Sexual Assault in Spousal Relationships, Continuous Consent, the Law

It is easy to say that equality rights must be taken into account, without actually letting them influence the judicial perceptions of relevance or consent. 1 he issue of what "counts" as sexual assault in legal and definitional terms, and from whose perspective, has been at the heart of much legal analysis and controversy.What qualifies as sexual assault in marital and other intimate relationships has been even more legally fraught.Legal tests for consent have figured prominently in these legal and social debates.Despite much advocacy, increased public awareness, and significant legal reform around sexual assault, many of the deeply held misapprehensions and stereotypical assumptions about sexual assault -what it actually looks like and especially what the absence of consent looks like-continue to thrive.These misapprehensions are perhaps most sharply observed in relation to sexual assaults in intimate relationships.Research has documented that the closer the relationship between the sexual aggressor and the victim, the less likely it is that a female victim will elect to report her experience of sexual violation or intrusion, and the less likely she will be to seek legal intervention. 2Of those incidents of sexual assault that do get processed criminally, the spousal cases appear to provide jurists with the greatest degree of difficulty.In particular, the difficulty seems to be in not letting popular misconceptions and traditional assumptions about what is "normal," typical and expected in the terrain of intimate sexual relationships, run interference with the rigorous legal analysis and application of the appropriate legal tests to the facts, which the law requires.Sexual assaults in intimate relationships then, especially spousal relationships, are therefore the least likely to come to the attention of the criminal justice system.This paper reviews some of the recent case law to illustrate the kinds of conceptual difficulties and legally flawed analyses which some judges are undertaking in relation to sexual assaults perpetrated in the context of intimate relationships.In these judgments, a number of specific themes are salient, including the mistaken judicial belief that the relational context is critical to assessing whether a sexual assault actually happened, or, put differently, the assumption that the relational context is critical to assessing whether what happened constituted a sexual assault.More specifically, these mistaken judicial beliefs are tied to the traditional assumption, only relatively recently repudiated legally with the 1983 amendments to the definition of sexual assault in the Criminal Code, that marriage confers upon men presumed rights of sexual access to their wives.Some judges appear to be using this assumption as part of the framework for analyzing a criminal sexual assault charge.Tied to this faulty reliance on traditional assumptions, is the apparent mistaken belief evident in the judgments analyzed in this paper, that the legal test for consent differs in an ongoing and "viable" intimate (spousal) relationship, from the legal test applied in other contexts.In fact, in some of the judgments, there is a quite astonishing assertion of a new legal test or burden for the Crown to meet in cases where the relational context of a sexual assault charge is a marital one.In legal terms, what seems to be 1

Criminology · Medical emergency · Poison control · Political science · Sexual assault · Human Factors and Ergonomics · Law · Legal Systems and Judicial Processes · Medicine · Multicultural Socio-Legal Studies · Psychology · Sexual Assault and Victimization Studies · Social Psychology

• The Language of Erasure

  Open Access•Nyasha Karimakwenda•Violence Against Women•2020

  Add to list

• Workplace Sexual Harassment and the “Unwelcome” Requirement

  Bethany Hastie•Canadian Journal of Women and the…•2020

  Add to list