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

Published online by Cambridge University Press:  18 July 2014

Joanne Wright
Joanne Wright
Affiliation:
Department of Political Science, Brock University / Rutgers University, St. Catherines (Ontario)CanadaL2S 3A1, [email protected]
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Abstract

This paper analyses the public discourse regarding consent and sexual violence that emerged in response to the Ewanchuk (“bonnet and crinolines”) case. Analyzing the debate that ensued in the editorial pages of the National Post, I suggest that the strong response to Ewanchuk stems from the way in which participants in the debate interpreted the case through the lens of their own personal - and gendered -experience. The reaction is also the result of a clash between the dominant cultural-sexual script of heterosexual interaction, on the one hand, - a script which celebrates masculine sexual aggression, and the consensual script encoded in Canada's “No Means No” legislation, on the other. Finally, to a public already skeptical of feminism, Ewanchuk symbolized the feminist “take-over” of the Supreme Court. I argue, as well, that the interpretation of consent embraced in the dominant cultural-sexual script represents a considerable departure from the liberal ideal of free and voluntary consent in its reliance on a notion of “inferred” consent and its Hobbesian obfuscation of coercion and consent. Ultimately, Ewanchuk reflects the persistence of so-called common sense attitudes about sexual violence in spite of legal reforms, and it raises questions about whether consent can be defined in terms that would be meaningful and emancipatory for women.

Résumé

Cet article est une analyse du discours public autour de la notion de consentement et de violence sexuelle, suite à la cause Ewanchuk («bonnet et crinoline»). L'analyse du débat qui s'ensuivit dans les pages editoriales du National Post me porte à croire que la vive réaction à l'affaire Ewanchuk est liée à l'expérience personnelle et sexuée («gendered») des participants au débat, ce qui aurait influencé leur interprétation de la cause. La réaction fut également le résultat d'un conflit entre le modèle culturo-sexuel dominant des interactions hétérosexuelles (un modèle qui célèbre l'agressivité sexuelle masculine) et un modèle consensuel tel que prévu par le droit canadien selon le principe du «non veut dire non». Enfin, pour un public déjà sceptique à l'endroit du féminisme, la cause Ewanchuk fut un symbole de la prise de pouvoir de la Cour suprême par les féministes. Je soutiens que l'interprétation du consentement selon le modèle dominant représente une dérogation importante à l'idéal libéral du consentement libre et volontaire. En effet, elle s'appuie sur une notion de consentement «tacite» et le sens de «contrainte» et de «consentement» s'en voit obscurci. En fin de compte, la cause Ewanchuk reflète la persistance des attitudes découlant du sens commun face à la violence sexuelle et ce, malgré les réformes juridiques. L'affaire soulève aussi la question si le consentement peut être défini selon des termes significatifs et émancipateurs pour les femmes.

Type
Off-Theme/Hors thème
Information
Canadian Journal of Law and Society / La Revue Canadienne Droit et Société , Volume 16 , Issue 2 , August 2001 , pp. 173 - 204
Copyright
Copyright © Canadian Law and Society Association 2001

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References

1 See especially Pateman, C., The Sexual Contract (Stanford, CA: Stanford University Press, 1988)Google Scholar; Pateman, C., The Disorder of Women (Stanford, CA: Stanford University Press, 1989)Google Scholar; MacKinnon, C.A., Toward a Feminist Theory of the State (Cambridge: Harvard University Press, 1989).Google Scholar

2 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. See Delisle, R.J., “The New Rape Shield Law and the Charter” (1993) 42 U.N.B.L.J. 335Google Scholar; and Hughes, P., “From a Woman's Point of View” (1993) 42 U.N.B.L.J. 341.Google Scholar

3 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 (C.A.)], dismissing appeal from acquittal by Moore J.

4 Gunter, L., “Courtship in monosyllables: poor manners distract us from the high court's sophistry” National Post (1 March 1999) A18Google Scholar [hereinafter “Courtship in monosyllables”]. See also the editorial on the same subject, “Assaulting the law” National Post (1 March 1999) A19.

5 Ewanchuk (S.C.C), supra note 3 at para. 7.

6 Ibid. at para. 8.

7 Ewanchuk (CA.), supra note 3 at para. 44.

8 Ewanchuk (S.C.C.), supra note 3 at para. 15.

9 As quoted in Ewanchuk (C.A.), supra note 3 at para. 44.

10 Ibid. at para. 71.

11 Ibid. at para. 45.

12 Ibid. at para. 4.

13 Ibid. at para. 4.

14 Ibid. at para. 21. 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 Johnson, R., “The Persuasive Cartographer: Sexual Assault and Legal Discourse in R. v. Ewanchuk” in MacDonald, G., ed., Social Context and Social Location: New Struggles for Old Law (Peterborough, ON: Broadview Press, forthcoming in 2001), n. 8.Google Scholar

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18 Ewanchuk (S.C.C.), supra note 3 at para. 27.

19 Ibid. at para. 29.

20 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 Hinch, R., “Inconsistencies and Contradictions in Canada's Sexual Assault Law” XIV: 3Can. Pub. Pol. 282.Google Scholar

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23 Ibid. at para. 58.

24 Ibid. at para. 82.

25 Ewanchuk (C.A.), supra note 3 at para. 67.

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28 Ibid. at para. 103.

29 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, supra note 20 at 288. 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:” Backhouse, C., Petticoats and Prejudice: Women and Law in Nineteenth-Century Canada (Toronto: Osgoode Society/Women's Press, 1991) at 87.Google Scholar

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32 Quoted in Ohler, S., “Judge reiterates belief that teen wasn't assaulted” National Post (27 February 1999) A1.Google Scholar

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36 See Steel, supra note 33 at 22.

37 For example, the debate surrounding Ewanchuk might have focused upon the needs of survivors of sexual assault, the prevalence of sexual assault in Canada, and the problem of male violence against women. None of these themes emerged, however, as any more than sidelines.

38 Blatchford, C., “Sometimes a massage isn't just a massage” National Post (6 March 1999) B8.Google Scholar

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40 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 Yaqzan, M., “Opinion: ‘Rape’ Past and Present” The Brunswickan (8 November 1993) 7.Google Scholar

41 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 Grauer, S., Letter to the Editor, National Post (1 March 1999) A19.Google Scholar

42 Ibid.

43 Los, M. and Chamard, S.E., “Selling newspapers or educating the public? Sexual violence in the media” (1997) 39 Can. J. Crim. 293 at 318.Google Scholar

44 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 Powell, K., “Ruling ignores reality, prof says” The Edmonton Journal (3 March 1999) A4.Google Scholar This was also Matin Yaqzan's point, that men require sexual gratification and will use any means to achieve it. See supra note 40.

45 See Kimber, S., “Not Guilty”: the trial of Gerald Regan (Toronto: Stoddart, 1999).Google Scholar

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47 Greenspan, E.L., “Judge Koziński, I beg to differ” National Post (11 March 1999) A18Google Scholar [hereinafter “Judge Koziński”].

48 Blatchford, supra note 38.

49 Repo, M., “The Ewanchuk ruling is no reason to rejoice” The Globe and Mail (4 March 1999) A17.Google Scholar

50 Ibid.

51 van Dijk, T.A., Racism and the Press (London/New York: Routledge, 1991) at 207.Google Scholar

52 Ibid.

53 Ibid.

54 Lawrence, E., quoted in Bannerji, H., “Introducing Racism: Notes Towards an Anti-Racist Feminism” (1987) 16:1Resources for Feminist Research 10 at 10.Google Scholar

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56 E. Lawrence, supra note 54. On common sense, see also Winter, J., Common Cents: media portrayal of the Gulf War and other events (Montreal: Black Rose, 1992).Google Scholar

57 Repo, supra note 49.

58 See Lacey, N., Unspeakable Subjects: Feminist Essays in Legal and Social Theory (Oxford: Hart Publishing, 1998) at 121Google Scholar; and Bronnit, S., “The Direction of Rape Law in Australia: Toward A Positive Consent Standard” (1994) 18: 5Criminal Law Journal 249 at 251–53.Google Scholar

59 Smart, C., Feminism and the Power of Law (London and New York, Routledge, 1989) at 45.CrossRefGoogle Scholar

60 Ibid.

61 An expression used by a Michigan law enforcement official to describe rape reform. Quoted in Schulhofer, S.J., Unwanted Sex: The Culture of Intimidation and the Failure of Law (Cambridge, MA: Harvard University Press, 1998) at 39.Google Scholar

62 “Judge Kozinski”, supra note 47.

63 Ibid.

64 “Courtship in Monosyllables”, supra note 4. Gunter chastises feminists for defending Bill Clinton on charges of sexual assault against Kathleen Willey while demonizing Ewanchuk and, by extension, McClung. See Gunter, L., “Feminist attitude is two-faced,” The Edmonton Journal (2 March 1999) A8.Google Scholar

65 Jonas, G., “The Canadian matriarchy's reign of terror” The Toronto Sun (4 March 1999) 1.Google Scholar

66 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 Horeck, T., “‘They did worse than nothing’: Rape and Spectatorship in The Accused” (2000) 30 Canadian Review of American Studies 1 at 7.CrossRefGoogle Scholar

67 Ibid.

68 See Morrison, T., ed., Race-ing Justice, En-gendering Power: Essays on Anita Hill, Clarence Thomas, and the Construction of Social Reality (New York: Pantheon Books, 1992).Google Scholar

69 This is a more complicated issue than it might seem, as some survivors of sexual assault do not recognize themselves as such and actively avoid taking up the role of victim. Just as it is easier for some men not to come to terms with their unethical sexual behaviour, it can also be more comfortable for women not to question their own sexual experiences too deeply.

70 I have witnessed the opposite calculation in teaching a women's studies class, in which a male student confronted his past experience and found his own ethics lacking. The class was not meant to force people to rethink their own experiences, but it seems that when the topics of sexual assault and consent arise, this process inevitably follows.

71 Bumiller, supra note 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. See Brison, S.J., “Surviving Sexual Violence: A Philosophical Perspective” (1993) XXIV: 1Journal of Social Philosophy 5 at 11.CrossRefGoogle Scholar

72 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.” Byfield, T., “Media Canada aghast but Real Canada likes Ramsay” The London Free Press (12 June 2000) A11.Google Scholar

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75 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, supra note 1 at 174.

76 Debates of the Senate 137: 116 (4 March 1999) at 2705 (A.C. Cools) [hereinafter Debates].

77 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, supra note 59 at 42.

78 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, supra note 61 at 61.

79 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 Torrens, J. & Zima, J., “Residents try to ‘lighten up’ campaign” The Queen's Journal (13 October 1989) 3.Google Scholar

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82 Ibid. at 347.

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115 Ibid. at para. 66.

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117 Schulhofer, supra note 61 at 4.

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133 Ibid. at 477.

134 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, supra note 130 at 249.