“From the Bar” is a new series on Elle Beaver in which current issues are discussed and dissected from a legal point-of-view by the extraordinarily intelligent (and mega-hottie) law student, Andrea V.
Let’s talk a little about consent. Specifically, let’s talk about when “No” means “Yes.”
Yeah, I get it. You read the Steubenville trial coverage and you know that consent means more than not saying “No.” You really need to get that “Yes.”
But what happens when “No” is supposed to be a sexy way of saying “Yes”? Let’s say you’re a little kinky. You want to say no, but you want the other person to ignore it. You want the other person to just know that when you say “stop,” you mean the exact opposite. Do you have to say “No…(kbutseriouslyyes)”?
Recently, the Ontario Court of Appeal sent a case about kinky consent back to retrial. In this case, a man accused of sexually assaulting his wife claimed he thought his wife was consenting because she said “No,” in a submissive voice.
The couple had had a history of Dominant/submissive sex. According to the wife, it had never gone past that point. According to the husband, it had (although he couldn’t think of a real example on the stand… oops!).
According to the wife, he attacked her, and she sobbed and tried to fight him off. She took a shower and went back to bed in sweats. According to the husband, he only kind of attacked her, and she wanted it anyway, and now she’s only making a stink because she wants custody of the kids.
The husband admits that she said “No,” but according to him, he thought that meant “Yes.” Apparently, “No,” wasn’t good enough. What she should have said was, “cabbage.” (Heads up to all our future rape victims out there – make sure you know the made-up safe word). In this case, the wife testified that she didn’t even know there was a safe word, and even though the husband was adamant that there was a safe word, he admitted it was from 2003.
I know what you’re thinking. Retrial? How the hell did this thing even get to the Ontario Court of Appeal?
Well, it’s kind of a good news/bad news scenario. The good news: the trial judge thought this story smelled like bullshit. He pretty much decided that he believed the wife and convicted the husband.
Here’s the bad news. The judge made his decision based on a balance of who he believed more. Our criminal system requires proof beyond a reasonable doubt. The Court of Appeal decided that there could have been a reasonable doubt here, and the trial judge didn’t even consider it. They sent it back for a new judge to retry the case, and factor in reasonable doubt.
In Canada, that threshold for convicting someone of a criminal charge is supposed to be high. It protects people from being wrongly convicted. It’s our way of saying, “if we’re going to take away your freedom and strip you of your rights, we’re going to be pretty damn sure you did it.”
But reasonable doubt is a funny thing when only two people know what really happened, and they both have completely different stories. There could always be reasonable doubt. Can anyone say that there is absolutely no reasonable doubt that his version of the story is true? And how can the Crown prove beyond a reasonable doubt that he couldn’t have honestly believed he had consent?
So we have a problem. On one hand, we have a basic principle of our justice system. On the other hand, the requirement of reasonable doubt in cases like this limits protection to victims of sexual assault.
If the Crown can’t prove that he knew she wasn’t consenting beyond a reasonable doubt, this case could mean that people with Dominant/submissive sexual histories are not protected from sexual assault with those partners.
I think we can all agree that people with violent sexual fantasies shouldn’t be allowed to be raped and offered no recourse through the justice system. And all sorts of weird lines come up. When does playing hard to get turn into “she/he was just being kinky”?
I hope that some Court will step in and say that because someone always has to be in the position to withdraw consent, kinky sex should only be engaged in if both parties are aware of what’s going on, and both parties have a way to withdraw consent at any time.
And really, I hope the judge that hears the retrial decides that her story is very likely the true one, but even if they were to consider his story, there is no way he could have thought he had consent, and convict him beyond a reasonable doubt. But that’s a hell of a burden to put on the Crown.
At the end of the day, what it comes down to is offering legal protection against sexual assault, and not making that protection dependent on the victim is into. We’re all entitled to have our own sexual fantasies, and we’re all entitled to be protected against rape.
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