Sexual Consent as Voluntary Agreement: Tales of “Seduction” or Questions of Law?

Abstract

This article proposes a rigorous method to map the law on to the facts in the legal analysis of sexual consent using a series of mandatory questions of law designed to eliminate the legal errors often made by decision makers who routinely rely on personal beliefs about and attitudes toward “normal sexual behavior” in screening and deciding cases. In Canada, sexual consent is affirmative consent, the communication by words or conduct of “voluntary agreement” to a specific sexual activity, with a specific person. As in many jurisdictions, however, the sexual assault laws are often not enforced. Reporting is lowest and non-enforcement highest in cases involving the most common type of assailants, those who are not strangers but instead persons the complainant knows, often quite well—acquaintances, supervisors or coworkers, and family members. Reliance on popular narratives about “seduction” and “stranger-danger” leads complainants, police, prosecutors, lawyers, and trial judges to truncate legal analysis of the facts and leap to erroneous conclusions about consent. Wrongful convictions and perverse acquittals, questionable plea bargains and ill-considered decisions not to charge, result. This proposal is designed to curtail the impact of prejudgments, assumptions, and biases in legal reasoning about voluntariness and affirmative agreement and to produce decisions that are legally sound, based on the application of the rule of law to the material facts. Law has long had better tools than the age-old and popular tales of “ravishment” and “seduction.” Those tools can and should be used.