National Post

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Saturday, March 06, 1999

Sometimes a massage isn't just a massage

Christie Blatchford
National Post

Not all sexual assaults are equal. It seems to me that this is what the boy judge, Alberta Court of Appeal Justice John McClung, was trying to say in his now-notorious decision in the Steve Ewanchuk case. Now, he said it badly. Oh my, did he ever. "It must be pointed out that the complainant did not present herself to Ewanchuk or enter his trailer in a bonnet and crinolines," he wrote last year in upholding the Edmonton man's acquittal; this is the line which sent first the girl judge, Madame Justice Claire L'Heureux-Dube of the Supreme Court of Canada, and later a shriek of girl lawyers, into fits of rage that he meant the victim had been inviting an attack by wearing shorts and a T-shirt.

"She was the mother of a six-month-old baby," Judge McClung continued, and, "along with her boyfriend, she shared an apartment with another couple." That was the line that feminists took to mean the judge was saying the victim was not a girl of "good" moral character and modest demeanour and that therefore any assault on her could not be taken seriously. "Romantic," the judge described Ewanchuk's intentions; well, hardly.

But still: If I'm right about the message the old boy was struggling (and miserably failing) to get across, then it makes him right -- or, at the very least, not the insensitive, sexist clod Judge L'Heureux-Dube painted him in her stinging rebuke of his decision, which she and her fellows on the Supreme Court overturned.

I think what Judge McClung meant by his clumsy remarks was that the 17-year-old victim, her tender years notwithstanding, had lived just a little bit. She had had a baby, so she knew something of pregnancy and pain and joy, and something of sleepless nights and the pleasures of breastfeeding, and something of feeling so tired all the time that your bones hurt. She had a boyfriend, so she knew something of sex and men and, one hopes, of love and tenderness, and perhaps something, as well, of quarrels that seem bigger at night than they do in the morning and the fun of kissing and making up. They had an apartment, so presumably the two of them knew something of leases, or movers, minimally of friends with strong arms and trucks who could be persuaded with a pizza to help move their gear, and something, too, of the rent being due, of bill paying, of too-thin wallets and too-full shopping carts piled with diapers and baby food, of all the mixed blessings that are the grownup's world.

None of this goes to the victim's moral character, nor does it imply any sexual looseness on her part, or in any way suggest she was "asking" to be sexually assaulted. But it does say she had a certain amount of life experience, that she was not an 11-year-old who could be easily tricked into entering first a van, and then a trailer, on the pretext of a job interview or, as a court in Toronto heard this week in the infamous murder case of a little girl named Alison Parrott, lured to a stadium by a man pretending to be a photographer.

That's one of the things I think Judge McClung was saying, that the victim in the Ewanchuk case was not a child. Children are completely fool-able; the rest of us aren't. Ewanchuk's victim had lived a little; since when is that a bad thing? I don't think Judge McClung was saying it was, either, only that if perhaps she was not so sophisticated that alarm bells ought to have gone off when Ewanchuk proposed he interview her for a part-time job in his trailer, reasonably, they might well have -- then, or when he began to massage her.

Madame Justice went to town on that one.

"One cannot imply," she wrote, "that once the complainant does not object to the massage in the context of a job interview, there is 'sufficient evidence' to support that the accused could honestly believe he had permission to initiate sexual contact. That would mean that complying to receive a massage is consent to sexual touching."

Agreeing to be massaged isn't agreeing to sexual touching? Not always it isn't. But sometimes, it is. In the real world of men and women, where routinely the blind lead the blind and the deaf talk to the deaf and no one is absolutely sure of anything, a massage is sometimes exactly what Madame Justice says it never is and never can be. My life experience tells me this. John McClung's seems to have been telling him the same thing. He may well have been dead wrong in this case. I happen to think he was. I think that this young woman may have been too scared, too unconfident, to object to the massage, and that her silence was not tantamount to consent, and that in the circumstances, Ewanchuk ought to have known it.

But if I didn't object to a massage, I might indeed be agreeing to more touching, or sexual touching, and the man who took my silence as consent might be correct. It can happen, it does happen. And this is where Madame Justice went off the rails: She went from the specifics of the Ewanchuk case to a sweeping generalization of all cases, saying that unless and until an accused takes reasonable steps to assure there is consent -- and actually asks the woman -- he can't claim to have an honest, but mistaken, belief to the contrary. All sexual assaults aren't equal. All victims aren't the same. All accuseds are not Steve Ewanchuk. Just as prosecutors have an obligation to treat their cases on a case-by-case basis, so should judges, I think. What might be the correct interpretation in the Ewanchuk case wouldn't be worth the paper it was written on with a complainant like me. Yet Justice L'Heureux-Dube seized the moment to get nasty and personal with Judge McClung and to lecture all Canadians.

Judge McClung wasn't adhering to archaic beliefs and rape myths, not in my book, anyway. He used impolitic language to speak common sense. It's sexual assault which is the terrible crime, not talking about it, however insensitively.

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