Elizabeth Sheehy, Wednesday, June 1, 2011

A win for women at the Supreme Court of Canada last week in the J.A. decision had a worrying subtext: All three dissenting justices who argued in favour of decriminalizing sex with unconscious "consenting" women were men.

The majority in the 6-3 decision, written by Chief Justice Beverley McLachlin and joined by the other three female and two male justices, ruled against the idea of "advance consent" to sexual assault. They properly concluded there can be no consent in law when a woman is unconscious.

The three dissenting justices argued that it would further women's right to autonomy to create a new doctrine of "advance consent," so that unconscious women can have "sexual adventures." But can unconscious women enjoy sexual pleasure or exercise autonomy? Unconsciousness is the very antithesis of autonomy.

At the very least, this view represents an impoverished understanding of "autonomy." It is also terribly abstracted from the reality of women's lives, in which the sexual assault of women who are unconscious, whether from intoxication, medications, episodic disability or other causes, is a serious and widespread social problem.

The woman complainant purportedly "agreed" to being strangled unconscious, bound and penetrated with a dildo. But the top court was not permitted to consider the full context of this alleged consent, which was that the offender, J.A., was an abuser with a criminal record of weapons and violent offences, including two previous convictions for assaulting the complainant.

It's also true that the majority decision says there are no exceptions for husbands and wives or cohabiting couples: Sexually touching your sleeping partner puts you at risk of criminal prosecution. Understandably, for many people, this sounds like dangerous state intervention.

But think about it: If men and women in their relationships honestly give permission for such conduct, the criminal courts will never hear about it.

Who will report it? Will police set out on their own to find these cases?

Will prosecutors drag the women and men to court? Who will bear witness to the crime by testifying?

The only cases we can expect to see will be those arising out of exactly the kinds of relationships that the complainant was caught up in: violent ones -where "consent" is extracted through coercion, control and abuse. Those are the women who may show up to file sexual assault complaints. And they won't be saying their husbands gave them a tender kiss while they slept.

Moreover, the argument that the law should not apply to cases at the margins is not unique to sexual assault, but is true across the spectrum of criminal offences. Theft of a dollar is still theft. Yet we don't carve out a statutory exception for this offence, or any other.

The law of consent, on the books for over 20 years, was enacted by Parliament with input and support from a broad base of women's organizations. It addresses the pervasiveness of sexual assault and aims to protect women from sexual violence. The requirement that consent be conscious, continuing, contemporaneous with the sexual activity and revocable at any point is a cornerstone of this legislation.

Luckily for Canadian women and men, the majority of the Supreme Court last week understood the stakes in the litigation. Recognition of "advance consent" would have undermined the entire legislative framework for identifying sexual assault, including the requirement that men take "reasonable steps to ascertain consent." The ruling means the only reasonable step that will suffice when a woman is unconscious is to wake her before proceeding to sexual acts.

It also says married and cohabiting women are entitled to the same protection in criminal law as other women: There are no exceptions to the law of consent for certain categories of women or relationships.

Finally, strangulation is a significant risk factor for intimate femicide.

Allowing "advance consent" would have risked normalizing abusive and potentially lethal behaviour. It also would have made it effectively impossible to prosecute the assault of unconscious women. The high court's clear ruling that unconscious women are sexually unavailable is a welcome and clear message for the Canadian public.

Elizabeth Sheehy was counsel for the Women's Legal Education and Action Fund in the J.A. case, and is a professor in the faculty of law, University of Ottawa.

Elsie Hambrook, Thursday February 17th, 2011

The first Chairperson of the Advisory Council on the Status of Women, Madeleine Delaney LeBlanc, sent around a note recently reflecting on the 30th anniversary this week of the "Valentine Day Revolution."

On Feb. 14, 1981, more than 1,300 Canadian women from sea to sea descended on Parliament Hill, spontaneously and most of them on their own dime, to get the attention of the Trudeau government which was discussing - without women - changes to the Canadian Constitution.

That was "the prelude to a long and hard quest that resulted in Section 15 and 28 being included in the Charter of Rights and Liberties in the Canadian Constitution" as Madeleine remembers well, having played a role in that long struggle, as well as being one of the co-chairs of the Valentine Day conference.

She urges us to remind all and especially younger women that it did not happen easily.

It definitely did not happen easily - books have been written about that fight - and as Madeleine points out, what rights were won are no longer easily enforceable since the abolition by the Harper government of the Court Challenges Program of Canada, which had been set up to provide financial assistance for important court cases that advance equality rights guaranteed under Canada's Constitution.

It is cold comfort to know that rights in the Charter are at least guaranteed to those who can afford to go all the way to the Supreme Court of Canada. That's not equality and it's not what the feminists were aiming for.

The Trudeau government had cancelled a planned conference on women and the Constitution, seemingly because the government feared women would want something added to the Charter of Rights and Freedoms - and they were busy enough.

Women were angry. The president of the Canadian Advisory Council on the Status of Women, Doris Anderson, resigned in protest.

Inspired by Ms. Anderson's action, a group of women - called the Ad-Hockers - decided to organize a constitutional conference. They hoped for 200 and attracted 1,300.

They were told they could not meet in the Parliament. They obtained the use of three rooms, including one reserved for the Senate Committee on the Constitution.

The media expected confused talk about rights. The women wowed them with their knowledge of the intricacies of constitutional rights - and with their defiance of the traditional political parties who were pushing women to ask for certain things - or to be quiet.

So Canada took notice.

It is described by some as the first time that women's issues were taken seriously by the big boys in politics and the media. Not that the change was permanent.

As Doris Anderson said, this was happening at a time when women were a rarity in the House of Commons, "like giraffes in Ottawa." Not that this has changed much even today - we're maybe like eastern cougars now.

At the conference, the 1,300 women decided that a separate, over-arching statement was needed in the Charter stating that the rights and freedoms in there were guaranteed equally to women and men.

Canadian women spent the rest of 1981 lobbying recalcitrant premiers with telegrams (!) and signs "Take your paws off my clause" - the new clause that simply said that everyone is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination.

I've included the following story before in my column, but it is a favourite that gives the flavour of those heady times.

Premier Richard Hatfield was a key national player in the Charter negotiations and also the minister responsible for the status of women. He and Madeleine Delaney LeBlanc were in constant contact. In her book, The Taking of 28, Penney Kome says that, "the indefatigable Madeleine LeBlanc, who reports directly to Hatfield . . . lobbied him constantly."

Ms. LeBlanc remembers that Hatfield "was giving me reports regularly. At one point, he called and said, 'At 4 o'clock you were equal, but at 4:40 you were not'."

Since the coming into force of the Charter, some judges and some governments have seen to it that the gains have been more limited than many had hoped. But Canadian women are still better off for having insisted on entrenched rights, better off than most women around the world. Openly discriminatory laws were changed.

That is half the battle.

Thank you to those women who were there when it mattered. Thank you to those who made them angry.

* Elsie Hambrook is Chairperson of the New Brunswick Advisory Council on the Status of Women. Her column on women's issues appears in the Times & Transcript every Thursday. She may be reached via e-mail at acswcccf@gnb.ca