Consent and Sexual Violence in Canadian Public Discourse: Reflections on Ewanchuk

Canadian Journal of Law and Society

Volumn 16, Issue 2, 2001, Pages 173-204

  Wright, Joanne ^a  

^a BROCK UNIVERSITY   (Canada)

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EID: 85010088347     PISSN: 08293201     EISSN: 19110227     Source Type: Journal    
DOI: 10.1017/S0829320100006840     Document Type: Article

References (154)

1. See especially C Pateman, The Sexual Contract (Stanford, CA: Stanford University Press, 1988)
2. C. Pateman, The Disorder of Women (Stanford, CA: Stanford University Press, 1989)
3. C.A. MacKinnon, Toward a Feminist Theory of the State (Cambridge: Harvard University Press, 1989).
4. Criminal Code, R.S.C. 1985, c. C-46, s.273.1(1). The law also contains revised “rape-shield” provisions which outline the situations in which evidence of the complainant's sexual history may be introduced.
5. See R.J. Delisle, “The New Rape Shield Law and the Charter” (1993) 42 U.N.B.L.J. 335
6. P. Hughes, “From a Woman's Point of View” (1993)42 U.N.B.L.J. 341.
7. R. v. Ewanchuk, [1999] 1 S.C.R. 330 [hereinafter Ewanchuk (S.C.C.)], allowing appeal from R. v. Ewanchuk, [1998] A.J. No. 150 (Alta. CA.) (Q.L.) [hereinafter Ewanchuk (CA.)], dismissing appeal from acquittal by Moore J.
8. L. Gunter, “Courtship in monosyllables: poor manners distract us from the high court's sophistry” National Post (1 March 1999) A18 [hereinafter “Courtship in monosyllables”].
9. See also the editorial on the same subject, “Assaulting the law” National Post (1 March 1999) A19.
10. Ewanchuk (S.C.C.), National Post 3 at para. 7.
11. National Post, at para. 8.
12. Ewanchuk (C.A.), National Post 3 at para. 44.
13. Ewanchuk (S.C.C.), National Post 3 at para. 15.
14. As quoted in Ewanchuk (C.A.), National Post 3 at para. 44.
15. National Post, at para. 71.
16. National Post, at para. 45.
17. National Post, at para. 4.
18. National Post, at para. 4.
19. National Post, at para. 21.
20. McClung, like the trial judge, emphasized that the accused's penis was soft when he laid it upon her pelvis. Rebecca Johnson wonders “if the significance of the reference to the soft penis doesn't serve to emphasize the fact that this was not ‘really’ a sexual assault. That is, a soft penis can not be a threat.” See R. Johnson, “The Persuasive Cartographer: Sexual Assault and Legal Discourse in R. v. Ewanchuk” in G. MacDonald, ed., Social Context and Social Location: New Struggles for Old Law (Peterborough, ON: Broadview Press, forthcoming in 2001), n. 8.
21. Ewanchuk (C.A.), Social Context and Social Location: New Struggles for Old Law 3 at 21.
22. See also J. Tibbetts, “Supreme Court asked to spell out the rules for consent before sex: Appeal challenges Alberta ruling on assault case in which ‘no, stop’ was not enough to indicate lack of consent for sexual activity” The Globe and Mail (13 October 1998) A7.
23. See J. Mahoney, “Alberta Judge to face formal complaint: Rare exchange between judges leaves legal community ‘shocked, appalled’” The Globe and Mail (1 March 1999) A3.
24. J. Mahoney, “Man who set judges at odds is jailed” The Globe and Mail (21 October 2000) A9 [hereinafter “Man who set judges”].
25. Ewanchuk (S.C.C.), The Globe and Mail 3 at para. 27.
26. The Globe and Mail, at para. 29.
27. There remains a concern that this defense places an unnecessary burden on the complainant to ensure that nothing she does (or wears) can lead the accused to assume her consent. Before changes were made to the law in 1992, if a woman's “No's” were not forceful enough or were interpreted as coyness, then the defendant could be acquitted even if her consent was not given. Under the new law, these concerns are allayed only somewhat, for the defence of honest but mistaken belief in consent remains. See R. Hinch, “Inconsistencies and Contradictions in Canada's Sexual Assault Law” XIV: 3 Can. Pub. Pol. 282.
28. The original wording was “all reasonable steps” but “all” was removed because it was thought to impose too high a standard on the accused. See J. Nedelsky, “Violence Against Women: Challenges to the Liberal State and Relational Feminism,” in I. Shapiro and R. Hardin, eds., Political Order (New York and London: New York University Press, 1996) 454 at 479.
29. Ewanchuk (S.C.C.), Political Order 3 at para. 52.
30. Political Order, at para. 58.
31. Political Order, at para. 82.
32. Ewanchuk (C.A.), Political Order 3 at para. 67.
33. M.R. Burt, “Rape Myths and Acquaintance Rape” in A. Parrot & L. Bechhofer, eds., Acquaintance Rape: The Hidden Crime (Toronto: John Wiley & Sons, 1991) 26 at 27.
34. Ewanchuk (S.C.C.), Acquaintance Rape: The Hidden Crime 3 at para. 95.
35. Acquaintance Rape: The Hidden Crime, at para. 103.
36. Unrapeable women, or “open territory victims”, include prostitutes, “loose women” or women with unsavoury reputations, women with sexual “experience” as well as those who are mentally ill, homeless, poor, intoxicated or alcoholic. See Hinch, Acquaintance Rape: The Hidden Crime 20 at 288.
37. The credibility problem is not a new one in the Canadian legal context. Historically, “women who were known to drink alcoholic beverages, frequent taverns, or indulge in extramarital sex were virtually guaranteed legal rebuff when they complained of violent rape. In the language of the courts, they lacked credibility:” C. Backhouse, Petticoats and Prejudice: Women and Law in Nineteenth-Century Canada (Toronto: Osgoode Society/Women's Press, 1991) at 87.
38. See Burt, Petticoats and Prejudice: Women and Law in Nineteenth-Century Canada 26 at 26.
39. K. Bumiller, “Fallen Angels: The Representation of Violence Against Women in Legal Culture” in M. Albertson Fineman and N. Sweet Thomadsen, eds. At the Boundaries of Law: Feminism and Legal Theory (New York: Routledge,1991) 95 at 97.
40. Quoted in S. Ohler, “Judge reiterates belief that teen wasn't assaulted” National Post (27 February 1999) A1.
41. K. Steel, “A Sacrificial Wolf: Is Rapist Ewanchuk a Dangerous Offender, Or a Pawn in a Larger Debate?” Alberta Report 26: 14 (29 March 29 1999) at 22.
42. See “Man who set judges”, Alberta Report 17.
43. J.W. McClung, Letter to the Editor, National Post (26 February 1999) A19.
44. See Steel, National Post 33 at 22.
45. C. Blatchford, “Sometimes a massage isn't just a massage” National Post (6 March 1999) B8.
46. J. Mahoney, Letter to the Editor, National Post (3 March 1999) A19.
47. This was Professor Matin Yaqzan's suggestion in a letter to the University of New Brunswick student newspaper. The Brunswickan. Yaqzan's letter became the center of a university debate, not so much about dating violence as free speech, since he was temporarily suspended from his job. In fact, the issue of consent, which ought to have been at the center of this controversy, was sidelined. See M. Yaqzan, “Opinion: ‘Rape’ Past and Present” The Brunswickan (8 November 1993) 7.
48. One contributor to the editorial page of the National Post attempts to use the metaphor of theft to prove the victim's fault in this case. He writes, “If, one night, I park my shiny BMW in a seedy area of downtown, leave the doors unlocked and the keys in the ignition, my car will most certainly be gone when I get back. Sure, the law defines it as car theft. But I don't have my car and I've been a damned fool” [emphasis added]. Apparently, the complainant in Ewanchuk, by entering his trailer dressed as she was, effectively “left the keys in the ignition.” Apart from the offence of equating a woman with something that is to be driven, the difficulty with this analogy is that, whereas the law defines theft of the BMW as theft, two courts in Alberta did not define what happened to the complainant as sexual assault. See S. Grauer, Letter to the Editor, National Post (1 March 1999) A19.
49. National Post.
50. M. Los and S.E. Chamard, “Selling newspapers or educating the public? Sexual violence in the media” (1997) 39 Can. J. Crim. 293 at 318.
51. An Alberta lawyer claims that he is not sure that men are “emotionally capable” of ascertaining the consent of their female partners when they are “wound up,” also implying that male sexuality is somehow out of control. See K. Powell, “Ruling ignores reality, prof says” The Edmonton Journal (3 March 1999) A4.
52. This was also Matin Yaqzan's point, that men require sexual gratification and will use any means to achieve it. See The Edmonton Journal 40.
53. See S. Kimber, “Not Guilty”: the trial of Gerald Regan (Toronto: Stoddart, 1999).
54. E.L. Greenspan, “Judges have no right to be bullies” National Post (2 March 1999) A18 [hereinafter “Judges have no right”].
55. E.L. Greenspan, “Judge Kozinski, I beg to differ” National Post (11 March 1999) A18 [hereinafter “Judge Kozinski”].
56. Blatchford, National Post 38.
57. M. Repo, “The Ewanchuk ruling is no reason to rejoice” The Globe and Mail (4 March 1999) A17.
58. The Globe and Mail.
59. T.A. van Dijk, Racism and the Press (London/New York: Routledge, 1991) at 207.
60. Racism and the Press.
61. Racism and the Press
62. E. Lawrence, quoted in H. Bannerji, “Introducing Racism: Notes Towards an Anti-Racist Feminism” (1987) 16:1 Resources for Feminist Research 10 at 10.
63. “Judge Kozinski”, 16:1 Resources for Feminist Research 47.
64. E. Lawrence, 16:1 Resources for Feminist Research 54.
65. On common sense, see also J. Winter, Common Cents: media portrayal of the Gulf War and other events (Montreal: Black Rose, 1992).
66. Repo, Common Cents: media portrayal of the Gulf War and other events 49.
67. See N. Lacey, Unspeakable Subjects: Feminist Essays in Legal and Social Theory (Oxford: Hart Publishing, 1998) at 121
68. S. Bronnit, “The Direction of Rape Law in Australia: Toward A Positive Consent Standard” (1994) 18: 5 Criminal Law Journal 249 at 251–253.
69. C. Smart, Feminism and the Power of Law (London and New York, Routledge, 1989) at 45.
70. Feminism and the Power of Law.
71. An expression used by a Michigan law enforcement official to describe rape reform. Quoted in S.J. Schulhofer, Unwanted Sex: The Culture of Intimidation and the Failure of Law (Cambridge, MA: Harvard University Press, 1998) at 39.
72. “Judge Kozinski”, Unwanted Sex: The Culture of Intimidation and the Failure of Law 47.
73. Unwanted Sex: The Culture of Intimidation and the Failure of Law.
74. “Courtship in Monosyllables”, Unwanted Sex: The Culture of Intimidation and the Failure of Law 4.
75. Gunter chastises feminists for defending Bill Clinton on charges of sexual assault against Kathleen Willey while demonizing Ewanchuk and, by extension, McClung. See L. Gunter, “Feminist attitude is two-faced,” The Edmonton Journal (2 March 1999) A8.
76. G. Jonas, “The Canadian matriarchy's reign of terror” The Toronto Sun (4 March 1999) 1.
77. As Tanya Horeck points out, however, the practice of spectating while a victim recounts her story - especially in light of the fact that the victim's experience in the courtroom often constitutes a second assault - raises unsettling questions about the role of the viewer in “the raped woman's ordeal.” See T. Horeck, ‘“They did worse than nothing’: Rape and Spectatorship in The Accused” (2000) 30 Canadian Review of American Studies 1 at 7.
78. 30 Canadian Review of American Studies.
79. See T. Morrison, ed., Race-ing Justice, En-gendering Power: Essays on Anita Hill, Clarence Thomas, and the Construction of Social Reality (New York: Pantheon Books, 1992).
80. Bumiller, Race-ing Justice, En-gendering Power: Essays on Anita Hill, Clarence Thomas, and the Construction of Social Reality 31 at 97. Susan Brison asserts, “[w]e are not taught to empathize with victims.” One of the reasons for this, she suggests, is that people prefer to deny the possibility that sexual assault could happen to them: “They cannot allow themselves to imagine the victim's shattered life, or else their illusions about their own safety and control over their lives might begin to crumble.” Brison's experience following the aftermath of her own random, violent sexual assault and attempted murder shows that people comfort themselves about the threat of sexual assault with illusions that she must have done something to provoke it, that sexual assault does not occur randomly. The complainant's experience in Ewanchuk, in contrast, shows us that, where there is no overt threat or use of violence, people find comfort in the notion that it really wasn't sexual assault at all.
81. See S.J. Brison, “Surviving Sexual Violence: A Philosophical Perspective” (1993) XXIV: 1 Journal of Social Philosophy 5 at 11.
82. A First Nations woman has accused former Reform MP Jack Ramsay of sexually assaulting her when she was a teenager and he an RCMP officer in Saskatchewan. The defense claims that, although he had to threaten to tell her parents that she was not a virgin to “get” her to consent, she did consent. In an initial response to the charge, Ted Byfield of the London Free Press defended Ramsay on the basis that “public perceptions of things like sex with native girls have changed radically in 31 years… Things regarded then as commonplace are now regarded as dire.” Moreover, he claims real Canadians understand this. First Nations women, by this account, belong in the category of “open territory victims”: their consent is deemed irrelevant because of who they are. Once again we see that whether she consented to this encounter or not is determined, not by her actions or words, but by her identity and presumed “moral character.” T. Byfield, “Media Canada aghast but Real Canada likes Ramsay” The London Free Press (12 June 2000) A11.
83. M. Dunn, “No doubt about it: There's no such thing as implied consent, high court rules in overturning sex assault acquittal” The Edmonton Sun (26 February 1999) 3.
84. Horeck, The Edmonton Sun 66 at 14. Moreover, the repeated mention of her dress in T-shirt and shorts (see e.g. the response to the bonnet and crinolines comment: “she had a lot less on than that…” by N. Waugh, “Fundamental differences battle it out” The Edmonton Sun (2 March 1999) 11) and of the massages exchanged between Ewanchuk and the complainant had the effect of turning her story from testimony of a sexual assault into what Smart has labelled a “pornographic vignette.”
85. See Smart, The Edmonton Sun 59 at 39.
86. “Perhaps the wrong of rape has proved so difficult to define because the unquestionable starting point has been that rape is defined as distinct from intercourse, while for women it is difficult to distinguish the two under conditions of male dominance:” MacKinnon, The Edmonton Sun 1 at 174.
87. Debates of the Senate 137: 116 (4 March 1999) at 2705 (A.C. Cools) [hereinafter Debates].
88. As Smart observes, “Being a sexual predator is regarded as normal, even desirable for men. Pressing a woman until she submits is a natural, pleasurable phallocentric pastime.” See Smart, Debates of the Senate 59 at 42.
89. Male persistence and female resistance form the cornerstone of heterosexual interaction: “the ground rules assume that men should be persistent in the face of a woman's passivity or reluctance… Stories of male persistence overcoming female passivity and reluctance are presented as erotic, not only in male-oriented pornography but also in the Harlequin romances… that are widely read by a largely female audience.” See Schulhofer, Debates of the Senate 61 at 61.
90. This was an expression that was posted, along with dozens like it, on window signs in response to the date-rape awareness campaign on the Queen's campus. See J. Torrens & J. Zima, “Residents try to ‘lighten up’ campaign” The Queen's Journal (13 October 1989) 3.
91. What is most interesting about the idea that women must strongly resist sexual assault in order to be believed is that it flies in the face of learned, traditional female sexual behaviour. The way in which women are scripted to behave (passive and coy) in our heterosexual discourse is exactly what they are punished for in sexual assault cases. That the complainant in Ewanchuk did not run screaming from the site is viewed as further evidence that she was actually consenting. For discussion of appropriate resistance, see S. Estrich, “Rape” in P. Smith, ed., Feminist Jurisprudence (New York: Oxford University Press, 1993) 158 at 160–161.
92. Hughes, Feminist Jurisprudence 2.
93. Feminist Jurisprudence, at 347.
94. “Courtship in Monosyllables”, Feminist Jurisprudence 4.
95. Ewanchuk (C.A.), Feminist Jurisprudence 3 at para. 12.
96. See M. Barlow and J. Winter, The big Black book: the essential views of Conrad and Barbara Amiel Black (Toronto: Stoddart, 1997).
97. B. Amiel, “Feminists, fascists, and other radicals” National Post (6 March 1999) B7.
98. “Judges have no right”, National Post 46.
99. Feminists “have a clear political agenda. Simply put, their agenda is to make it as easy as possible for women to complain against men of sexual assault…”, writes one commentator. See T.M. Engel, Letter to the editor, The Edmonton Journal (20 March 1999) A15.
100. “Judges have no right”, The Edmonton Journal 46. It is noteworthy that even a small story that ran in The Globe and Mail describing Ewanchuk's sentence is worded in a way that attributes blame to L'Heureux-DuW: “A strongly written decision by Madam Justice Claire L'Heureux-Dube” set off a war of words.”
101. See “Man who set judges”, The Edmonton Journal 17. On the subject of the characterization of Justice L'Heureux-DuM
102. see S. Sampert, Bitch on the Bench: Canada's national newspapers and feminist ideology in the “no means no” case (M.A. Thesis, University of Calgary 2000) [unpublished].
103. Amiel, Bitch on the Bench: Canada's national newspapers and feminist ideology in the “no means no” case 86.
104. Blatchford, Bitch on the Bench: Canada's national newspapers and feminist ideology in the “no means no” case 38
105. “He Said, She Said” National Post (26 February 1999) A3.
106. S. Ohler, “Groundswell of support rises for embattled McClung” National Post (3 March 1999) A6.
107. Blatchford, National Post 38.
108. Senator Anne Cools. Quoted in Ohler, National Post 92.
109. Debates, National Post 76 at 2707.
110. ‘“I'm a scapegoat’: Sex offender says he's a victim in judges' feud over no-means-no law” The Edmonton Sun (1 March 1999) 1.
111. B. Pilon, “Stuck in the Middle: Convicted sex felon says legal war of words in being waged at his expense” The Edmonton Sun (1 March 1999) 3.
112. Steel, The Edmonton Sun 33.
113. L. Faulder, “He had control. She had none at all” The Edmonton Journal (21 February 1999) B1.
114. A. MacDonald, Letter to the Editor, National Post (3 March 1999) A19.
115. See Jonas, National Post 65
116. Amiel, National Post 86
117. Debates, National Post 76 at 2705.
118. For an analysis of the anti-feminist political culture of the United States, including a discussion of the media's characterization of violence against women, see D.L. Rhode, Speaking of Sex: The Denial of Gender Inequality (Cambridge: Harvard University Press, 1997). The denial of the systemic nature of women's oppression also drives the public's negative reaction to pay equity and employment equity policies.
119. See A.B. Bakan & A. Kobayashi, Employment Equity Policy in Canada: An Interprovincial Comparison (Ottawa: Status of Women Canada, 2000).
120. Veronica Strong-Boag documents the anti-feminist backlashes to the first and second-wave feminist movements in Canada and points to the discourse of male victimization that emerges in response to feminism. See V. Strong-Boag, “Independent Women, Problematic Men: First- and Second-Wave Anti-Feminism in Canada from Goldwin Smith to Betty Steele” (1996) 29: 57 Social History 1 at 16–18.
121. R. Salutin, “Feminism, humanism and the battle of the judges” The Globe and Mail (4 March 1999) D1.
122. A. Coyne, “She said no. Any questions?” National Post (8 March 1999) A19.
123. K. Buchanan and C. Mathen, “Freedom to say ‘no’ without a crinoline” National Post (5 March 1999) A18.
124. See National Post 40.
125. P. Haag, Consent: Sexual Rights and the Transformation of American Liberalism (Ithaca and London: Cornell University Press, 1999) at xv.
126. See Consent: Sexual Rights and the Transformation of American Liberalism 1 and accompanying text.
127. C. Pateman, The Problem of Political Obligation: A Critique of Liberal Theory (Berkeley: University of California Press, 1985).
128. E. Hamilton & H. Cairns, eds., The Collected Dialogues of Plato. Including the Letters (New York: Pantheon Books, 1961).
129. J. Locke, Two Treatises of Government, P. Laslett, ed., (New York: Cambridge University Press, 1988) at 119.
130. R. v. Cook. Quoted in Hinch, Two Treatises of Government 20 at 284.
131. Ewanchuk (C.A.). Two Treatises of Government 3 at para. 62.
132. Two Treatises of Government, at para. 66.
133. MacKinnon, Two Treatises of Government 1 at 173.
134. See also Two Treatises of Government 77.
135. Schulhofer, Two Treatises of Government 61 at 4.
136. Estrich, Two Treatises of Government 80 at 168.
137. Schulhofer, Two Treatises of Government 61 at 4.
138. See S. Ehrlich, Representing Rape: language and sexual consent (New York: Routledge, 2001) at 25,67.
139. See Haag, Representing Rape: language and sexual consent 108.
140. Schulhofer, Representing Rape: language and sexual consent 61, at 17.
141. See Representing Rape: language and sexual consent 58.
142. Haag, Representing Rape: language and sexual consent 108 at xiv.
143. B. Balos & M.L. Fellows, “A Matter of Prostitution: Becoming Respectable” (1999) 74 N.Y.U. L. Rev. 1220 at 1259–1260.
144. 74 N.Y.U. L. Rev.
145. Sherene Razack, “Race, Space, and Prostitution: The Making of the Bourgeois Subject” (1998) 10: 2 C.J.W.L. 338 at 358.
146. R. Hall & L. Longstaff, “Defining consent” (1997) 147 New L.J. 840.
147. MacKinnon, 147 New L.J. I at 174–75
148. Estrich, 147 New L.J. 80 at 177.
149. MacKinnon, 147 New L.J., at 245.
150. See also R. West, “A Comment on Consent, Sex, and Rape” (1996) 2 Legal Theory 233.
151. Estrich, 2 Legal Theory 80 at 163.
152. Nedelsky, 2 Legal Theory 21 at 478.
153. 2 Legal Theory, at 477.
154. The emphasis on “No Means No” somehow submerges, perhaps out of necessity, the issue of quality beneath that of legality and legitimacy. West rightly notes that consent can transform an illegal act into a legal one, but it cannot “convert a rape into a wonderful act of intimacy; it converts it, at most, and again on their terms, into something which is, at best, not rape. It doesn't convert an act of either social or sexual intercourse into something we should celebrate.” See West, 2 Legal Theory 130 at 249.