National Post

Friday, March 05, 1999

Freedom to say 'no' without a crinoline

Kim Buchanan and Carissima Mathen
National Post

The breathtaking hyperbole in Edward Greenspan's guest column on these pages earlier this week demands a response. Mr. Greenspan absolves Alberta Court of Appeal Justice John McClung for his unprecedented public attack on Supreme Court Justice Claire L'Heureux-Dube on the basis that Justice L'Heureux-Dube "drew first blood" when she identified the myths and stereotypes reflected in Justice McClung's judgment.

Justice McClung is the Alberta judge who upheld Steve Ewanchuk's acquittal at trial because, although the complainant said "no" to his unwanted groping three times, there had been "implied consent," in part because the young woman did not enter Ewanchuk's trailer in "a bonnet and crinolines." Apparently, the 17-year-old did not realize that a bonnet and crinolines are the only appropriate attire for a woman who wishes to attend a job interview without signalling sexual availability to the interviewer.

In a welcome judicial reality check, the Supreme Court of Canada unanimously decided that Ewanchuk was guilty of assault. He repeatedly touched the complainant sexually, escalating to more invasive contact every time the complainant said "no." While Justice McClung took the view that this was not a crime, the Supreme Court has again made it clear: Canadian law does not require that a woman engage in a fist-fight with every man who wants to have sex with her, merely to demonstrate she really means it when she says "no."

Mr. Greenspan claims this decision shows "feminists" have "hijacked" the Supreme Court. Justice John Major wrote, and all the other judges agreed, "Society is committed to protecting the personal integrity, both physical and psychological, of every individual. Having control over who touches one's body, and how, lies at the core of human dignity and autonomy." Justice Major also held that both women and men are entitled to "the peace of mind of knowing that their bodily integrity and autonomy in deciding when and whether to participate in sexual activity will be respected." Is this the reasoning of feminists run amok?

In his column, Mr. Greenspan suggests that, by observing that Justice McClung's reasoning reflected old-fashioned myths and stereotypes about women, Justice L'Heureux-Dube displayed "intemperance," "a lack of balance," and "terrible judgment." He claims that Justice L'Heureux-Dube "labelled" Justice McClung "the male chauvinist pig of the century, the chief yahoo from Alberta, the stupid, ignorant, ultimate sexist male jerk." She didn't.

Justice L'Heureux-Dube simply pointed out in her concurring reasons that Justice McClung's reasons rested on stereotypical assumptions about women and sexual assault. Were her comments unfair, as Mr. Greenspan claims?

In his reasons, Justice McClung pointed out that the complainant "was the mother of a six-month-old baby and that, along with her boyfriend she shared an apartment with another couple." Justice L'Heureux-Dube wondered why Justice McClung had found it necessary to highlight these facts, which were irrelevant to the issue of consent. Justice L'Heureux-Dube asked rhetorically: "Could it be to express that the complainant is not a virgin? . . . The implication is that if the complainant articulates her lack of consent by saying 'no,' she really does not mean it and even if she does, her refusal cannot be taken as seriously as if she were a girl of 'good' moral character."

Apparently, that is exactly what Justice McClung meant. In an interview the next day, Justice McClung complained that his "bonnet and crinolines" comment had been misinterpreted: "That was in the judgment because I was talking about her sexual maturity, not the way she was dressed . . . If you read the whole paragraph, what follows is the fact that she had a six-month-old child and she was living with her boyfriend with another couple. . . . [she] was not lost on her way home from the nunnery."

It was perfectly proper for Justice L'Heureux-Dube to debunk the myth that, if a woman is not a virgin, she is less believable, deserves to be assaulted, is not harmed by sexual assault, or is more likely to consent to sex. The Supreme Court is charged with the responsibility of establishing the principles that guide our criminal law. Justice L'Heureux-Dube's reasons make it clear that stereotypical assumptions about women have no place in the law of sexual assault.

Mr. Greenspan's inflammatory rhetoric aside, the Ewanchuk decision was no revolution. The Supreme Court simply confirmed the law that was on the books already (but the Alberta courts had ignored): Every person is entitled to decide whether, when, and with whom they wish to be sexually involved. Submission out of fear is not consent to sex. Every person is entitled to have his or her "no" respected. A woman's dress or sexual history do not make it alright to sexually assault her.

Events of the past few days should not be allowed to obscure the real significance of the Supreme Court's unanimous decision in Ewanchuk; the decision simply affirms every individual's right to physical integrity and ensures that myths and stereotypes about women should not influence our sexual assault law, or our judges.

Kim Buchanan is a staff lawyer, and Carissima Mathen is the director of litigation, with the Women's Legal Education and Action Fund (LEAF).

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