How to avoid committing sexual assault

There are man crimes. Take sexual assault, for example. I don’t have the stats but I will be really surprised if most people convicted of sexual assault weren’t men. For example, the Criminal Code has special rules making it more difficult to challenge complainants during trials for sexual assaults. The purpose of these rules is obviously to protect female victims. The law of sexual assault regulates largely male behaviour, and men should know this law well. The guy who was convicted after sex with his twin brother’s girlfriend should have known better. This story hit the media because he appealed his conviction, and the issues he is raising on appeal show how complicated and fact-specific sexual assault law can be. The lesson for men in Canada is to be extra careful and avoid sex if you’re not sure. Read below for specific suggestions.

Sexual assault is any physical contact without consent “in circumstances of a sexual nature such that the sexual integrity of the victim is violated” (Martin’s Criminal Code). If you are accused of sexual assault, what the physical contact looked like to you is irrelevant. What matters is if the judge thinks it was sexual. He or she will look at many factors such as “[t]he part of the body touched, the nature of the contact, the situation in which it occurred, the words and gestures accompanying the act, and all other circumstances surrounding the conduct, including threats, which may or may not be accompanied by force … and the motive of the accused” (Martin’s Criminal Code). Sometimes your motive will be important and sometimes not.

In the twin brother case, the man had sex with the woman so the nature of physical contact was not an issue. The question on appeal is about the woman’s consent: was the man reckless or wilfully blind when he believed the woman agreed to the sexual contact? I don’t have the trial judge’s decision or the parties’ submissions on appeal, and I don’t want to draw conclusions about this case from the media’s reporting. So let’s say the case is just an inspiration for this essay.

Suppose the prosecution argued that the man had a higher duty to make sure the woman consented because he looked almost exactly like his brother. It’s a reasonable argument for the Crown to make because belief in consent is not a defence if you were “reckless” or “wilfully blind” in having this belief. It means if you knew there was a chance the woman didn’t consent or if you knew you had to do more to find out if she consented but didn’t because you didn’t want to, and the court finds she didn’t consent, you’re a criminal.

If you are the twin brother of a woman’s boyfriend, do you have to take extra steps to ensure her consent before sex even if you think the woman gave it? One theory could be that the exceptional similarity of twins creates a special risk that the woman will confuse one brother for another. If you know of this risk but go ahead, you are reckless even if you believe the woman consented. If you don’t know of this risk but know about the possibility of risk and prefer to ignore it, you are wilfully blind. In both cases, you are guilty of sexual assault if it turns out the woman didn’t consent.

As you can see, the law of sexual assault is complex and fact-specific. One reason why the Parliament and the courts chose to make it that way is to protect women because of many ways in which they could be against having sex and because they would not always be able to make it clear to the man, for example out of fear. The burden is clearly on men (assuming sexual assault is a man crime as I argued in the beginning) to make sure the woman consents before and during any sex. But if lawyers and judges disagree on the complex questions of consent, what should ordinary men in Canada do? (I am not talking about rapists, violent men, and other obviously criminal types.)

Criminal law must give clear guidelines, or it risks becoming unjust. Vague criminal law is unconstitutional in Canada. I am not arguing that the sexual assault law is vague but it’s complicated enough for men to have to follow the highest standard of conduct to really be on the safe side. In your normal sexual relations, the line between lawful and criminal conduct can be very thin. You can cross it easily. Here are some suggestion for all men in Canada:

  • before any touching, ask the woman if she consents and do not touch until she says yes
    • sexual touching includes hair, neck, hands, face, etc.—not just the obviously sexual areas
    • of course, it also includes the sexual act itself
  • if the woman says no, do not touch her; do not assume that she is playing; in criminal law, no means no
  • if you know you look like someone else she knows, tell the woman exactly who you are before any touching
  • during any touching, constantly monitor the woman for signs she stopped consenting
  • if you see any signs that she withdrew her consent, stop all touching immediately
  • videotape everything (preferably in high definition) in case the facts are disputed in the future
    • don’t forget to warn her you’re videotaping because uninformed consent doesn’t count
    • having two impartial witnesses during the whole process is even better
  • DO NOT DRINK before or during the physical contact with a woman: you risk impairing your judgement and missing the moment when she stops consenting. Self-induced intoxication is not a defence.
  • above all, guys, treat women with respect and avoid random sexual relations

(Post sponsored by AdviceScene)

12 Comments on "How to avoid committing sexual assault"

  1. Mendy White | March 8, 2010 at 4:43 pm |

    I don’t understand. If a person fakes a job description to have a woman agree to sleep with him, is that not the same idea?

    In America, trickery isn’t a crime. That she didn’t know her own husband, doesn’t mean that she was raped.

    I obviously do not condone this guy’s actions, but he shouldn’t go to jail for years because of it.

  2. What seems curious to me here is that consent seems to be on a post facto basis – that is, “Well, I consented at the time, but knowing what I do now, I don’t.” That raises some pretty major issues as well.

  3. Sorry, is this post a joke? Your list of suggestions to avoid a rape charge is absurd. Happy international woman’s day to you, if it is.

  4. I think it was intended to be absurd, but that was just my take. [Humour] tag usually clears that up, but I’ll let the author add it if he chooses.

  5. Wow, I really don’t know what to make of this post. It isn’t funny, so I don’t think it’s a joke, but the whole tone of the article and list of suggestions is absurd.

    “videotape everything (preferably in high definition) in case the facts are disputed in the future.”

    Seriously?

  6. Of course, some of my suggestions are intentionally exaggerated, but only some of the suggestions, not the whole post.

    I used hyperbole to show that it’s almost impossible to protect yourself from sexual assault charges and conviction in some cases that are in the grey area. I am not talking about clear-cut cases when a man forces a woman or obtains her consent by intentional fraud.

    The law in Canada seems to be that if the woman sees you, and you don’t lie to her about your identity, and she does everything freely, you may still be on the hook because you look too much like her boyfriend. That’s why the prosecution is alleging wilful blindness in this case.

    I am not saying it’s bad law but it is pretty complicated law that places the burden on men. So in those grey-area cases (NOT rapists or clear frauds) men could go to jail and get on sex offender lists for reasons that are at least debatable.

    The video camera and witnesses suggestion is of course a hyperbole. If a man has sex with a random stranger, and she later accuses him of sexual assault, his story may not get the same hearing in court because of evidentiary rules in Canada. Like I said, these rules have a good purpose, but they may catch innocent men. You can’t really do anything to be completely safe from false charges—hence my use of a hyperbole. Well, you can avoid random sex, and that’s what I also suggest.

    Overall, like I said in my post, the good rule is to respect women and avoid random sex with strangers.

  7. Another Nick | March 8, 2010 at 9:22 pm |

    Nick makes a very good point, though I suppose the counter-argument would be that she can’t reasonably consent when the man is committing fraud?

  8. With all due respect, and being mindful that neither of us have read the decisions or really know the details of this case- he is not going to jail because he looks too much like her boyfriend. He is (maybe) going to jail because he crawled into bed with a woman who believed that he was someone else. I find it hard to believe that he didn’t know that she didn’t know who he was. I don’t know what you consider to be ‘normal sexual relations’ but I really hope this isn’t too close to that ‘thin line’ you are talking about.

  9. The Edmonton Police Service recently made a public announcement that relates to this topic,

    The number of sexual assaults reported to Edmonton police rose in 2009 and investigators say many complaints involved victims who were under the influence of alcohol at the time…
    Campbell stressed that a sexual assault is never the fault of the victim. She said no means no the first time, and another drink can’t change that.

    While their focus was on the fact that consent cannot be given if someone is impaired, the message that any sexual contact without voluntary consent is assault was clear.

    Voluntary consent isn’t just an absence of “no”, but a presence of an enthusiastic “yes”. People communicate with body language, especially in sexual situations. Want to avoid committing sexual assault? Pay attention to what your partner is telling you.

    (@Nick (the first) consent must also be informed. She consented to sex with her partner, not her partner’s twin.)

    Aside from the hyperbolic and inappropriate videotape/witness suggestions, all of the tips you mentioned really boil down to being an attentive partner. It doesn’t require you to say “Do you give me permission to stroke your arm this way for 30 seconds, yes or no?” Paying attention to how your partner reacts to a certain touch, asking if something is ok, if your partner likes what you’re doing, what they would like you to do next, these type of questions ensure you’re both on the same page.

    It troubles me to see this presented as an unreasonable burden. What is so difficult about taking responsibility for your actions and how they affect another person? The fact is no one can prevent themselves from being sexually assaulted; they can only prevent themselves from committing sexual assault.

    Are you afraid of false reports? False reports for sexual assaults have found to be equal to or slightly below false reports for other crimes. The true problem is that very few assaults are ever reported. Stats Can figures only about 6% of assaults are reported, but we cannot know for sure. What we do know is that sexual assault is a huge problem in Canada – 1 in 3 women and 1 in 6 men will be assaulted in their lifetimes.

    Why do you take a snarky tone in suggesting ways people can prevent becoming offenders when it is something that so obviously needs to be talked about?

  10. That’s pretty bad that his twin took down his wife, but if she was coming on him so strong he just couldn’t hold himself back. He shouldn’t have done that too his brother. He was probably blinded by sexual desire. Tough one.. I would be so pissed at my brother!!!!! I wouldn’t send him to jail but I would whooppp him a new one!

  11. JamesHalifax | March 10, 2010 at 3:04 pm |

    Real justice would have been to let his twin brother beat the crap out of him. Then call the cops.

  12. Agreed w/ Laura.

    Seriously. The boyfriend’s twin brother sneaked into the boyfriend’s bed in which lay the drunk girlfriend. The twin had a duty to make sure that she was consenting to sex with himself, and not the boyfriend. Any reasonable person can see that. How would you feel if it was your sister?

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