this means that E.M. would have had to agree specifically to the acts of the one player who allegedly did the splits over her, his genitals grazing her face.
As for whether these men were morally innocent because they honestly but mistakenly believed E.M. communicated consent to their sexual contact, our law also recognizes that it is not enough to assume that a woman is up for sexual activity. And believing that a woman is consenting because your friend told you so is ignorance of the law, which is not a defence.
Those who claim that they were innocently mistaken must first provide some evidence that they took reasonable steps to ascertain consent. Consent must be affirmatively communicated by the complainant, not just conjured in the mind of the accused. And the steps required become more onerous the more dangerous or fraught the sexual contact. The reasonable-steps obligation in this case will be heightened exponentially due to the number of men and the implied threat their presence created; the fact that they were strangers to her, yet a brotherhood to each other; and E.M.’s acute position of vulnerability. There can be no honest belief in consent when a man is reckless; when he sees the risk of non-consent but proceeds anyway. The risk of non-consent was so high in this situation that there may have been no way to proceed in that moment with an honest belief rooted in uncoerced agreement, rather than masculine privilege and porn culture.
These laws, which have been part of our Criminal Code for more than three decades, were championed by the front-line sexual-assault workers who continue to advocate for survivors, whatever path they choose to take.
If acquittals ensue in this case, it does not mean that the criminal law cannot respond to sexual violence against women. Even without a verdict, some are using this case to call for alternative processes for sexual assault outside the criminal justice system through “restorative justice.” In our view, such calls miss the mark. Why do we assume restorative justice would be immune from the sexism that affects the rest of the legal system? Or that women want to restore a relationship with their assaulters?
Whatever verdict is rendered, we say this to women: you are entitled to rely on a criminal justice system that is based on respect for both women’s equality and the right to a fair-trial process. And to E.M., we say thank you for your courage.